Georgia Code, Volume 06, 2015 Supplement

2015·14.5 MB·English

by  State of Georgia

CODE OF GEORGIA
OFFICIAL
ANNOTATED
Supplement
2015
Including Acts of the 2015 Regular Session of the General Assembly
Prepared by
The Code Revision Commission
The Office of Legislative Counsel
and
The Editorial Staff of LexisNexis®
Published Under Authority of the State of Georgia
Volume
6
2007 Edition
Title 9. Civil Practice (Chapters 1-10)
Including Annotations to the Georgia Reports
and the Georgia Appeals Reports
Place in Pocket of Corresponding Volume of
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—
©
Copyright 2008 2015
BY
The State of Georgia
All rights reserved.
ISBN 978-0-327-11074-3 (set)
ISBN 978-1-4224-3825-1
5012632
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly of the State of
Georgia through the 2015 Regular Session of the General Assembly.
Annotations of Judicial Decisions:
Case annotations reflecting decisions posted to LexisNexis® through
April 2015. These annotations will appear in the following traditional
3,
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ern Reporter; Supreme Court Reporter; Federal Reporter; Federal
Supplement; Federal Rules Decisions; Lawyers’ Edition; United States
Reports; and Bankruptcy Reporter.
Annotations of Attorney General Opinions:
Constructions of the Official Code of Georgia Annotated, prior Codes
of Georgia, Georgia Laws, the Constitution of Georgia, and the Consti-
tution of the United States by the Attorney General of the State of
Georgia posted to LexisNexis® through April 2015.
3,
Other Annotations:
References
to:
Emory Bankruptcy Developments Journal.
Emory Law
International Review.
Emory Law
Journal.
Georgia Journal of International and Comparative Law.
Law
Georgia Review.
Law
Georgia State University Review.
John Marshall Law Review.
Mercer Law Review.
Georgia State Bar Journal.
Georgia Journal of Intellectual Property Law.
American Jurisprudence, Second Edition.
American Jurisprudence, Pleading and Practice.
American Jurisprudence, Proof of Facts.
American Jurisprudence, Trials.
Corpus Juris Secundum.
Uniform Laws Annotated.
American Law Reports, First through Sixth Series.
American Law Reports, Federal.
Tables:
In Volume 41, a Table Eleven-A comparing provisions of the 1976
Constitution of Georgia to the 1983 Constitution of Georgia and a Table
Eleven-B comparing provisions of the 1983 Constitution of Georgia to
the 1976 Constitution of Georgia.
An updated version of Table Fifteen which reflects legislation
through the 2015 Regular Session of the General Assembly.
Indices:
A
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ment pamphlets and in the bound volumes of the Code.
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IV
TITLE
9
PRACTICE
CIVIL
VOLUME
6
Chap.
2 Actions Generally, 9-2-1 through 9-2-63.
.
3. Limitations of Actions, 9-3-1 through 9-3-115.
4. Declaratory Judgments, 9-4-1 through 9-4-10.
6 Extraordinary Writs, 9-6-1 through 9-6-66.
.
9. Arbitration, 9-9-1 through 9-9-133.
10 Civil Practice and Procedure Generally, 9-10-1 through
.
9-10-204.
VOLUME
7
11 Civil Practice Act, 9-11-1 through 9-11-133.
.
VOLUME
7A
12 Verdict and Judgment, 9-12-1 through 9-12-138.
.
14. Habeas Corpus, 9-14-1 through 9-14-53.
15. Court and Litigation Costs, 9-15-1 through 9-15-15.
16. Uniform Civil Forfeiture Procedure Act, 9-16-1 through
9-16-22.
—
Law reviews. For article, “The Fed- Realism as a Jurisprudence of Law Re-
eral Rules of Civil Procedure and Legal form,” see 44 Ga. L. Rev. 433 (2010).
CHAPTER
2
ACTIONS GENERALLY
Article 1
General Provisions
Sec.
9-2-8. Private rights of action not cre-
ated unless expressly stated.
2015 Supp. 1
T.9, C.2, A.1 CIVIL PRACTICE 9-2-5
ARTICLE
1
GENERAL PROVISIONS
9-2-1. Definitions.
