text:
    A00A0238.
    ALTA ANESTHESIA ASSOCIATES OF GEORGIA, P.C. v. GIBBONS et al.
    (537 SE2d 388)
   Phipps, Judge.

A jury trial was held on tort and breach of contract claims asserted by Jacquelyn Gibbons, M.D., and her corporation, Southeast Georgia Anesthesiologist, P.C., (collectively hereinafter “Gibbons”) against Alta Anesthesia Associates of Georgia, a professional corporation. Alta appeals awards of compensatory and punitive damages entered against it. Alta contends the trial court erred in denying its motions for directed verdict, in giving certain jury instructions, in allowing the jury to award punitive damages, in failing to limit the amount of the punitive damages award, and in allowing an award of special damages on Gibbons’s breach of contract claim. We do not find that the trial court erred in any of these respects. Therefore, we affirm.

Gibbons worked as an anesthesiologist at Southeast Georgia Regional Medical Center, operated by the Glynn-Brunswick Memorial Hospital Authority. In 1995, the Authority became concerned about lapses in anesthesiology coverage at the hospital and wanted to prepare for the advent of managed care. The Authority decided the anesthesiology needs of the hospital would be met best through an organized group of anesthesiologists. After the Authority notified the hospital’s anesthesiology department of its decision, members of the anesthesiology staff formed Alta and procured a contract to provide anesthesia services to the hospital. Gibbons and two other anesthesiologists on staff opted not to become members of Alta. The contract, which purported to be one for exclusive services, allowed Gibbons and the two other independent anesthesiologists to continue their practices at the hospital even though they were not members of Alta. However, new anesthesiologists would have to be accepted into Alta before they could practice at the hospital.

Shortly before the contract was scheduled to go into effect, Gibbons filed a complaint and a motion for temporary, interlocutory, and permanent injunctions against the implementation of the contract. Her complaint alleged that the Authority and Alta had conspired to restrain trade and interfere with her exercise of medical staff privileges in violation of OCGA § 13-8-2 (a) (2) and had violated the medical staff bylaws by hindering her ability to practice based upon her nonmembership in Alta. Gibbons later added a motion for declaratory judgment asserting that the contract was illegal and void as a general restraint of trade.

Gibbons also asserted that after implementation of the exclusive contract, Alta manipulated scheduling in the anesthesia department so that Alta anesthesiologists were assigned increased percentages of more lucrative surgeries and the operations where no anesthesiologist had been pre-selected and that Alta intimidated surgeons and other staff persons to switch preferences from independent anesthesiologists to Alta.

The Authority and Alta filed motions for summary judgment arguing that Gibbons lacks standing to challenge the contract, that the Authority and Alta were immune from any antitrust liability, and that the Authority has the discretion to enter into an exclusive services contract.

The court reserved ruling on the standing issue and otherwise denied the motions for summary judgment. The court decided to conduct a bifurcated trial. In the first phase, an advisory jury would determine whether Gibbons had suffered any reduction of income as a result of the contract and whether the costs to patients for anesthesia services had increased as a result of the contract. In the second, nonjury phase, each side would be allowed to present legal arguments and expert testimony on whether the contract had anticompetitive effects.

During the jury phase of the trial, the parties reached an agreement designed to end the litigation. Under the agreement, the contract would be amended as follows: (1) Gibbons would receive a proportional share of the cases where no preference for a particular anesthesiologist was expressed; (2) subject to reasonable economic terms, Alta would be required to accept new anesthesiologists into its membership and practice at the hospital if the Authority deemed a need for more anesthesiologists; and (3) Alta would not be able to terminate an anesthesiologist without cause. Alta and Gibbons also agreed to negotiate on terms under which Gibbons would join Alta. The negotiations were unsuccessful, and Gibbons did not join Alta.

