OFFICIAL CODE OF GEORGIA ANNOTATED 2013 Supplement IncludingActs ofthe 2013 Regular Session ofthe General Assembly Prepared by The Code Revision Commission The Office ofLegislative Counsel and The Editorial StaffofLexisNexis® Published Under Authority ofthe State of Georgia Volume 6 2007 Edition Title 9. Civil Practice (Chapters 1-10) IncludingAnnotations to the Georgia Reports and the GeorgiaAppeals Reports Place in Pocket of Corresponding Volume of Main Set LexisNexis® Charlottesville, Virginia Copyright © 2008—2013 BY The State of Georgia All rights reserved. ISBN 978-0-327-11074-3 (set) ISBN 978-1-4224-3825-1 5012630 (Pub.41805) THIS SUPPLEMENT CONTAINS Statutes: All laws specifically codified by the General Assembly ofthe State of Georgia through the 2013 Regular Session ofthe General Assembly. Annotations ofJudicial Decisions: Case annotations reflecting decisions posted to LexisNexis® through March 29, 2013. 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Ifyou have questions or suggestions concerning the Official Code of Georgia Annotated, please write or call toll free 1-800-833-9844, fax at 1-518-487-3584, or email us at [email protected]. Di- rect written inquiries to: LexisNexis® Attn: Official Code of Georgia Annotated 701 East Water Street Charlottesville, Virginia 22902-5389 IV TITLE 9 CIVIL PRACTICE VOLUME 6 Chap. 2. Actions Generally, 9-2-1 through 9-2-63. 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. 12. Verdict and Judgment, 9-12-1 through 9-12-138. 14. Habeas Corpus, 9-14-1 through 9-14-53. — 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 ofactionnotcre- ated unless expressly stated. ARTICLE 1 GENERAL PROVISIONS 9-2-1. Definitions. JUDICIAL DECISIONS Cited in Bucklerv. DeKalb County Bd. of Tax Assessors, 288 Ga. App. 332, 654 S.E.2d 184 (2007). 2013 Supp. 1 9-2-2 CIVIL PRACTICE 9-2-5 9-2-2. Actions in personam; actions in rem. JUDICIAL DECISIONS Cited in Spinner v. City ofDallas, 292 Ga. App. 251, 663 S.E.2d 815 (2008). 9-2-4. Pursuit of consistent or inconsistent remedies. JUDICIAL DECISIONS Fullsatisfactionbarsfurtherrecov- § 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 ofthe Georgia Department of had against the officer, the Department Revenuethatacorporateofficerwasliable forfeited anyrightthe Departmenthad 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 ofand refund payment to the Moore, 317 Ga. App. 31, 730 S.E.2d 671 majorityowneroftherestaurantoperated (2012). as a release ofthe officer; under O.C.G.A. 9-2-5. Prosecution of two simultaneous actions for same cause against same party prohibited; election; pendency offor- mer action as defense; exception. JUDICIAL DECISIONS Analysis General Consideration Pendency of FormerAction General Consideration action under O.C.G.A. §§ 9-2-5(a) and — 9-12-40. In both the condemnation action Dismissal with prejudice. While a and the tort action, the company sought a trialcourtcoulddismissaneighbor'sthird monetary award on the ground that the complaint pursuant to O.C.G.A. condemnationrenderedits contracta nul- §§ 9-2-5(a) and 9-2-44(a), the court was lityandthatthecondemnationactionwas not at liberty to do so with prejudice. brought in bad faith. Coastal Water & McLeod v. Clements, 310 Ga. App. 235, Sewerage Co. v. Effingham County Indus. 712 S.E.2d 627 (2011). Dev. Auth., 288 Ga. App. 422, 654 S.E.2d Cited in Adams v. Tricord, LLC, 299 236 (2007). Ga. App. 310, 682 S.E.2d 588 (2009). First suit absolute defense to sec- Pendency ofFormerAction ond suit. Plaintiffs' suit against three corpora- O.C.G.A. § 9-2-5 prohibits plaintiff tions was barred by O.C.G.A. §§ 9-2-5(a) from prosecuting two actions, etc. and 9-2-44(a) as a prior suit involvingthe When a limited liability company same parties and claims had been dis- brought a tort action against a county missedandanappealofthedismissalwas industrial developmentauthorityafterfil- pending. That there were minor differ- ing an exception to a special master's ences between the two complaints and award in a condemnation proceeding, the that plaintiffs added new defendants was trial court properly dismissed the tort immaterial. Sadi Holdings, LLC v. Lib 2013 