JUDICIAL DECISIONS
Cited in Buckler v. DeKalb County Bd.
of Tax Assessors, 288 Ga. App. 332, 654
S.E.2d 184 (2007).
9-2-2. Actions in personam; actions in rem.
JUDICIAL DECISIONS
Cited in Spinner v. City of Dallas, 292
Ga. App. 251, 663 S.E.2d 815 (2008).
9-2-4. Pursuit of consistent or inconsistent remedies.
JUDICIAL DECISIONS
Full satisfaction bars further recov- 13-1-13, by voluntarily paying the
§
ery. owner a settlement amount with full
Superior court did not err in reversing awareness of any potential joint claim it
the decision of the Georgia Department of had against the officer, the Department
Revenue that a corporate officer was liable forfeited any right the Department had to
for a restaurant’s sales and use taxes recoup from the officer the payment made
pursuant to O.C.G.A. § 48-2-52 because to the owner. Ga. Dep’t of Revenue v.
the release of and refund payment to the Moore, 317 Ga. App. 31, 730 S.E.2d 671
majority owner ofthe restaurant operated
(2012).
as a release of the officer; under O.C.G.A.
9-2-5. Prosecution of two simultaneous actions for same cause
against same party prohibited; election; pendency of for-
mer
action as defense; exception.
JUDICIAL DECISIONS
Analysis
General Consideration
Pendency of Former Action
General Consideration Cited in Adams v. Tricord, LLC, 299
—
Ga. App. 310, 682 S.E.2d 588 (2009).
Dismissal with prejudice. While a
trial court could dismiss a neighbor’s third Pendency of Former Action
complaint pursuant to O.C.G.A.
§§ 9-2-5(a) and 9-2-44(a), the court was O.C.G.A. § 9-2-5 prohibits plaintiff
not at liberty to do so with prejudice. from prosecuting two actions, etc.
McLeod v. Clements, 310 Ga. App. 235, When a limited liability company
712 S.E.2d 627 (2011). brought a tort action against a county
2 2015 Supp.
9-2-5 ACTIONS GENERALLY 9-2-5
industrial development authority after fil- No action “pending” without ser-
ing an exception to a special master’s vice.
award in a condemnation proceeding, the Because the Department of Transporta-
trial court properly dismissed the tort tion failed to show that service of process
action under O.C.G.A. §§ 9-2-5(a) and had been effectuated in an alleged prior
9-12-40. In both the condemnation action pending personal injury suit filed in
and the tort action, the company sought a Brantley County, based on the same acci-
monetary award on the ground that the dent a driver sued upon in Wayne County,
condemnation rendered its contract a nul- the Brantley County suit was not “pend-
lity and that the condemnation action was ing,” as that term was defined in O.C.G.A.
&
brought in bad faith. Coastal Water § 9-2-5(a). Thus, the trial court erred in
Sewerage Co. v. Effingham County Indus. dismissing the driver’s Wayne County
Dev. Auth., 288 Ga. App. 422, 654 S.E.2d suit. Watson v. Ga. DOT, 288 Ga. App. 40,
236 (2007). 653 S.E.2d 763 (2007).
First suit absolute defense to sec- Same defendant and same cause of
ond suit. action.
Plaintiffs’ suit against three corpora- Shareholder’s action to inspect corpo-
tions was barred by O.C.G.A. §§ 9-2-5(a) rate records brought in Cobb County was
and 9-2-44(a) as a prior suit involving the not barred by a prior action brought by the
same parties and claims had been dis- shareholder in Fulton County because the
missed and an appeal ofthe dismissal was parties were not identical and the causes
pending. That there were minor differ- of action were not the same. The Cobb
ences between the two complaints and County suit sought only access to corpo-
that plaintiffs added new defendants was rate records and attorney fees, while the
immaterial. Sadi Holdings, LLC v. Lib Fulton County suit sought damages for
Props., Ltd, 293 Ga. App. 23, 666 S.E.2d breach of fiduciary duties, punitive dam-
446 (2008). ages, attorney fees, and the forced repur-
“Renewal suit” filed by a limited liabil- chase of the shareholder’s shares. Ad-
ity company (LLC) and the company’s vanced Automation, Inc. v. Fitzgerald, 312
manager against three corporations was Ga. App. 406, 718 S.E.2d 607 (2011).
