City of East Point v. Seagraves

Barnes, Judge,

concurring specially.

Even though I agree with the majority that the trial court’s judgment must be reversed for the reasons stated in Division 2, I write separately because I cannot agree that the issue discussed in Division 1 is properly before this court.

Our Supreme Court recently held:

This Court and the Court of Appeals are courts of review. 1983 Ga. Const., Art. VI, Sec. V, Par. Ill; Art. VI, Sec. VI, Par. II. As appellate courts, we are courts for the correction *856of errors of law made by the trial courts. Mills v. State, 188 Ga. 616, 623 (4 SE2d 453) (1939). In appellate practice, an error of law is “a false or mistaken conception or application of the law. Such a mistaken or false conception or application of the law to the facts of a cause as will furnish ground for a review of the proceedings. . . .” Black’s Law Dictionary (5th ed.). An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § 5-6-40. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. Lee v. State, 265 Ga. 112 (8) (454 SE2d 761) (1995); Irvin v. Askew, 241 Ga. 565 (2) (246 SE2d 682) (1978).
Decided November 4, 1999. David J. Couch, for appellant. Daniel F. Byrne, for appellees.

Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

Because the City’s sole enumeration of error alleges only that “[t]he superior court erred in ruling that the City of East Point must pay the claimed unused sick leave benefits by holding that the City’s 1979 ordinance was precluded by the Georgia Constitution and by not considering the employees’ claims waived,” the City never moved for summary judgment based on the statute of limitation, and, consequently, the trial court never ruled on this issue, we cannot reverse the trial court based upon what we perceive to be a violation of the statute of limitation. Felix v. State, supra. See Boggs v. Madison County, 240 Ga. App. 849 (524 SE2d 553) (1999) (“An appellant cannot travel on one ground below, find the wind blowing in another direction, change tack, and head elsewhere on appeal.”). Accordingly, I cannot concur with reversing the trial court on an issue that was neither enumerated as error nor presented to the trial court for a ruling.