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Docket Number

No. S09A1102.

Attorney(S)

Maurice L. King, Jr., for appellant. Gardner, Willis, Sweat Goldsmith, Donald A. Sweat, Kimberly A. Reid, for appellees.

Judges

Robert Benham

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Smart Summary

Case Summary: Goddard v. City of Albany et al., No. S09A1102 (Ga. Oct. 19, 2009)

Factual and Procedural Background

Appellant Mattie Goddard was terminated in February 2006 by appellee City Manager Alfred D. Lott from her position as director of Albany's civic center because Lott was dissatisfied with her performance. Before finalizing the termination, Lott held a meeting at which Goddard, represented by counsel, presented evidence and witnesses; Lott declined to change his decision. Goddard filed a "petition for writ of certiorari" in superior court under OCGA § 5-4-1, asserting the meeting was a pre-termination quasi-judicial hearing; her pleading also asserted multiple state-law causes of action. She amended the petition several times and sought mandamus relief in one amendment. The superior court dismissed the certiorari petition for lack of subject matter jurisdiction, denied mandamus relief, and granted summary judgment to appellees on the state-law claims. Goddard appealed. The Supreme Court of Georgia affirmed.

Legal Issues Presented

Whether the trial court erred in considering evidence not presented at the pre-termination meeting when determining whether it had subject matter jurisdiction over a petition for writ of certiorari.
Whether the City Manager's termination of a department head (appellant) constituted a quasi-judicial action subject to certiorari review under OCGA § 5-4-1, i.e., whether appellant had a statutory right to notice and a pre-termination hearing.
Whether appellees were judicially estopped from denying that appellant had a property interest in her job.
Whether appellant had an employment contract—express or implied—based on personnel policies, customs, or past practice, or alternatively a promissory-estoppel claim based on a promise by Lott.
Whether appellees violated appellant's statutory or constitutional rights by (a) releasing personnel records (Georgia Open Records Act/privacy), (b) denying equal protection with regard to personnel policies, or (c) denying access to the courts (First Amendment).
Whether various tort claims stemming from the termination (invasion of privacy, libel, unlawful interference with employment, emotional distress, negligent retention) were barred by governmental immunity.
Whether the trial court improperly excluded or failed to consider certain affidavits or depositions on summary judgment.

Arguments of the Parties

Appellant's Arguments

The meeting with the city manager was a pre-termination, quasi-judicial hearing entitling her to certiorari review under OCGA § 5-4-1; the trial court wrongly considered evidence not presented at that hearing in assessing jurisdiction.
Appellees were judicially estopped from denying that she had a property interest in her job.
She had an employment contract (express or implied) based on city practices and policies; appellees breached progressive disciplinary policy.
Lott promised she would be given a year to prove herself, supporting promissory estoppel.
Lott violated her privacy by releasing personnel documents; the city denied her equal protection; the city violated her First Amendment right to access the courts.
Her tort claims arising from termination should survive summary judgment.
The trial court improperly treated her affidavits as hearsay and failed to consider depositions that were unsealed after the court's order.

Appellees' Arguments (as reflected in the opinion)