properly dismissed under O.C.G.A. Prior pending wrongful foreclosure
§§ 9-2-5(a) and 9-2-44(a) as the LLC and suit did not require dism—issal of con-
manager’s prior and nearly identical suit demnation proceeding. Prior pend-
against the corporation had been dis- ing wrongful foreclosure action did not
missed and an appeal was pending. How- require the abatement and dismissal of a
ever, the second dismissal should have bank’s application for confirmation under
been without prejudice under O.C.G.A. O.C.G.A. § 44-14-161 because the confir-
9-ll-41(b) as the corporation’s plea in mation proceeding did not involve the
§
abatement did not challenge the merits of same cause of action as the wrongful fore-
that suit. Sadi Holdings, LLC v. Lib closure suit, but was instead a special
Props., Ltd, 293 Ga. App. 23, 666 S.E.2d statutory proceeding and not a complaint
446 (2008). which initiated a civil action or suit. BBC
Dismissal of action. Land & Dev., Inc. v. Bank of N. Ga., 294
Trial court did not err in dismissing an Ga. App. 759, 670 S.E.2d 210 (2008).
officer’s claims against entities pursuant Dismissal of counterclaim in—sec-
to the “prior action pending doctrine,” ond action erroneously denied. In a
O.C.G.A. § 9-2-5(a), because the officer personal injury accident between two
previously filed a similar action in the drivers, the trial court erroneously denied
same court that was transferred to an- the first driver’s motion to dismiss a coun-
other county; the claims in the two actions terclaim asserted by the second driver
were similar and the same facts were pled because the second driver had a prior
in both actions. Odion v. Varon, 312 Ga. pending action against the first driver in
App. 242, 718 S.E.2d 23 (2011), cert, de- another county, and the parties’ status in
nied, No. S12C0399, 2012 Ga. LEXIS 561 both actions was identical. Moreover,
(Ga. 2012). given the first driver’s assurances that the
2015 Supp. 3
9-2-5 CIVIL PRACTICE 9-2-7
Pendency of Former Action (Cont’d) er’s counterclaim was compulsory; there-
fore, the customer’s suit against the bank
instant suit would be dismissed in favor of was barred by O.C.G.A. § 9-2-5(a). Steve
defending the second driver’s claims in A. Martin Agency, Inc. v. PlantersFIRST
the prior pending action, the denial of the Corp., 297 Ga. App. 780, 678 S.E.2d 186
first driver’s motion to dismiss the second (2009).
driver’s counterclaim was inconsistent As a bank filed suit against the bank’s
with the purpose of O.C.G.A. § 9-2-5. Jen- customer before the latter filed suit
kins v. Crea, 289 Ga. App. 174, 656 S.E.2d against the former, and both suits in-
849 (2008). volved the same cause of action, the cus-
Action barred. tomer’s suit was properly dismissed under
Bank sued the bank’s customer to re- O.C.G.A. § 9-2-5(a). Though the bank did
cover for an overdraft; before filing the not serve the customer until the custom-
customer’s counterclaim, the customer er’s suit was filed, the service on the
sued the bank in another county. As the customer related back to the date offiling,
customer raised the same claims in the which established the date the bank’s suit
customer’s complaint and counterclaim, was commenced. Steve A. Martin Agency,
and as there was a logical relationship Inc. v. PlantersFIRST Corp., 297 Ga. App.
between the parties’ claims, the custom- 780, 678 S.E.2d 186 (2009).
9-2-7. Implied promise to pay for services or property.
JUDICIAL DECISIONS
Analysis
General Consideration
Implied Promises, Generally
Implied Promises Between Relatives
Application
General Consideration tractor’s lien under O.C.G.A.