Subsequently, a hearing was held on August 21, 1998, to dispose of unresolved matters such as attorney fees. After both sides presented evidence, the court expressed concern that Alta had continued to exclude Gibbons from the anesthesiology schedule even after the amendments to the contract. The court tentatively decided attorney fees and expenses were appropriate against Alta from the settlement date forward but that attorney fees and expenses were not appropriate against the Authority. The court also ruled sua sponte that it would give Gibbons 30 days to amend her complaint to seek money damages against Alta.

Gibbons did amend her claim to seek damages against Alta. And on December 29, 1998, the court entered an order declaring that “the . . . Authority cannot enter into contracts with groups of physicians which allow the physicians to prevent potential competitors from practicing medicine in Defendant’s facility unless they agree to enter into business relationships with those physicians” and that the original contract between the Authority and Alta was “patently anti-competitive.” The court further ruled that Gibbons would be allowed to present damages claims to a jury. It dismissed the Authority from the future litigation.

Each party filed an appeal. The Authority and Alta challenged the declaratory judgment. Alta also challenged an August 21, 1998 ruling allowing Gibbons to amend her complaint to seek damages against Alta. Gibbons challenged the December 29, 1998 order on the basis that it reaffirmed an August 21, 1998 tentative ruling by the court that Gibbons could not receive attorney fees and expenses against the Authority.

In Case Nos. A99A1868 and A99A1869, we reversed the entry of declaratory judgment on the basis of procedural error and upheld the court’s judgment allowing Gibbons to amend her complaint to seek damages against Alta. In Case No. A99A1870, we affirmed the court’s denial of attorney fees and expenses that Gibbons sought against the Authority.

While the appeals from the August 21 and the December 29 rulings of the trial court were pending in this court, the trial court conducted a jury trial on two damages claims asserted by Gibbons against Alta. The first claim related to alleged tortious conduct by Alta before the parties settled on a case assignment system. Gibbons asserted that Alta conspired to restrain trade by preventing her from practicing anesthesiology in Glynn County. The second claim was a breach of contract claim wherein Gibbons asserted that Alta had breached its obligations under the stipulated case assignment system.

The jury returned verdicts for Gibbons on both claims. It awarded her $106,250 on the tort claim, $56,000 on the breach of contract claim, and $875,000 in punitive damages.

1. First, Alta asserts that the trial court erred in denying its motions for directed verdict because the civil conspiracy cause of action failed to state a claim against Alta upon which relief could be granted under Georgia law. Alta moved for directed verdict both at the close of Gibbons’s case and at the close of the evidence. The record shows that Alta did not assert in either instance that Gibbons’s civil conspiracy cause did not present a claim upon which relief could be granted.

“A motion for directed verdict must state the specific grounds on which it is based, and a ground not asserted cannot thereafter be raised on appeal. [Cit.]” Accordingly, we will not consider Alta’s assertion that it was entitled to a directed verdict because Gibbons’s civil conspiracy action failed to state a claim upon which relief could be granted.

2. Next, Alta asserts that the trial court erred in failing to direct a verdict in its favor because Georgia law does not recognize a tort for restraint of trade. The focus of this court’s review is upon substance and not merely nomenclature. When the trial court’s judgment is correct for any reason, we will affirm.

In its final charge to the jury, the trial judge instructed as follows regarding Gibbons’s tort claim.