The city charter grants the city manager authority to remove employees employed by him without commission consent and without assigning reasons; appellant, a department head, is an at-will employee not entitled to a statutorily protected pre-termination hearing.
Personnel ordinance limits pre-termination hearing rights to certain positions below department head; department heads' terminations are left to the city manager's discretion.
Appellees did not take inconsistent legal positions that would trigger judicial estoppel.
Personnel policies and practices do not create a definite-term or implied employment contract; appellant showed no actionable reliance for promissory estoppel.
Personnel records are not categorically exempt from the Open Records Act; appellant offered no evidence of disparate treatment for equal protection; her access-to-courts claim is inconsistent with the record.
Governmental immunity barred the tort claims because Lott acted within the scope of his authority and no waiver or malice was shown.
The trial court properly handled affidavits and depositions under applicable evidentiary rules for summary judgment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mid-Georgia Environmental Mgmt. Group v. Meriwether County, 277 Ga. 670 (2004)	Mandamus matters fall within the exclusive jurisdiction of the Supreme Court of Georgia.	Cited to note the jurisdictional rule regarding mandamus petitions.
Laughlin v. City of Atlanta, 265 Ga. App. 61 (2004)	Distinction between quasi-judicial and administrative acts; test whether parties had a right to notice and a hearing with opportunity to present evidence.	Used as the governing test for whether the city manager acted in a quasi-judicial capacity subject to certiorari review.
Allen v. Yost, 281 Ga. 102 (2007)	Standard for a motion to dismiss for failure to state a claim.	Noted that appellant's reliance on Allen was misplaced because that case addresses Rule 12(b)(6) standards, not jurisdictional inquiry here.
City of Macon v. Alltel Communications, Inc., 277 Ga. 823 (2004)	Application of expressio unius est exclusio alterius and expressum facit cessare tacitum.	Applied to infer that because charter/ordinance expressly provided hearing rights for certain employees but not department heads, department heads were excluded.
Hammock v. State, 277 Ga. 612 (2004)	Reinforces the expressio unius maxim in statutory interpretation.	Used alongside City of Macon to support inference that department heads were not intended to have pre-termination hearing rights.
Balmer v. Elan Corp., 278 Ga. 227 (2004)	At-will employment principles; requirement of actionable reliance for promissory estoppel; at-will employees cannot enforce oral promises.	Applied to reject appellant's promissory estoppel claim and to support that appellant was an at-will employee.
New Hampshire v. Maine, 532 U.S. 742 (2001)	Describes judicial estoppel and its purpose to prevent inconsistent positions in litigation.	Cited as the foundational description of judicial estoppel in evaluating appellant's estoppel claim.
Roberts v. State, 278 Ga. 610 (2004)	Discusses judicial estoppel as an equitable, discretionary common-law doctrine in Georgia.	Applied to explain that judicial estoppel is discretionary and was not invoked because appellant failed to show inconsistent positions.
Doss v. City of Savannah, 290 Ga. App. 670 (2008)	Personnel policies insufficient to create an implied definite-term employment contract; governmental immunity principles.	Used to conclude no implied employment contract and to support immunity-based dismissal of tort claims.
Ellison v. DeKalb County, 236 Ga. App. 185 (1999)	Supports that personnel policies do not create an implied contract for a definite term.	Relied on to reject appellant's implied-contract claim.
Burgess v. Decatur Fed. Savings Loan Assn., 178 Ga. App. 787 (1986)	Authority that personnel practices/policies are insufficient to form an implied-term contract under Georgia law.	Applied to conclude appellant's personnel policies did not create an enforceable employment contract.
Fincher v. State of Ga., 231 Ga. App. 49 (1998)	Municipal personnel records are not entitled to a blanket exemption from the Open Records Act.	Used to reject appellant's privacy claim regarding personnel record disclosure.
Hackworth v. Bd. of Ed. for City of Atlanta, 214 Ga. App. 17 (1994)	Similarly supports that personnel records are not categorically exempt from disclosure.	Applied to conclude appellant's privacy claim failed under the Open Records Act.
Dixon v. City of Perry, 262 Ga. 212 (1992)	Equal protection requires demonstrating similarly situated persons were treated differently.	Used to reject appellant's equal protection claim for lack of evidence of disparate treatment.
Weaver v. City of Statesboro, 288 Ga. App. 32 (2007)	Governmental immunity parameters for municipal liability and employee actions within scope of authority.	Relied on to conclude tort claims were barred by immunity absent waiver or malice.
Cox v. U. S. Markets, 278 Ga. App. 287 (2006)	Affidavits on summary judgment must contain admissible evidence; hearsay, opinions, conclusions are inadmissible.	Applied to justify the trial court's instruction that it would disregard hearsay or inadmissible portions of affidavits while denying appellees' motion to strike.
General Motors Corp. v. Walker, 244 Ga. 191 (1978)	Court may review deposition evidence even if originals were sealed later; sealing does not prevent consideration for summary judgment.	Used to reject appellant's claim that sealed depositions prevented the trial court from reviewing them before entry of summary judgment.
Goddard v. Jackson, No. 1:02-CV-158 (M.D. Ga. 2003)	Example where the city took the position that department heads were at-will employees not entitled to pre-termination hearings.	Noted as an example cited by appellant; the Supreme Court observed the case was not part of the appellate record for purposes of judicial estoppel.