Supp. 9-2-5 ACTIONS GENERALLY 9-2-5 Props., Ltd, 293 Ga. App. 23, 666 S.E.2d breach offiduciary duties, punitive dam- 446 (2008). ages, attorney fees, and the forced repur- A"renewal suit"filedbyalimitedliabil- chase of the shareholder's shares. Ad- ity company (LLC) and the company's vancedAutomation, 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. Priorpendingwrongfulforeclosure §§ 9-2-5(a) and 9-2-44(a), as the LLC and suit did not require dism—issal ofcon- 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 ofa 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 ofaction as thewrongful 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 ofaction. Land & Dev, Inc. v. Bank ofN. 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," ondactionerroneouslydenied. Ina 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 erroneouslydenied same court that was transferred to an- thefirstdriver's motiontodismiss acoun- othercounty;theclaimsinthetwoactions terclaim asserted by the second driver were similarandthe samefactswerepled 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). giventhefirstdriver'sassurancesthatthe No action "pending" without ser- instantsuitwouldbedismissedinfavorof vice. defending the second driver's claims in Because the Department ofTransporta- the prior pending action, the denial ofthe tion failed to show that service ofprocess first driver's motion to dismiss the second had been effectuated in an alleged prior driver's counterclaim was inconsistent pending personal injury suit filed in withthepurposeofO.C.G.A. § 9-2-5.Jen- Brantley County, based on the same acci- kinsv. Crea, 289 Ga.App. 174, 656 S.E.2d dent adriversued uponinWayne County, 849 (2008). the Brantley County suit was not "pend- Action barred. ing,"as saidtermwas definedin O.C.G.A. Bank sued the bank's customer to re- § 9-2-5(a). Thus, the trial court erred in cover for an overdraft; before filing the dismissing the driver's Wayne County customer's counterclaim, the customer suit. Watsonv. Ga. DOT, 288 Ga. App. 40, sued the bank in another county. As the 653 S.E.2d 763 (2007). customer raised the same claims in the Same defendant and same cause of customer's complaint and counterclaim, action. and as there was a logical relationship Shareholder's action to inspect corpo- between the parties' claims, the custom- rate records brought in Cobb County was er's counterclaim was compulsory; there- notbarredbyaprioractionbroughtbythe fore, the customer's suit against the bank shareholderinFulton Countybecausethe was barred by O.C.G.A. § 9-2-5(a). Steve parties were not identical and the causes A. Martin Agency, Inc. v. PlantersFIRST of action were not the same. The Cobb Corp., 297 Ga. App. 780, 678 S.E.2d 186 County suit sought only access to corpo- (2009). rate records and attorney fees, while the As a bank filed suit against the bank's Fulton County suit sought damages for customer before the latter filed suit 2013 Supp. 9-2-5 CIVIL PRACTICE 9-2-7 against the former, and both suits in- customerrelatedbacktothedateoffiling, volved the same cause ofaction, the cus- which establishedthe date thebank's suit tomer'ssuitwasproperlydismissedunder was commenced. SteveA. MartinAgency, O.C.G.A. § 9-2-5(a). Though the bank did Inc. v. PlantersFIRST Corp., 297 Ga.App. not serve the customer until the custom- 780, 678 S.E.2d 186 (2009). er's suit was filed, the service on the 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 violation ofpublic policy, an implied con- tract will not be found to have existed for Recovery under a quantum meruit — the same reason. JR Construction/Elec- theory. Peanut company was entitled tric, LLC v. Ordner Constr. Co., 294 Ga. topaymentfromacooperativebankunder App. 453, 669 S.E.2d 224 (2008). a quantum meruit theory because the Broker's commission. bank directed the company to receive, Award of quantum meruit recovery in process, and shell peanuts, and the com- favor of a broker in the broker's suit pFaanrym'sCerfefodritts owferNeorvtahlwuaebslteFtloa.t,heACbaAnkv.. aafgtaeirn:s(t1)athbeubyreorkewrapseraffofrirmmeeddasonanaapgpeenatl Easom Peanut Co., 312 Ga. App. 374, 718 and rendered