44-14-361.1 and 44-14-367 could not
§§
Recovery under a quantum meruit
— be filed. Although a subcontractor claimed
theory. Peanut company was entitled
to have been regularly connected to a
to payment from a cooperative bank under
Georgia-licensed electrician in order to
a quantum meruit theory because the
comply with O.C.G.A. § 43-14-8(f), evi-
bank directed the company to receive,
dence indicated that the Georgia-licensed
process, and shell peanuts, and the com-
electrician simply applied for necessary
pany’s efforts were valuable to the bank.
project permits and did not inspect the
Farm Credit of Northwest Fla., ACA v. electrical work performed or that the work
Easom Peanut Co., 312 Ga. App. 374, 718
complied with the applicable codes. If an
S.E.2d 590 (2011), cert, denied, 2012 Ga.
express contract is found to be void as a
LEXIS 315 (Ga. 2012).
violation of public policy, an implied con-
Cited in Ekokotu v. Fed. Express Corp., tract will not be found to have existed for
No. 10-12433, 2011 U.S. App. LEXIS 1126
the same reason. JR Construction/Elec-
(11th Cir. Jan. 19, 2011). tric, LLC v. Ordner Constr. Co., 294 Ga.
App. 453, 669 S.E.2d 224 (2008).
Implied Promises, Generally
Performance of services in addition
Express agreement denounced by to those contracted for.
law cannot be made legal and binding Trial court did not err by charging the
as implied contract, etc. jury on quantum meruit because the alle-
No recovery was permitted for a subcon- gations in the contractor’s complaint were
tractor in quantum meruit under sufficient to raise a claim of quantum
O.C.G.A. 9-2-7 as the express subcon- meruit where the contractor alleged that
§
tract violated public policy and a subcon- the contractor entered into a contract to
4 2015 Supp.
9-2-7 ACTIONS GENERALLY 9-2-7
supervise the construction of improve- 729 S.E.2d 567 (2012).
ments to the homeowners’ residence but
that the homeowners ordered several ad- Application
ditional improvements and further exten-
Plaintiff debtor-in-possession prop-
sive renovations to be made to the resi-
erly stated a claim for unjust enrich-
dence; that the homeowners were fully
ment
because the plaintiff alleged that a
aware of any and all changes to the esti-
debtor transferred a benefit to defendant
mates previously provided and that the
(or that defendant took a benefit from the
homeowners approved the changes and
debtor) without a contract, compensation,
agreed to any and all ensuing changes to
or consideration, and that defendant, un-
the originally agreed-upon price; and that
der equitable principles, ought to return
the contractor remained uncompensated MC
that benefit to the debtor. Asset Re-
for the reasonable value of the contrac-
tor’s work. One Bluff Drive, LLC v. K. A. covery, LLC v. Southern Co., No.
1:06-CV-0417-BBM, 2006 U.S. Dist.
P., Inc., 330 Ga. App. 45, 766 S.E.2d 508
LEXIS 97034 (N.D. Ga. Dec. 11, 2006).
(2014).
Failed investments in sporting
Broker’s commission. —
event parties. Professional basketball
Award of quantum meruit recovery in
player was not liable to inexperienced
favor of a broker in the broker’s suit
businessmen who invested and lost money
against a buyer was affirmed on appeal
by hosting sports event-related parties
after: (1) the broker performed as an agent based on an oral agreement with two men
and rendered valuable services to the
claiming to act as the player’s agents. The
buyer in the form oflocating certain goods
businessmen’s claim for unjust enrich-
and components and providing contacts;
ment under O.C.G.A. 9-2-7 was unsuc-
§
(2) the services were performed at the
cessful because there was no evidence
request of the buyer; (3) it would have
that money was transferred into the play-
been unjust for the buyer to accept the
er’s accounts, and a failed investment was
services without compensating the bro-
not a cognizable basis for relief in quan-
ker; (4) the broker had an expectation of tum meruit. J’Carpc, LLC Wilkins, 545
v.
compensation at the time the broker ren-
F. Supp. 2d 1330 (N.D. Ga. 2008).
dered the services; and (5) no contract of
Insufficient evidence of representa-
employment existed as the broker and the
tion to pay more for medical services.
buyer did not have a meeting ofthe minds —
Insurance company and the corpora-
as to the essential terms of employment.
tion were entitled to summary judgment
Litsky v. G.I. Apparel, Inc., No. 05-12351,
on the burn center’s quantum meruit
2005 U.S. App. LEXIS 22150 (11th Cir.
claim because the burn center failed to
Oct. 12, 2005) (Unpublished). substantiate how or why the medical ser-
Implied Promises Between Relatives vices the center provided to the corpora-
— tion’s employee were beneficial or valu-
Services rendered to spouse. able to the corporation or the insurance
There was no evidence to support an company and the center never specifically
award of damages in quantum meruit identified what it was alleging the insur-
against a husband in a wife’s action alleg- ance company and the corporation re-
ing that the husband’s father breached an ceived when the center provided medical
oral agreement to deed a parcel of prop- services to the corporation’s employee.