Court's Reasoning and Analysis

The Court addressed the issues in sequence, applying statutory interpretation, doctrine, and prior authority strictly as reflected in the record.

Jurisdiction to entertain certiorari review:
The Court explained that to determine whether certiorari review under OCGA § 5-4-1 is available, a court must decide whether the officer whose action is challenged exercised judicial or quasi-judicial powers. Relying on Laughlin, the Court described the quasi-judicial/administrative distinction as whether the parties had a legal right to notice and a hearing with judicial forms of procedure. Because the trial court's inquiry concerned its own jurisdiction rather than the merits of the termination, it was not barred from considering evidence beyond what was presented at the pre-termination meeting.

The Court then performed a legal analysis of the city's charter and personnel ordinance. The charter gave the city manager authority to remove employees without consent and "without assigning any reason." The personnel ordinance explicitly provided pre-termination hearing rights only to certain employees below the rank of department head and reserved disciplinary and termination hearings for the "respective managers." Because appellant was a department head who reported directly to the city manager, and because the governing documents did not enumerate a right to a pre-termination hearing for department heads, the Court applied expressio unius/expressum facit cessare tacitum canons to infer that department heads were excluded from the hearing-right provisions. Consequently, appellant lacked a statutory right to notice and a pre-termination hearing and the city manager was not acting in a quasi-judicial capacity; the trial court correctly dismissed the certiorari petition for lack of subject matter jurisdiction.
Judicial estoppel:
The Court reviewed the doctrine's formulation (quoting New Hampshire v. Maine and Roberts) and held that invocation is discretionary and requires a showing that a party assumed an inconsistent position to the prejudice of an adversary. The Court found appellant failed to show appellees took inconsistent positions in litigation; the exemplar case cited by appellant was not part of the appellate record. Therefore, judicial estoppel was not applied and summary judgment on the related claim was proper.
Contract and promissory estoppel claims:
The Court found no evidence appellant was hired for a definite term; her employment was at-will pursuant to OCGA § 34-7-1. It held that personnel policies and practices were insufficient as a matter of law to create an implied definite-term contract, relying on authorities cited. Regarding promissory estoppel, the Court noted appellant failed to show she took action or forbearance in reasonable reliance on any promise by Lott (per Balmer). Because at-will employment status prevents enforcement of oral promises in these circumstances, the promissory-estoppel claim failed and summary judgment was proper.
Privacy, equal protection, and First Amendment claims:
The Court rejected the privacy claim noting municipal personnel records have no blanket exemption under the Open Records Act. The equal protection claim failed because appellant presented no evidence of similarly situated department heads treated differently. The access-to-courts (First Amendment) claim was contradicted by the record of proceedings and appellate review; thus, summary judgment dismissal was appropriate.
Tort claims and governmental immunity:
The Court held the city is a governmental agency and Lott acted within his charter authority. Appellant failed to show any waiver of immunity or that Lott acted without discretion or with malice. Under the cited authorities, the tort claims were barred by immunity and were properly dismissed on summary judgment.
Evidentiary rulings on summary judgment:
The Court explained the trial court denied appellees' motion to strike appellant's affidavits but stated it would disregard hearsay, opinions, and inadmissible portions, consistent with Cox. The Court also rejected the contention that sealed depositions being unsealed after the order meant the trial court failed to review them, citing General Motors v. Walker. Thus, the Court found no reversible error in the trial court's evidentiary handling.

Holding and Implications

DISPOSITION: The Supreme Court of Georgia affirmed the judgment of the superior court.

Implications:

The superior court correctly dismissed the certiorari petition for lack of subject matter jurisdiction because the city manager's termination of a department head, under the city charter and personnel ordinance, was not a quasi-judicial act giving the employee a statutory right to a pre-termination hearing.
The trial court correctly entered summary judgment for appellees on appellant's state-law claims: no implied employment contract, promissory estoppel failed for lack of reliance, privacy and equal protection claims failed on the record, First Amendment access claim contradicted by proceedings, and tort claims barred by governmental immunity.
There is no indication the Court announced a new legal rule; the decision applies existing statutory interpretation, evidentiary, and immunity precedents to the facts and thus does not establish novel precedent beyond its application to these facts.

