978-1285770178 Case Printout Case CPC-08-06

691 S.E.2d 575

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302 Ga.App. 521, 691 S.E.2d 575, 10 FCDR 585

(Cite as: 302 Ga.App. 521, 691 S.E.2d 575)

Ga.App.,2010.

Barrs v. Acree

302 Ga.App. 521, 691 S.E.2d 575, 10 FCDR 585

Court of Appeals of Georgia.

BARRS

v.

ACREE, et al.

No. A10A0230.

Feb. 25, 2010.

Background: Neighboring landowner brought negligence action against alleged landowner, and alleged landown-

alleged employee;

691 S.E.2d 575

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302 Ga.App. 521, 691 S.E.2d 575, 10 FCDR 585

(Cite as: 302 Ga.App. 521, 691 S.E.2d 575)

308 Principal and Agent

308I The Relation

308I(A) Creation and Existence

of burn, had the right to control time and manner of burn, and alleged landowner testified alleged employee worked

independently, and that alleged employee was actually employee of investment company.

[3] Principal and Agent 308 8

Principal and Agent 308 14(1)

308 Principal and Agent

308I The Relation

308I(A) Creation and Existence

308 Principal and Agent

308I The Relation

308I(A) Creation and Existence

308k1 k. Nature of the relation in general. Most Cited Cases

308I The Relation

308I(A) Creation and Existence

308k1 k. Nature of the relation in general. Most Cited Cases

In order to show “actual agency,” the purported principal must assume the right to control the time, manner, and

method of the purported agent’s work.

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302 Ga.App. 521, 691 S.E.2d 575, 10 FCDR 585

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308 Principal and Agent

308I The Relation

308I(A) Creation and Existence

definitively whether alleged employee stated he was conducting burn for alleged landowner, or investment compa-

ny.

[7] Principal and Agent 308 23(5)

Evidence that alleged landowner communicated with neighboring landowner after fire, indicating alleged landowner

wanted to make neighboring landowner whole, and that alleged landowner failed to identify actual landowner until

negligence action was brought by neighboring landowner, was insufficient to support neighboring landowner’s claim

of agency by ratification, even though a presumption of ratification may arise from mere silence or acquiescence.

308k14(2) k. Conduct of parties in general. Most Cited Cases

A party may express regret for the conduct of another and offer to pay for any resulting damages without ratifying

that person’s acts such that an agency relationship is created.

[9] Parties 287 52

alleged landowner as defendant in neighboring landowner’s negligence action; neighboring landowner was aware of

actual landowner, and its potential liability for neighboring landowner’s damages, for almost five years before seek–

ing to add actual landowner as a party. West’s Ga.Code Ann. § 9-11–15(c).

[10] Parties 287 50

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302 Ga.App. 521, 691 S.E.2d 575, 10 FCDR 585

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287IV New Parties and Change of Parties

287k49 Bringing in New Parties

287k50 k. In general. Most Cited Cases

In determining whether to allow an amendment to add a party, the trial court may consider whether the new party

will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and

serve the new party previously.

[11] Appeal and Error 30 949

Parties 287 51(2)

287 Parties

287IV New Parties and Change of Parties

287k49 Bringing in New Parties

Cowart & Perry, Markie E. Perry II, Daniel L. Studstill, Valdosta, for appellees.

MIKELL, Judge.

Earl Barrs brought this negligence action against Russell Acree and Acree’s brother–in-law, Wesley Hall,FN1 for

FN1. Hall died in 2006.

To prevail at summary judgment …, the moving party must demonstrate that there is no genuine issue of material

fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as

a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and oth-

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302 Ga.App. 521, 691 S.E.2d 575, 10 FCDR 585

(Cite as: 302 Ga.App. 521, 691 S.E.2d 575)

er evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential

plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immateri-

al…. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must

point to specific evidence giving rise to a triable issue.FN2

FN2. (Citations omitted; emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474

(1991).

Russell Acree. When asked during his deposition who Hall said he was burning land for, Tawzer testified that, “[h]e

could have said Russell [or] Dr. Acree Investments, but I’ve known Dr. Acree from the past, and I just put Dr.

Acree.” Several hours later, at approximately 10:42 a.m., Hall called Tawzer to advise that the fire had gotten out of

control. When Tawzer arrived on the scene ten minutes later, he noticed that Hall had been burning brush piles and

that the fire was heading toward Barrs’s property because Hall had not cut proper fire breaks. Tawzer used his tractor

Approximately two hours after he had secured the scene and left, Tawzer received a call from the pilot of the Forest–

ry Commission’s airplane, reporting that a fire had started on Barrs’s property, adjacent to the Acree property.

Tawzer again reported to the scene, and he and several other units were able to bring the fire under control by that

evening. According to Tawzer, 78.2 acres of woodland “burned on Barrs’s property and [16.2] acres burned on

McDevitt Farms’s property.” According to Tawzer, the fire was caused by wind getting in “Hall’s burn” and causing

ployee of the company. As part of his duties for Acree Investments, Hall prepared the company’s land for planting

pine trees. According to Russell Acree, his children would determine which lands would be planted; Acree would

then pass along that information to Hall on behalf of Acree Investments; and then Hall would prepare the land. Hall

worked independently and Acree did not know that he was planning to request a burn permit on August 8, 2002.

