Henry Cook v. Don Smith ( 2019 )

FIFTH DIVISION
MCFADDEN, P. J.,
RICKMAN and MARKLE, JJ.
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.
http://www.gaappeals.us/rules
March 1, 2019
In the Court of Appeals of Georgia
A18A1481. COOK v. SMITH et al.
MCFADDEN, Presiding Judge.
This appeal challenges a trial court order granting summary judgment to the
members of a county board of education on the basis of sovereign immunity. Because
the trial court correctly ruled that the claims against the board members are barred by
sovereign immunity, we affirm.
1. Record citations.
The rules of this court require that in an appellant’s brief, “[r]ecord and
transcript citations shall be to the volume or part of the record or transcript and the
page numbers that appear on the appellate record or transcript as sent from the trial
court.” Court of Appeals Rule 25 (a) (1). The appellant’s brief in this case, however,
does not contain cites to the appropriate volumes or parts of the appellate record, and
instead references trial court case numbers and records. The appellees’ brief adopts
the appellant’s faulty method and likewise fails to make appropriate citations to the
appellate record. See Court of Appeals Rules 25 (b) (1) & (c) (2).
The rules of this court “were created, not to provide an obstacle, but to aid
parties in presenting their arguments in a manner most likely to be fully and
efficiently comprehended by this court.” In re Estate of Russell, 347 Ga. App. 258,
259 (1) (819 SE2d 68) (2018) (citation and punctuation omitted). “[B]riefs that fail
to provide proper citations can hinder this [c]ourt’s consideration of the parties’
arguments on appeal.” May v. S. E. GA Ford, Inc., 344 Ga. App. 459 n. 1 (811 SE2d
14) (2018) (citations and punctuation omitted). And such deficient briefs “are not
merely an inconvenience [but may constitute] grounds for refusing to consider a
party’s contentions.” Id. (citation and punctuation omitted). “While we will
nonetheless review [the] claims of error to the extent we are able to ascertain them,
[the parties] will not be granted relief should we err in construing [their]
nonconforming appellate brief[s].” In re Estate of Russell, supra (citation and
punctuation omitted).
2. Facts and procedural posture.
2
In April 2009, Henry Cook, a member of the Randolph County Board of
Education, filed an action against three other board members – Don Smith, Dymple
McDonald, and James Mock (collectively “the board members”). Cook sought
injunctive relief regarding the board members’ selection of Mock to serve as board
chairman prior to the expiration of Cook’s term in that role. The trial court
subsequently held Cook in contempt for violating a court order and also found that
a local law at issue in the case, which concerned procedures for selecting the board
chairperson, was not unconstitutional. Cook appealed to the Georgia Supreme Court,
which affirmed the trial court’s contempt ruling but reversed its constitutionality
ruling, finding that the law in question was not constitutional as applied to Cook. See
Cook v. Smith, 288 Ga. 409 (705 SE2d 847) (2010).
On the return of the case to the trial court, Cook sought, among other things,
to enforce a purported settlement of the case allegedly voted on by the board and to
recover attorney fees. The board members moved for summary judgment on, among
other grounds, the doctrine of sovereign immunity. In the meantime, Smith and
McDonald had filed their own lawsuit against the Randolph County School District,
seeking certain injunctive relief. Although Cook was not a party to that lawsuit, the
trial court nevertheless consolidated it with Cook’s action against the board members.
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The trial court did not rule on the board members’ motion for summary judgment in
Cook’s case, but denied Cook’s claims to enforce the purported board vote of
settlement and for attorney fees, and ordered certain relief in the consolidated lawsuit
to which Cook was not a party.
Cook appealed to this court, and we transferred the case to our Supreme Court
on the basis that it involves mandamus relief which was, at that time, within the sole
jurisdiction of the Supreme Court.1 The Supreme Court transferred the case back to
this court, finding that it does not involve mandamus and instead involves injunctive
relief. This court then remanded the case to the trial court, noting that the trial court
had not ruled on the issue of sovereign immunity raised by the board members and
directing the trial court to hold a hearing and rule on whether sovereign immunity
bars Cook’s claims. After a hearing, the trial court found that the claims are barred
by sovereign immunity and granted summary judgment to the board members. Cook
appeals.
3. Sovereign immunity.
1
The Supreme Court used to have sole appellate jurisdiction over cases
involving the extraordinary remedy of mandamus. See Liberty County School Dist.
v. Halliburton, 328 Ga. App. 422, 425 (1) (762 SE2d 138) (2014). But OCGA § 15-3-
3.1 (a) (4) now gives this court appellate jurisdiction in all cases involving
extraordinary remedies, except death penalty cases.