Judgment affirmed. All the Justices concur.

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GODDARD v. CITY OF ALBANY et al.

BENHAM, Justice.

This is an appeal concerning appellant Mattie Goddard and her former employer appellee the City of Albany and appellee city manager Alfred D. Lott. In February 2006, Lott terminated appellant from her job as the director of Albany's civic center because he was dissatisfied with her performance. Prior to finalizing the termination, Lott held a meeting allowing appellant to come forward with evidence to challenge her termination. Appellant appeared at the meeting with an attorney and presented evidence, including witnesses. Lott declined to change his decision terminating appellant's employment. Asserting that the meeting with Lott was a pre-termination hearing and quasi-judicial in nature, appellant filed a "petition for writ of certiorari" to the superior court pursuant to OCGA § 5-4-1. In addition to seeking review of her termination, the pleading also set forth several causes of action based on state law. Appellant amended the petition several times and, in one amendment, requested mandamus relief. The trial court dismissed the petition for writ of certiorari for lack of subject matter jurisdiction, denied appellant's request for mandamus relief, and granted summary judgment to appellees regarding appellant's various state law claims. This appeal followed. For reasons set forth below, we affirm the judgment of the trial court.

"[C]ases involving the grant or denial of mandamus are within the exclusive jurisdiction of this Court without regard to the underlying subject matter or the legal issues raised. [Cit.]" Mid-Georgia Environmental Mgmt. Group v. Meriwether County, 277 Ga. 670, 671 (1) ( 594 SE2d 344) (2004).

1. Appellant complains the trial court erred when, in determining whether it had subject matter jurisdiction, it considered evidence that was not presented at her "pre-termination hearing." Appellant further contends the trial court erred when it determined it lacked subject matter jurisdiction to consider the petition for writ of certiorari. Both allegations lack merit. A court which is obliged to determine whether it has subject matter jurisdiction over a petition for writ of certiorari must

decide whether the hearing officer whose order is being reviewed exercised judicial or quasi-judicial powers, or whether the officer merely exercised administrative or legislative functions. If the officer exercised judicial powers, his or her actions are subject to review on certiorari; if, however, the officer exercised legislative, executive, or ministerial powers, any error cannot be corrected by certiorari. . . . The basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken. The test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.

Laughlin v. City of Atlanta, 265 Ga. App. 61, 62-63 ( 592 SE2d 874) (2004). The trial court was tasked with determining whether appellant had the right to a notice and hearing prior to being terminated and such task required the trial court to review the applicable law — the city's charter as well as the city's personnel ordinance — and make a legal determination as to whether such a right existed. See id. at 63 (court looked to ordinance to decide whether benefits determination was a quasi-judicial proceeding subject to OCGA § 5-4-1). Since the trial court was considering its own jurisdiction and was not reviewing the underlying merits of Lott's decision, it was not barred from considering evidence that was not presented at the "pre-termination" hearing.

Appellant's reliance on Allen v. Yost, 281 Ga. 102, 103 ( 636 SE2d 517) (2007) is misplaced because that case sets forth the proper standard for a motion to dismiss for failure to state a claim for which relief may be granted.