I will first charge you concerning the claim of the plaintiff’s based upon an alleged conspiracy. A conspiracy is an agreement to do an unlawful thing. Georgia law protects the rights of all citizens (a term which includes individuals as well as corporations) to compete for business and to maximize their incomes, and there is nothing improper about conduct undertaken for that purpose. However, Georgia law prohibits individuals and corporations from taking actions with the intent of depriving competitors of an opportunity to pursue their trade or profession. A conspiracy to deny a person or a corporation the right to pursue a business or profession cannot be established solely by evidence of a reduction in income due to the operation of a competitor or solely by evidence that the owners of a professional corporation referred cases they could not handle themselves to other owners of that corporation. To recover damages for a conspiracy, the plaintiffs must prove by a preponderance of the evidence that the defendant corporation engaged in conduct which was intended not only to further the interest of its owners but also to drive the plaintiff out of business. If you determine from the evidence that the defendant corporation, acting through its owners, participated in a conspiracy to prevent the plaintiffs from practicing anesthesiology in Glynn County, then the plaintiffs can recover damages from the defendant in an amount equal to those losses they incurred prior to the date the case referral procedure was placed into effect. If you determine from the evidence that the defendant corporation was operated for legitimate business purposes, which could include a desire to increase the income of its owners, then the operation of that corporation violated no legal right of the plaintiff, even if its operation had the effect of decreasing her income. ... In order for the plaintiffs to recover on their conspiracy claim, the plaintiffs must prove by a preponderance of the evidence that illegal conduct by the defendant was the proximate cause of a harm to the plaintiffs.

In a pre-charge before opening statements, the trial judge charged similar language and also added, “In order to recover damages for income lost due to the operation of a corporation, a plaintiff must prove that the corporation violated some legal right of the plaintiff.” Alta did not object to either charge.

Georgia law has recognized a tort for malicious injury to the business of another. Here, the court charged on what is essentially the tort of interference with business relations. Such “a claim may be stated by showing a general malicious intention to harm the plaintiff’s business, or to drive the plaintiff out of business.”

“[T]he principle is generally recognized that a person’s business is property in the pursuit of which he is entitled to protection from tortious interferences by a third person who, in interfering therewith, is not acting in the exercise of some right ... to compete for business.” . . . “Every individual has a natural right to pursue a lawful occupation and to conduct his business according to his own plans and policies, where he does not offend the law or unlawfully infringe upon the rights of others.” [Cit.]

There was ample evidence to create at least a jury question on whether Alta committed such a tort. There was evidence that Alta procured business from surgeons who had stated preferences for independent anesthesiologists by refusing to respond to emergency calls to those surgeons’ operations and by threatening those surgeons that they would not provide coverage for them, not even in cases of emergencies, unless they referred all of their surgeries to Alta. There was evidence that in one instance Alta refused to administer an epidural to a woman in labor because Gibbons was the assigned anesthesiologist, although Gibbons was being detained in another lengthy surgery. We find no error in the denial of this motion for directed verdict.

3. In its next claim, Alta asserts that the trial court erred in instructing the jury on civil conspiracy because it failed to state a claim upon which relief could be granted. The record also shows that Alta did not assert objections in the trial court to the court’s instruction on civil conspiracy. Instead, it asserted that it did not believe there was a restraint of trade tort in Georgia.

OCGA § 5-5-24 (a) provides:

Except as otherwise provided in this Code section, in all civil cases, no party may complain of the giving . . . [of] an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

But:

Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.

Given that Alta did not assert a trial objection to the court’s instructions on civil conspiracy, the issue before us is whether the complained-of charge was harmful to Alta as a matter of law. We find that charging on civil conspiracy was not harmful as a matter of law.

Alta correctly asserts that a corporation cannot conspire with itself and that employees of a corporation are considered to be part of the corporate entity. Alta further asserts that Gibbons presented no evidence that the alleged conspiracy included any parties other than Alta or the doctors who worked for it.

Pretermitting whether Gibbons’s evidence was limited in that fashion, a conspiracy between Alta and its doctors or amongst Alta’s doctors was not essential to recovery by Gibbons.

“A conspiracy upon which a civil action for damages may be founded is a combination between two or more persons either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. Where it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage. . . . [Cits.]”

Proof of a conspiracy merely allows the plaintiff to expand the reach of her action to all joint tortfeasors/conspirators.

“ ‘Malicious injury to the business of another will give a right of action to the injured party.’ [Cit.]” And every person or business entity is responsible for torts committed by its servants by its command or in the prosecution and within the scope of its business. To the extent that Gibbons alleged Alta directly or indirectly through its doctors maliciously undertook actions aimed at destroying her practice in Glynn County, she asserted a theory against Alta that was cognizable regardless of the existence of a conspiracy.