valuable services to the S.E.2d 590 (2011), cert, denied, 2012 Ga. buyerintheformoflocatingcertaingoods LEXIS 315 (Ga. 2012). and components and providing contacts; CitedinEkokotuv. Fed. Express Corp., (2) the services were performed at the No. 10-12433, 2011 U.S.App. LEXIS 1126 request of the buyer; (3) it would have (11th Cir. Jan. 19, 2011). been unjust for the buyer to accept the Implied Promises, Generally services without compensating the bro- ker; (4) the broker had an expectation of Express agreement denounced by compensation at the time the broker ren- lawcannotbemadelegalandbinding dered the services; and (5) no contract of as implied contract, etc. employment existed, as the broker and Norecoverywaspermittedforasubcon- the buyer did not have a meeting of the tractor in quantum meruit under minds astothe essentialterms ofemploy- O.C.G.A. § 9-2-7 as the express subcon- ment. Litsky v. G.I. Apparel, Inc., No. tract violated public policy and a subcon- 05-12351, 2005 U.S. App. LEXIS 22150 tractor's lien under O.C.G.A. (11th Cir. Oct. 12, 2005) (Unpublished). §§ 44-14-361.1 and 44-14-367 could not Implied Promises Between Relatives befiled.Although asubcontractorclaimed — to have been regularly connected to a Services rendered to spouse. Georgia-licensed electrician in order to There was no evidence to support an comply with O.C.G.A. § 43-14-8(f), evi- award of damages in quantum meruit dence indicated that the Georgia-licensed against ahusband in awife's action alleg- electrician simply applied for necessary ingthatthehusband's fatherbreached an project permits and did not inspect the oral agreement to deed a parcel of prop- electricalworkperformedorthatthework erty to the wife and the husband because complied with the applicable codes. Ifan there was no present benefit to the hus- express contract is found to be void as a band since the husband did not own the 2013 Supp. 9-2-7 ACTIONS GENERALLY 9-2-8 property or any interest in the property; vices the center provided to the corpora- therewas noevidencethattherewas ever tion's employee were beneficial or valu- any expectation by either party that the able to the corporation or the insurance wife would be compensated by the hus- company and the centernever specifically band for the wife's contributions to their identified what it was alleging the insur- businesseswhiletheywereamarriedcou- ance company and the corporation re- ple. Wallin v. Wallin, 316 Ga. App. 455, ceived when the center provided medical 729 S.E.2d 567 (2012). services to the corporation's employee. Further, there was nothing in the lan- Application guage of Mississippi's Workers' Compen- Plaintiffdebtor-in-possessionprop- sation Medical Fee Schedule, Miss. Code erly stated a claim for unjust enrich- Ann. § 71-3-15,toindicatethattherateof ment, because the plaintiffalleged that a reimbursement for out-of-state services debtor transferred a benefit to defendant was contingent upon whether a foreign (orthat defendant took abenefitfrom the state's medical fee schedule would apply debtor) without a contract, compensation, in that foreign state, and so, to the extent or consideration, and that defendant, un- theinsurancecompanybenefitedfromthe der equitable principles, ought to return discharge ofa statutory obligation under that benefit to the debtor. MC Asset Re- Mississippi law, the undisputed evidence covery, LLC v. Southern Co., No. showed that it already paid the reason- 1:06-CV-0417-BBM, 2006 U.S. Dist. able value for the burn center's services; LEXIS 97034 (N.D. Ga. Dec. 11, 2006). therefore, there was no evidence in the Failed inve—stments in sporting record demonstrating that the insurance eventparties. Professionalbasketball company or the corporation ever made player was not liable to inexperienced any representation that they would be businessmenwhoinvestedandlostmoney willing to pay anything more than what by hosting sports event-related parties was required ofthem by Georgia or Mis- based on an oral agreementwithtwo men sissippi workers' compensation law. Jo- claimingto actasthe player's agents. The seph M. Still Burn Ctrs., Inc. v. AmFed businessmen's claim for unjust