We now turn to whether the trial court lacked subject matter jurisdiction which is an issue of law that we review de novo for plain legal error. Laughlin v. City of Atlanta, 265 Ga. App. at 63. Here, the city's charter at Section 4 (d) (2) provides that the city manager has the power to "remove employees employed by him without the consent of the commission and without assigning any reason therefor. . . ." The city's personnel ordinance further provides that only certain employees below the rank of department head have the right to a "pre-termination hearing" and sets forth a procedure to request such a hearing and a procedure to review any decision made in such a hearing. A "[d]epartment head[]," such as appellant, is an at-will employee who "[is] directly accountable to the respective managers[.]" While such an at-will employee would not be entitled to a pre-termination hearing, a manager may choose to grant the employee a pre-termination hearing, as "all disciplinary and termination hearings and actions respecting department heads shall be made by the respective managers." In this case, the trial court found appellant's "respective manager" to be appellee city manager Lott. Neither the city's charter nor the personnel ordinance specifically includes a right to a pre-termination hearing for a department head. In this situation, we must apply the concepts of expressio unius est exclusio alterius (the expression of one thing implies the exclusion of another) and expressum facit cessare tacitum (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded). City of Macon v. Alltel Communications, Inc., 277 Ga. 823, 828 ( 596 SE2d 589) (2004); Hammock v. State, 277 Ga. 612 (3) ( 592 SE2d 415) (2004). Had the city intended department heads, or personnel reporting directly to the city manager, to have the right to pre-termination hearings, its charter and personnel ordinance could have provided for such. Instead, the termination of a department head is left entirely to the discretion of the city manager. Thus, appellant did not have a right to a notice and pre-termination hearing and Lott was not acting in a quasi-judicial capacity as contemplated by OCGA § 5-4-1. The trial court did not err when it dismissed, for lack of subject matter jurisdiction, that portion of appellant's pleading concerning her petition for writ of certiorari.

The personnel ordinance provides in pertinent part:

The supervisor recommending dismissal of an employee shall provide the Department/Division Head with a complete written document outlining the nature of the grounds for dismissal[.] If after reviewing the facts and documentation in the case the Department/Division Head shall determine that just grounds exist for dismissing the employee, the Department or Division Head shall advise the employee, that he/she has a right to a pre-termination hearing before the accountable Manager or his appointed representative. The Department/Division Head shall also advise the employee of the incident upon which the grounds are based. The employee shall sign a statement acknowledging that he/she has been advised of hearing rights, that he/she knows of the right to present evidence and shall indicate whether he/she waives the right to a hearing before the accountable Manager. If the employee elects a hearing, the accountable Manager will notify the employee of the time, place, and date of the pre-termination hearing. All other procedures for the disciplinary process, and for appeals to the respective accountable Manager, and procedures for the conduct of termination hearings, shall be determined and provided by the respective accountable Manager.

Section III (A) (4) (b).

The hierarchy was such that the city manager was the administrative head of the city's government and presided over all employees of the city's departments, except for the board of education, the Trustees of the Carnegie Library, the utilities' commission, and any officers or employees who were appointed by the board of city commissioners. As head of the civic center, appellant reported directly to the city manager.

2. With regard to the trial court's grant of summary judgment on her various state law claims, appellant alleges appellees were judicially estopped from arguing appellant did not have a property interest in her job. We disagree.

The rule known as judicial estoppel was described by the United States Supreme Court in New Hampshire v. Maine, 532 U. S. 742, 749 ( 121 SC 1808, 149 LE2d 968) (2001), thusly: "Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him. [Cit.]" The purpose of judicial estoppel is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment. Because it is intended to prevent improper use of judicial machinery, judicial estoppel is an equitable doctrine invoked by a court at its discretion. It is a common-law doctrine, and there is no indication it is constitutionally mandated.

(Citation and punctuation omitted.) Roberts v. State, 278 Ga. 610, 611-612 ( 604 SE2d 781) (2004). Appellant has failed to show any inconsistent position on the part of appellees. As such, the trial court did not err when it did not invoke the doctrine of judicial estoppel.

For example, in Goddard v. Jackson, No. 1:02-CV-158 (M.D. Ga. 2003), a case which appellant cites and which concerns her husband, the city took the express position that department heads were at-will employees and not entitled to pre-termination hearings. Appellant has also cited several other pending superior court cases in support of her argument that appellees' legal positions have been inconsistent; however, the cases are not part of the appellate record.

3. Appellant contends she had an employment contract based on appellees' past practices, customs, and policies; appellees breached the contract when they did not follow the city's progressive disciplinary policy; and the trial court erred when it granted appellees summary judgment regarding her contract claims. We disagree. Nothing in the record shows appellant was hired by the city for a definite term of employment and, as such, her employment was at-will. See OCGA § 34-7-1; Balmer v. Elan Corp., 278 Ga. 227, 228 ( 599 SE2d 158) (2004). The city's personnel policies and practices are legally insufficient to create an implied contract for a definite term of employment. See Doss v. City of Savannah, 290 Ga. App. 670 (5) ( 660 SE2d 457) (2008); Ellison v. DeKalb County, 236 Ga. App. 185 (1) ( 511 SE2d 284) (1999); Burgess v. Decatur Fed. Savings Loan Assn., 178 Ga. App. 787 ( 345 SE2d 45) (1986). Thus, appellant did not have a direct or implied employment contract.