Alta asserts that Nalley Northside Chevrolet v. Herring demands reversal. We disagree. In Nalley, the plaintiff sued Nalley Chevrolet on claims of fraud, negligence, breach of contract, and Racketeer Influenced & Corrupt Organizations Act violations. Over objection from Nalley, the court gave a jury instruction on conspiracy. But the plaintiff’s evidence regarding conspiracy had related only to Nalley and one of its employees. Nalley had correctly asserted to the trial court that it should instruct on the law of principal and agency rather than conspiracy. This court reversed the judgment because we could not say that the suggestion of conspiracy in the charge did not affect the jury’s punitive damages award.

Where, as is the case here, the appellant did not object below to an erroneous jury instruction, the standard for reversal is higher. To say that a charge was harmful as a matter of law is to say “that it was blatantly prejudicial or resulted in a gross miscarriage of justice.” Given that the existence of a conspiracy was not essential to liability for Alta or essential to the award of damages against Alta, we cannot say the court’s charge on conspiracy was blatantly prejudicial or resulted in a gross miscarriage of justice. Therefore, we find no reversible error in the court’s charge.

4. In its next claim, Alta asserts that the trial court erred in not directing a verdict it its favor because its conduct was pursuant to a lawful contract between Alta and the Authority. Although the trial court previously had issued a declaratory judgment that the relevant contract between Alta and the Authority was patently anticompetitive and not legal, Alta asserted in its motions for directed verdict that the contract was legal. It asserted that the Authority was privileged to enter such contracts and that there had been no adverse effect upon Gibbons’s personal ability to compete or trade in general.

“A motion for directed verdict shall be granted only ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ [Cit.]” The crux of Alta’s argument appears to be that the contract was not illegal as a general restraint of trade and that, therefore, any actions taken by it in conformity with the contract were also legal. Pretermitting whether the contract was illegal as a general restraint of trade or legal as a partial restraint of trade, Alta’s argument has no merit.

At the Authority’s insistence, the contract specifically provided that Gibbons and the other two nonAlta members of the anesthesiology staff

will continue to be members of the Medical Staff and may function independently as an anesthesiologist [sic] at [the] Hospital. . . . [S]uch persons will be incorporated into the Service schedule as requested by surgeons and others[,] and . . . they will take all appropriate call as required by the Chief of the Department of Anesthesiology.

The Authority insisted on that provision to protect Gibbons’s ability to practice and earn a living at the hospital. Regardless of whether there might be some situation in which a hospital authority could exclude physicians from practice in favor of an exclusive services arrangement with other physicians, this contract was not an exclusive services agreement, was not intended to be one, and was not even understood by Alta to be one. Evidence was presented that Alta threatened surgeons and staff persons that it would not cover even emergency procedures for those surgeons unless those surgeons routinely referred all their operations to Alta. Additional evidence was presented of instances where in fact Alta had refused to respond when called to cover procedures which had initially been assigned to one of the independent anesthesiologists. Such conduct was not authorized by the contract, and there were jury questions as to whether Alta had in fact engaged in this conduct.

The court did not err in refusing to grant a directed verdict on this basis.

5. Alta next asserts that the trial court erred in failing to give the following requested instruction to the jury:

I charge you that not all restraints of trade are unconstitutional and the test in this state is whether the restraint involved is injurious to the public interest. I charge you that the State of Georgia has clearly articulated a state policy authorizing hospital authorities such as the GlynnBrunswick Hospital Authority to enter into contracts such as the contract between the Hospital Authority and Alta in this case. Accordingly, I charge you that, to the extent that the conduct of the Defendants is consistent with the terms of the contract between the Hospital Authority and Alta, or is consistent with the By-laws of the Hospital, such conduct is legal and does not amount to a restraint of trade.

The record shows that Alta submitted a written request to charge, that the appropriateness of the charge was discussed during the charge conference, and that, afterward, the court decided not to give the charge. Alta did not place on the record an objection to the court’s failure to give the charge.