According to Acree, Hall had carried out many burns on the company’s land.

[1] 1. Barrs contends that the trial court erred in granting Acree‘s motion for summary judgment because there re-

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main genuine issues of material fact as to whether Hall’s conduct should be ascribed to Acree under OCGA § 51-2-

1. We do not agree.

Although one may be liable for the acts of his employees or agents under OCGA § 51-2-2, to impose liability un-

For the negligence of one person to be properly imputable to another, the one to whom it is imputed must stand in

such a relation or privity to the negligent person as to create the relation of principal and agent. OCGA § 51-2-

1(a).FN4

FN4. (Punctuation omitted.) Gaskins v. Gaona, 209 Ga.App. 322, 323(2), 433 S.E.2d 408 (1993).

gest anyone else‘s responsibility or involvement”; and (4) Acree waited until after Barrs filed suit to identify Acree

Investments as the proper party.

[2][3][4][5] “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes

another to act for him or subsequently ratifies the acts of another in his behalf.” FN5 “Agency is the relationship

the time of the fire, had the right to control the time and manner of the burn. Quite the contrary, Acree specifically

testified that Hall worked independently; that he did not know Hall was planning to request a burn permit on August

8, 2002; and that it was “left [to Hall] to decide when he was going to do things and how he was going to do

[them].” While Acree, on behalf of Acree Investments, told Hall which lands to “site prep,” Acree never instructed

Hall on how to burn the property or cut fire breaks.FN9

spondeat superior”) (citations omitted).

FN9. See, e.g., Gaskins, supra (reversing denial of summary judgment to defendant in negligence action

where there was no evidence he employed plaintiff, authorized him to act in his behalf, or had any right to

control his activities).

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when securing the burn permit, the record is devoid of evidence to support this assertion. Tawzer merely assumed

that the burn permit was for Acree and could not say definitively whether Hall stated that he was conducting the

burn for Russell Acree or Acree Investments. Neither can an agency relationship be implied from the fact that Rus-

sell Acree previously employed Hall at his private farm. Barrs cites no authority, and our research reveals none,

holding that an implied agency relationship can be established by proof of a past employment relationship between

mere silence or acquiescence,FN11 under the circumstances here, we fail to see how Acree’s delay in identifying

Acree Investments as Hall’s employer and/or the proper defendant is evidence of an agency relationship by ratifica-

tion.

FN10. Ellis v. Fuller, 282 Ga.App. 307, 311(2), 638 S.E.2d 433 (2006), citing Basinger v. Huff, 98 Ga.App.

288, 105 S.E.2d 362 (1958).

later, on June 28, 2004, Acree served Barrs with an answer to Barrs’s first interrogatories, stating that he was not a

proper party to the action, did not own the adjacent land, and was not involved in the fire incident. Acree answered

that “Acree Investments, LLC,” which owned the property, was the proper party defendant and that service would

be acknowledged by Acree Investment‘s attorney. Five years later, and three years after the statute of limitation

ran,FN12 Barrs filed a motion to substitute “Acree Investments, Ltd.,” as a party defendant, for Acree.

defendant arose out of the same facts and circumstances as the original complaint; (2) the new defendant had suffi-

cient notice of the institution of the suit; and (3) the new defendant knew or should have known that, but for a mis-

take concerning his identity as a proper party defendant, the action would have been brought against him.FN14 Addi-

tionally, in determining whether to allow an amendment to add a party, the trial court may consider “whether the

new [party] will be prejudiced thereby and whether the movant has some excuse or justification for having failed to

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[11] In this case, Barrs was aware of Acree Investments‘s existence and its potential liability for almost five years.

At the hearing on the motion for summary judgment, counsel for Barrs blamed substitutions of counsel for the de-

layed filing as well as Acree‘s confusing and misleading interrogatory responses; counsel argued that although Acree

consistently answered that he was not the proper party, he never divulged the proper party, and when he did, the

designation was incorrect, Acree Investments, LLC, instead of Acree Investments, Ltd.FN16 Counsel further attempt-

ed to justify the delayed filing by pointing out evidence in the record of letters Acree wrote to Barrs on his personal

stationery, denying any liability, but offering to reimburse Barrs for his losses. Obviously, the trial court discounted

these excuses, finding instead that Barrs was aware of Acree Investments’s existence and potential claims against it,

as early as June 28, 2004. “The determination of whether a party should be added to a lawsuit lies within the discre-

tion of the trial court, and that determination will not be disturbed on appeal absent a showing of abuse.” FN17 Given

FN17. (Punctuation and footnote omitted.) Ellison, supra.

FN18. See, e.g., Ellison, supra (denial of motion to add three of four potential defendants affirmed where

the plaintiff was aware of the parties and the potential claims against them for at least seventeen months);

Maitlen v. Derst, 178 Ga.App. 305, 307, 342 S.E.2d 777 (1986) (denial of motion to amend complaint and

add party plaintiff affirmed where suit had been pending and active for over seven years and the potential

ly, that the trial court’s grant of summary judgment should be reversed because Acree was responsible for Hall’s per

se violations of Georgia’s laws governing arson and prescribed burns.

Judgment affirmed.