Alternatively, appellant asserts Lott promised her that she would be given a year to prove herself such that she has a claim for promissory estoppel. "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." OCGA § 13-3-44 (a). Appellant cannot meet this burden because she has not shown any action or forbearance she made in reliance on any purported promise for future employment made by Lott. Balmer v. Elan Corp., 278 Ga. at 230. Further, at-will employees cannot enforce oral promises. Id. at 228-229. The trial court did not err when it denied appellant's promissory estoppel claim.

4. Appellant contends Lott violated her right to privacy when he released her personnel documents pursuant to the Georgia Open Records Act; the city denied her equal protection by treating her differently from other employees with respect to its personnel policies; and the city impinged on her First Amendment rights by effectively denying her access to the courts. These allegations lack merit.

The personnel records of municipal employees are not entitled to any blanket exemption from Georgia's Open Records Act. OCGA § 50-18-70; Fincher v. State of Ga., 231 Ga. App. 49 (2) ( 497 SE2d 632) (1998); Hackworth v. Bd. of Ed. for City of Atlanta, 214 Ga. App. 17 (2) ( 447 SE2d 78) (1994). Thus, appellant's privacy claim fails. Appellant also cannot sustain her equal protection claim because she has not proffered evidence of department heads who were treated differently than she was treated with regard to the city's personnel policies. Dixon v. City of Perry, 262 Ga. 212 (3) ( 416 SE2d 279) (1992). Finally, appellant's First Amendment claim concerning lack of access to the courts is belied by the proceedings below and the instant appeal. The trial court's denial of these claims on summary judgment was not erroneous.

5. In her pleading, appellant set forth numerous tort causes of action related to her termination, including invasion of privacy, libel, unlawful interference with employment, emotional distress, and the negligent retention of Lott. Inasmuch as the city is a government agency and Lott was acting in the scope of his authority as provided in the city's charter, and appellant failed to show any waiver of said immunity and failed to show that Lott acted without discretion or acted with malice or intent to injure, appellant's tort claims against the city and Lott are barred as a matter of law. Doss v. City of Savannah, 290 Ga. App. at 675-676; Weaver v. City of Statesboro, 288 Ga. App. 32 (2) ( 653 SE2d 765) (2007). Therefore, the denial of these claims on summary judgment was valid.

6. Appellant argues the trial court failed to consider certain evidence on summary judgment. She contends the trial court improperly ruled the affidavits she submitted were hearsay and she also contends the trial court failed to consider depositions in the case because they were not unsealed until after the trial court issued its order. These allegations are without merit. The only ruling the trial court made with regard to appellant's affidavits was to deny appellees' motion to strike them. Upon denying the motion to strike, the trial court advised that it would disregard hearsay and other inadmissible evidence. This admonition was in keeping with extant law:

It is well settled that affidavits in support of or in opposition to motions for summary judgment must set forth such facts as would be admissible in evidence. Irrelevant matter should be excluded. Hearsay, opinions, and conclusions in affidavits are inadmissible on summary judgment. And while a statement in an affidavit that it is based upon personal knowledge is generally sufficient to meet the requirement that affidavits be made upon such knowledge, if it appears that any portion of the affidavit was not made upon the affiant's personal knowledge, or if it does not affirmatively appear that it was so made, that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.

Cox v. U. S. Markets, 278 Ga. App. 287, 290 (3) ( 628 SE2d 701) (2006). Also, because the trial court stated in its order that it reviewed the record, we will not hold that the court "failed to review the relevant portions of a deposition simply because the original of the deposition on file in the case remained sealed and was not opened until after the order granting the motion was entered." General Motors Corp. v. Walker, 244 Ga. 191, 193 ( 259 SE2d 449) (1979). Thus, these enumerations of error do not constitute any basis to reverse the trial court's judgment.