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Thomas v. Gregory

Court of Appeals of Georgia

May 1, 2015

THOMAS
v.
GREGORY

Official immunity. DeKalb State Court. Before Judge Gordon.

Steven Salcedo, for appellant.

Terri N. Gordon, for appellee.

OPINION

Page 383

McMillian, Judge.

David Neil Thomas filed a complaint seeking recovery for injuries sustained when DeKalb County police officer Nathan C. Gregory placed him under arrest after erroneously entering the model number rather than the serial number of Thomas's handgun while checking the gun's registration, leading to an incorrect return that the gun had been stolen. Pursuant to OCGA § 9-11-12 (b) (6), Gregory filed a motion to dismiss, asserting that Thomas's claims were barred by the doctrine of official immunity. The trial court granted his [332 Ga.App. 287] motion, finding that Thomas's complaint alleged a discretionary act rather than a ministerial one. Thomas now appeals, and for the reasons discussed below, we reverse.

" On appeal, we review a trial court's decision to grant or deny a motion to dismiss de novo." Liberty County School Dist. v. Halliburton, 328 Ga.App. 422, 423 (762 S.E.2d 138) (2014).[1] And " [i]n reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant's favor." (Citation and punctuation omitted.) Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 S.E.2d 100) (2007). We may also consider any exhibits attached to and incorporated into the complaint and the answer, also construing them in the appellant's favor. Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) (764 S.E.2d 398) (2014).

As alleged in Thomas's complaint, on November 6, 2011, Gregory, along with two John Doe defendants,[2] responded to a call regarding a fight at Major League Bar & Grill on Northlake Parkway in Tucker. Thomas, who denies any involvement in that fight, was exiting the parking lot when he was pulled over and questioned by Gregory. Thomas advised the officers that he had two weapons, which he had purchased new, and that he had a license for both weapons. One was a Smith & Wesson 9mm, model number SW9VE. Thomas was placed in the back of a patrol vehicle while Gregory ran the weapons through the National Crime Information Center (" NCIC" ) database to determine whether they were stolen. According to Thomas, he witnessed Gregory input the model number as the serial number in the NCIC database search and informed him that he was entering the wrong number as the serial number. Gregory denied that he was inputting the wrong number and told Thomas that " he could do what he wanted." As a result of the input error, the weapon was shown as stolen, and an arrest warrant was obtained against Thomas for theft by receiving stolen property.

In his complaint, Thomas alleges that Gregory's incorrect entry of the model number into the NCIC database violated the DeKalb County policy of " Neglect of Duty." [3]

Page 384

He further alleges the duty to [332 Ga.App. 288] properly identify and enter the serial number of a weapon into the NCIC database was " simple, absolute and, definite, arose under conditions admitted or proved to exist, and required merely the execution of a specific duty," and that Gregory negligently performed that duty. Thomas sought damages for alleged physical, emotional, and mental injuries arising from Gregory's conduct, as well as expenses incurred in connection with the defense of the criminal proceedings against him,[4] which were proximately caused by Gregory's " failure to exercise ordinary care in the performance of [his] ministerial duty."

In his answer, Gregory admitted mistakenly entering the model number as a serial number, but denied liability pursuant to the doctrine of official immunity and simultaneously filed a motion to dismiss for failure to state a claim on December 6, 2013.[5] In its January 31, 2014 order, the trial court recited that Gregory had filed a " Motion for Summary Judgment," and after finding that Thomas did not allege any policy that specifically requires a police officer to accurately transcribe a serial number, granted Gregory's " Motion for Summary Judgment." On March 3, 2014, Thomas filed a notice of appeal from the trial court's order granting Gregory's motion for summary judgment. Then, on March 10, 2014, the trial court entered an amended order, stating that its March 3, 2014 order should have referenced a motion to dismiss, not a motion for summary judgment.

1. We first address Thomas's contention that the trial court lacked jurisdiction to amend its March 3, 2014 order after he filed a notice of appeal. In its order, the trial court relied on OCGA § 9-11-60 (g) to correct a " clerical mistake." [6] However, our Supreme Court has explained that

not even that option is available since the filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, ...

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