4
Cook contends that the trial court erred in granting summary judgment to the
board members. We disagree.
“Suits against public employees in their official capacities are in reality suits
against the state and, therefore, involve sovereign immunity.” Cameron v. Lang, 274
Ga. 122, 126 (3) (549 SE2d 341) (2001) (citations and punctuation omitted). “Simply
put, the constitutional doctrine of sovereign immunity forbids our courts [from]
entertain[ing] a lawsuit against the [s]tate without its consent.” Lathrop v. Deal, 301
Ga. 408 (801 SE2d 867) (2017). Accord Cameron, supra (sovereign immunity
protects all levels of government from legal action unless the immunity has been
waived).
The Georgia Constitution provides: “Except as specifically provided in
this Paragraph, sovereign immunity extends to the state and all of its
departments and agencies. The sovereign immunity of the state and its
departments and agencies can only be waived by an Act of the General
Assembly which specifically provides that sovereign immunity is
thereby waived and the extent of such waiver.” Ga. Const. Art. I, Sec.
II, Par. IX (e). This [c]ourt has repeatedly ruled on the scope of this
provision. The plain and unambiguous text of the 1991 constitutional
amendment shows that only the General Assembly has the authority to
waive the [s]tate’s sovereign immunity.
City of Union Point v. Greene County, 303 Ga. 449, 453 (1) (812 SE2d 278) (2018)
(citation and punctuation omitted).
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Cook’s suit against the board members in their official capacities was in reality
a suit against the state that is barred by sovereign immunity unless such immunity has
been waived by the general assembly. See Thigpen v. McDuffie County Bd. of Educ.,
255 Ga. 59 (335 SE2d 112) (1985) (county board of education entitled to sovereign
immunity); Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878) (1980) (school
boards and other authorities in charge of public schools enjoy sovereign immunity);
DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 636 (1) (734 SE2d 466)
(2012) (school board and board members enjoy sovereign immunity), overruled on
other grounds in Rivera v. Washington, 298 Ga. 770, 778 n. 7 (784 SE2d 775) (2016).
See also Georgia Assn. of Professional Process Servers v. Jackson, 302 Ga. 309, 311
(1) (806 SE2d 550) (2017) (sovereign immunity bars claims for injunctive relief).
And Cook, as the party seeking to benefit from a waiver of the state’s sovereign
immunity, has the burden to establish such a waiver. “Sovereign immunity is not an
affirmative defense that must be established by the party seeking its protection.
Instead, immunity from suit is a privilege that is subject to waiver by the [s]tate, and
the waiver must be established by the party seeking to benefit from the waiver.”
Bomia v. Ben Hill County School Dist., 320 Ga. App. 423, 424 (740 SE2d 185)
(2013) (citation omitted).
6
Cook has failed to meet his burden of establishing a waiver of sovereign
immunity. “If the consent of the [s]tate [to a waiver of sovereign immunity] is to be
found, it must be found in the [Georgia] Constitution itself or the statutory law.”
Lathrop, supra at 444 (IV). Cook, however, has not pointed to anything in the
constitution or to any act by the General Assembly waiving sovereign immunity in
this case. Id. at 425-426 (III) (“The parties here point to no statutory law that works
a specific waiver of sovereign immunity for suits like this one, and . . . [their claim
that] the Constitution of 1983 authorizes such a suit . . . [is] incorrect.”). Because
Cook has failed to show a waiver of sovereign immunity, the trial court did not err in
granting summary judgment to the board members.
4. Injunctions.
Cook enumerates that the trial court erred in granting injunctions. It appears
that he may be referring to matters in the consolidated case to which he was not a
party since he has referenced a hearing held on the motion to consolidate, but he has
not cited specific parts of the appellate record where we can find the precise
injunctive orders in question or where we can determine if the issues now sought to
be asserted were preserved for appellate review. “[I]t is not the duty of this [c]ourt to
cull the record on a party’s behalf to locate information or facts in support of a party.”
7
Demere Marsh Assoc. v. Boatright Roofing and Gen. Contracting, 343 Ga. App. 235,
236 n. 1 (808 SE2d 1) (2017). Accord RTA Strategy v. Silver Comet Terminal
Partners, 347 Ga. App. 266, 270 (1) (817 SE2d 720) (2018) (“It is not the function
of this [c]ourt to cull this voluminous record on behalf of any party.”) (citation
omitted). Accordingly, this enumeration presents nothing for review. See Henderson
v. State, 304 Ga. 733, 739 (4) (822 SE2d 228) (2018).
5. Remaining enumerations.
Given our holdings above, we need not address Cook’s remaining
enumerations of error.
Judgment affirmed. Rickman and Markle, JJ., concur.
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