enrich- Nat'l Ins. Co., No. 109-34, 2010 U.S. Dist. ment under O.C.G.A. § 9-2-7 was unsuc- LEXIS 31299 (S.D. Ga. Mar. 31, 2010). cessful because there was no evidence Claim against state age—ncy barred thatmoneywas transferred into the play- by sovereign immunity. Computer er's accounts, andafailedinvestmentwas contractor that had an unsigned copy of not a cognizable basis for reliefin quan- an agreement and an invoice for services tum meruit. J'Carpc, LLC v. Wilkins, 545 rendered failed to show that the contrac- F. Supp. 2d 1330 (N.D. Ga. 2008). tor had a signed agreement with a state Insufficientevidence ofrepresenta- agency for purposes ofthe state's waiver —tiontopaymoreformedical services. ofimmunityunderGa. Const. 1983,Art. I, Insurance company and the corpora- Sec. II, Para. IX(c). The contractor's tion were entitled to summaryjudgment claims for unjust enrichment were also on the burn center's quantum meruit barred by sovereign immunity. Ga. Dep't claim because the burn center failed to ofCmty. Healthv. Data Inquiry, LLC, 313 substantiate how or why the medical ser- Ga. App. 683, 722 S.E.2d 403 (2012). 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) ofthis Code section shall be construed to preventthebreach ofanydutyimposedbylaw frombeingused as the basis for a cause of action under any theory of recovery otherwise 2013 Supp. 9-2-8 CIVIL PRACTICE 9-2-20 recognized by law, including, but not limited to, theories of recovery under the law oftorts or contract or for breach oflegal 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 § 1, notcodifiedbythe GeneralAssembly, became effective July 1, 2010.— provides that: "This Act shall be known CodeCommissionnotes. Pursuant and may be cited as the 'Transparency in toCodeSection28-9-5,in2010,"afterJuly Lawsuits Protecti—onAct.'" 1, 2010," was substituted for "after the Law reviews. For annual survey of effective date ofthis Code section"in sub- lawontrialpractice andprocedure, see62 section (a). — Mercer L. Rev. 339 (2010). Editor's notes. Ga. L. 2010, p. 745, ARTICLE 2 PARTIES 9-2-20. Parties to actions on contracts; action by beneficiary. JUDICIAL DECISIONS Analysis General Consideration Parties toActions, Generally Third Party Beneficiaries General Consideration failure to present a valid assignment in the trial court, the record reflected that Cited in Brenner v. Future Graphics, that issue was squarely before the trial LLC, 258 F.R.D. 561 (N.D. Ga. 2007). court because the assignee directly ad- dressed the debtor's defense under Parties toActions, Generally § 9-11-17 inits motionforsummaryjudg- Assignee as real party in interest. ment, referring to the affidavit to show Trial court erred in granting an as- that it was the assignee. Wirth v. Cach, signee summary judgment in an action LLC, 300 Ga. App. 488, 685 S.E.2d 433 against a debtor to collect the amount (2009). owed on a credit card account agreement Formerhusbandlackedstandingto the debtor allegedly entered into with an assert claims arisi—ng from violations of security deed. Because a former assignor because the assignee failed to husband was never a party to a security show that it was entitled to file suit to deed and had no legal interest in the recover the outstanding debt against the propertyatthetimeabankandalawfirm debtor pursuant to O.C.G.A. § 9-ll-17(a); sent notices ofthe default and the accel- the assignee relied on the affidavit ofits eration, theformerhusbandlackedstand- agent and business records custodian of ing to assert any claims arising from vio- its credit card accounts to show that the lations ofthe security deed; therefore, it assignor transferred to it all rights and was of no consequence even if the bank interests to the debtor's account, but the andlawfirmhadfailedtocomplywiththe affidavit failed to refer to or attach any notice provisions in the security deed. written agreements that could complete Farris v. First Fin. Bank, 313 Ga. App. the chain ofassignmentfromthe assignor 460, 722 S.E.2d 89 (2011). totheassignee, andalthoughtheassignee Corporation la—cked standing to contendedthatthe debtordidnotraiseits pursue damages. Trial court did not 2013 Supp.