City of Atlanta v. Bennett
322 Ga. App. 726
Ga. Ct. App.2013Background
- Class-action by Atlanta firefighters alleging the 2010 lieutenant promotional exam was tainted by cheating and seeking injunctive relief and OCGA § 13-6-11 attorney fees.
- Evidence at trial included statistical anomalies (five of eight top scorers from same study group), connections between that group and high-ranking department officials, differential performance between written and oral portions, and alleged access to exam materials maintained electronically by a department official.
- Exam development/security shifted in 2010 from HR to Booth Research Group (outsourced), raising disputes about test-bank handling and electronic access.
- After appellees rested, the City attempted to call Booth Research Group’s owner (Dr. Walter Booth) to testify about the company’s test development/security practices; the trial court excluded his testimony as an undisclosed expert in violation of scheduling orders.
- The jury returned a verdict for the appellees; the trial court entered judgment and an injunction. On appeal the City argued (inter alia) that excluding Booth was error and that ante-litem notice barred § 13-6-11 fees.
- The Court of Appeals reversed and remanded for a new trial, holding the exclusion of Booth’s testimony was an abuse of discretion; it also held ante-litem notice was not required for § 13-6-11 fees and declined to reach other sufficiency issues because of the new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Booth testimony | Booth was an undisclosed expert; exclusion appropriate for discovery violations | Booth was a fact witness about his company’s ordinary test-development/security practices, not an expert | Reversed: Booth was a factual witness; excluding his testimony as an undisclosed expert was an abuse of discretion and warranted new trial |
| OCGA § 13-6-11 fees — ante-litem notice | City: ante-litem notice under OCGA § 36-33-5 required, so fees barred | Appellees: ante-litem statute applies only to personal-injury/property-damage claims; fees claim not subject to notice | Affirmed: ante-litem notice not required for § 13-6-11 fees; trial court did not err denying summary judgment on this ground |
| Sufficiency of evidence for cheating/verdict | Appellees: evidence (statistics, connections, format changes) supports jury finding of tainted exam | City: evidence insufficient; exclusion of Booth tainted fairness; directed verdict should have been granted | Not decided on merits — court remanded for new trial because exclusion of Booth necessitated retrial |
| Injunction support | Appellees: equitable relief warranted given tainted exam | City: injunction not supported by evidence | Not decided on merits — remanded for retrial; court declined to address due to reversal on evidentiary ground |
Key Cases Cited
- Hart v. Northside Hosp., 291 Ga. App. 208 (trial court abused discretion excluding experts where remedy should be continuance or mistrial)
- Ga. Bldg. Servs., Inc. v. Perry, 193 Ga. App. 288 (1989) (exclusion of material testimony based on misapprehension of witness status is reversible error)
- City of Statesboro v. Dabbs, 289 Ga. 669 (ante-litem notice statute limited to injury to person or property claims)
- Greater Atlanta Homebuilders Ass’n v. City of McDonough, 322 Ga. App. 627 (2013) (interpreting scope of ante-litem notice and related precedent)