erty to the wife and the husband because Further, there was nothing in the lan-
there was no present benefit to the hus- guage of Mississippi’s Workers’ Compen-
band since the husband did not own the sation Medical Fee Schedule, Miss. Code
property or any interest in the property; Ann. § 71-3-15, to indicate that the rate of
there was no evidence that there was ever reimbursement for out-of-state services
any expectation by either party that the was contingent upon whether a foreign
wife would be compensated by the hus- state’s medical fee schedule would apply
band for the wife’s contributions to their in that foreign state, and so, to the extent
businesses while they were a married cou- the insurance company benefited from the
ple. Wallin v. Wallin, 316 Ga. App. 455, discharge of a statutory obligation under
2015 Supp. 5
9-2-7 CIVIL PRACTICE 9-2-8
Application (Cont’d) Ga. App. 683, 722 S.E.2d 403 (2012).
Ultra vires contract not enforce-
Mississippi law, the undisputed evidence able under quantum meruit theory of
—
showed that it already paid the reason- recovery against city. Appellate
able value for the burn center’s services; court erred by holding that an environ-
therefore, there was no evidence in the mental engineering company could re-
record demonstrating that the insurance
cover against a city on the company’s
company or the corporation ever made
quantum meruit claim because quantum
any representation that they would be
meruit was not an available remedy
willing to pay anything more than what
against the city since the claim was based
was required of them by Georgia or Mis-
on a municipal contract that was ultra
sissippi workers’ compensation law. Jo-
seph M. Still Bum Ctrs., Inc. v. AmFed vires as the contract was never approved
Nat’l Ins. Co., No. 109-34, 2010 U.S. Dist. by city council. City ofBaldwin v. Woodard
&
LEXIS 31299 (S.D. Ga. Mar. 31, 2010). Curran, Inc., 293 Ga. 19, 743 S.E.2d 381
Claim against state agency barred (2013).
—
by sovereign immunity. Computer Clear that services were requested
—
contractor that had an unsigned copy of or knowingly accepted. Trial court
an agreement and an invoice for services erred by granting summary judgment to
rendered failed to show that the contrac- the defendants on the part owner’s claim
tor had a signed agreement with a state for quantum meruit and unjust enrich-
agency for purposes of the state’s waiver ment because it was clear that the part
ofimmunity under Ga. Const. 1983, Art. I, owner provided services that benefitted
Sec. II, Para. IX(c). The contractor’s the defendants and were either requested
claims for unjust enrichment were also or knowingly accepted. Bedsole v. Action
barred by sovereign immunity. Ga. Dep’t Outdoor Adver. JV, LLC, 325 Ga. App.
of Cmty. Health v. Data Inquiry, LLC, 313 194, 750 S.E.2d 445 (2013).
9-2-8. Private rights of action not created unless expressly
stated.
(a) No private right of action shall arise from any Act enacted after
July 1, 2010, unless such right is expressly provided therein.
(b) Nothing in subsection (a) of this Code section shall be construed
to prevent the breach of any duty imposed by law from being used as the
basis for a cause of action under any theory of recovery otherwise
recognized by law, including, but not limited to, theories of recovery
under the law of torts or contract or for breach of legal or private duties
as set forth in Code Sections 51-1-6 and 51-1-8 or in Title 13. (Code
1981, § 9-2-8, enacted by Ga. L. 2010, p. 745, § 2/SB 138.)
—
Effective date. This Code section not codified by the General Assembly,
§ 1,
became effective July 1, 2010.— provides that: “This Act shall be known
Code Commission notes. Pursuant and may be cited as the ‘Transparency in
to Code Section 28-9-5, in 2010, “after July Lawsuits Protection Act.’”
—
1, 2010,” was substituted for “after the Law reviews. For annual survey of
effective date of this Code section” in sub- law on trial practice and procedure, see 62
section (a). — Mercer L. Rev. 339 (2010).
Editor’s notes. Ga. L. 2010, p. 745,
6 2015 Supp.