Rintoul v. Tolbert

• Decision Date: 13 June 2017
• Docket Number: A17A0424
• Citation: 802 S.E.2d 56
• Parties: RINTOUL et al. v. TOLBERT et al.
• Court: Georgia Court of Appeals

341 Ga.App. 688

802 S.E.2d 56

RINTOUL et al.

v.TOLBERT et al.

A17A0424

Court of Appeals of Georgia.

June 13, 2017

Nancy Val Preda, for Appellant.

Earnest H. Delong Jr., Atlanta, for Appellee.

Bethel, Judge.

Katherine R. Rintoul and William R. Garner appeal the grant of partial summary judgment against them. They argue the superior court erred in (1) considering the untimely motion; (2) granting the motion on the basis of res judicata as to Garner's claim of constructive discharge under Georgia's Whistleblower Act; and (3) granting certain defendants governmental immunity. We reverse the grant of summary judgment with respect to Garner's claim of constructive discharge under Georgia's Whistleblower Act because the superior court improperly found the claim barred by res judicata. We affirm the grant of summary judgment on the remaining grounds because the superior court has discretion to consider the motion and because there is no remedy against individual defendants in their personal capacity under the Whistleblower Act.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." OCGA § 9-11-56 (c). "In response to a properly supported motion for summary judgment which pierces the pleadings, plaintiffs may not stand upon their allegations, but must come forward with evidence to contravene defendants' proof or suffer judgment." Essien v. CitiMortgage, Inc. , 335 Ga. App. 727, 727, 781 S.E.2d 599 (2016) (citations omitted).

Summary judgment enjoys no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Cowart v. Widener , 287 Ga. 622, 624 (1) (a), 697 S.E.2d 779 (2010) (citations and punctuation omitted).

Viewed in this light, the evidence¹ shows Rintoul was the city clerk and the librarian for the City of Pendergrass, among her other responsibilities. Garner was a police officer for the City of Pendergrass. Rintoul and Garner approached the mayor, Melvin Tolbert, with information and documents of what they alleged to be misappropriation of city funds, misuse of city property, bribery, and verbal abuse by the police chief and city administrator, Robert J. Russell, III. The mayor promised to investigate the allegations and respond to Rintoul and Garner within a week. The city attorney reviewed the information and documents presented to the mayor and concluded that they did not support the claims of financial or legal wrongdoing. But the investigation did show that Russell had been verbally abusive to employees. Russell was subsequently removed as police chief.

Rintoul and Garner allege that their reporting of these alleged misdeeds to the mayor led to a series of retaliatory actions, including the termination of Rintoul and the "constructive discharge" of Garner.² The mayor and the other defendants claim that the actions Rintoul and Garner argue were retaliatory actually resulted from the economic recession that had begun in 2008.

A consolidated action was filed in federal court against the city, the mayor, Russell, and several city council members by Rintoul and Garner, claiming retaliation in violation of their First and Fourteenth Amendment rights, conspiracy to deprive them of those same rights in violation of 42 U.S.C. § 1985, and violation of Georgia's Whistleblower Act, OCGA § 45-1-4. The federal court granted summary judgment on the federal claims and dismissed the Georgia Whistleblower Act claim without prejudice.

Rintoul and Garner then filed suit against Russell, the mayor, several city council members, and two police officers (collectively, the "defendants") in the superior court of Jackson County, alleging a number of disturbing allegations, including that Rintoul's termination and Garner's "constructive discharge" resulted from their whistle-blowing activity, as well as claims for RICO violations, tampering with evidence, threatening and influencing witnesses, theft by conversion, theft of services, criminal conspiracy, bribery, extortion, and false statements, libel and slander. The defendants moved for summary judgment, arguing, among other things, that the federal court judge's finding that Garner's work environment and conditions of employment did not "present the type of unbearable circumstances that the Eleventh Circuit has previously found necessary to sustain a constructive discharge claim" rendered their whistle-blower claim res judicata. The superior court granted the defendants' motion on all counts except for Rintoul and Garner's whistle-blower claim. With respect to that claim, the superior court found that the federal judge's "determination that Garner was not constructively discharged for the purposes of the First Amendment was not dispositive of whether he was constructively discharged for the purposes of the Georgia Whistle-Blower [sic] Act." However, the superior court judge responsible for this order passed away soon thereafter, and another judge was appointed his successor. Following the appointment, the defendants refiled their motion for summary judgment with respect to Garner's whistleblower claim, again arguing res judicata. The second judge granted the motion, and this appeal followed.

1. Rintoul and Garner argue that the superior court erred in considering the defendants' motion for summary judgment filed after the deadline for such motions set in the court's pretrial order. The superior court's pretrial order provided that all motions (except motions in limine or to strike all or part of a deposition) were to be filed by August 15, 2013. The order further provided that it could "not be amended except by consent of the parties and the Court or by Order of the Court to prevent manifest injustice." Defendants filed their second motion for summary judgment nearly two years after this deadline without consent of Rintoul or Garner or a court order. But the trial court has discretion to extend the deadline for filing and hearing motions for summary judgment. Blakey v. Victory Equip. Sales, Inc. , 259 Ga. App. 34, 34 (1), 576 S.E.2d 288 (2002) ; Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC , 319 Ga. App. 393, 398 (4), 740 S.E.2d 635 (2012), overruled on other grounds by Artson, LLC v. Hudson , 322 Ga. App. 859, 862 n.1, 747 S.E.2d 68 (2013) ; Uniform Rules for the Superior Courts, Rule 6.6 ("Motions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment."). Further, "it is within the discretion of a trial judge to consider a renewed motion for summary judgment even without an expansion of the record. There is nothing in OCGA § 9-11-56 limiting the number of times a party may make a motion for summary judgment." Hubbard v. Dep't of Transp. , 256 Ga. App. 342, 344 (1), 568 S.E.2d 559 (2002) (citations omitted). Therefore, we find no error in the superior court's consideration of the late filed motion. See Kammerer Real Estate Holdings , 319 Ga. App. at 398 (4), 740 S.E.2d 635.

2. Rintoul and Garner argue that the superior court erred in granting summary judgment as to Garner's claims of constructive discharge and retaliation under OCGA § 45-1-4 on the basis of res judicata. In Georgia, OCGA § 9-12-40 represents a codification of the common-law doctrine of res judicata, and provides that "[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside." The purpose of this doctrine "is to prevent the re-litigation of claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of...