First, we find that the issue was waived by Alta’s failure to voice an objection on this point after the court gave its charge to the jury. And second, we find that the charge was properly denied because at least portions of it were inapt and misleading and not adjusted to the facts. The written instruction listed OCGA § 36-65-1 et seq. and City of Calhoun v. North Ga. Elec. Membership Corp. as its principal supporting authorities. OCGA § 36-65-2 provides only that local governing authorities shall be immune from antitrust liability to the same degree and extent as enjoyed by the State of Georgia. In City of Calhoun, the Supreme Court of Georgia upheld legislation establishing exclusive territories for power companies. But that precedent is irrelevant, because even Alta conceded at trial that the instant contract was not an exclusive services contract. Moreover, the only basis for tort liability authorized by the court’s instructions was Gibbons’s allegations that Alta has intimidated surgeons and other hospital personnel to switch preferences for anesthesiologists to Alta and away from the independent anesthesiologists. Such conduct was not in conformity with the contract.

6. Alta asserts that the trial court erred in failing to grant it a directed verdict for the reasons stated in its earlier appeal to this court — Case No. A99A1869. Alta did not argue to the trial court that it was entitled to directed verdict for those reasons. Instead, it argued individual substantive bases for its motion for directed verdiet. Some of those bases presented issues common to its first appeal to this court. The only one not yet addressed in this opinion is whether Gibbons had standing to bring this action.

Based upon Valley Products Co. v. Landmark, Alta asserts that Gibbons did not have standing to sue because she was not a party to the contract between Alta and the Authority. Alta’s argument is misplaced, however, because the claims that were tried in this case did not involve a challenge to the contract between Alta and the Authority. Gibbons asserted that Alta tortiously caused injury to her business and breached the settlement agreement that it had reached with her. She had standing to raise those claims.

7. Alta claims that the trial court erred in allowing a punitive damages award because Gibbons’s actions did not contain a valid tort claim. In light of our holding in Division 2 of this opinion, we decide this issue against Alta.

8. Alta asserts that the trial court erred in failing to limit the amount of the punitive damages award to $250,000 pursuant to OCGA § 51-12-5.1.

Under OCGA § 51-12-5.1 (b), punitive damages may be awarded only where it is established by clear and convincing evidence that “the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Pursuant to OCGA § 51-12-5.1 (g), punitive damages are limited to a maximum of $250,000 for any tort action, unless the trier of fact finds that “the defendant acted, or failed to act, with the specific intent to cause harm.” [Cit.]

In McDaniel v. Elliot, the Supreme Court of Georgia established a bright-line rule that for all cases tried after May 7, 1998, a party seeking punitive damages must “request both a charge on specific intent to cause harm and a separate finding of specific intent to cause harm by the trier of fact in order to avoid the cap on punitive damages.”

We find that the requirements of McDaniel were met. The jury was specifically instructed that for Gibbons to recover damages on the conspiracy count, she must demonstrate that Alta acted with the specific intent to drive her out of business. Then, on a special verdict form, the jury was asked, “Did Defendant participate in a conspiracy to deprive Plaintiffs of their right to practice anesthesiology?” The jury answered, ‘Yes.” Given the instruction on specific intent, the jury’s response was tantamount to a finding that Alta had acted with specific intent to cause harm to Gibbons. We find no reversible error on this ground.

Decided July 13, 2000

Bouhan, Williams & Levy, Roy E. Paul, Walter C. Hartridge, Troutman Sanders, Robert W. Webb, Jr., James A. Lamberth, David B. Foshee, for appellant.

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, John K. Larkins, Jr., John J. Ossick, Jr., for appellees.

9. In its final claim, Alta asserts that the trial court erred in awarding special damages on Gibbons’s breach of contract claim because Gibbons did not plead special damages with specificity as required by OCGA § 9-11-9 (g). The remedy for failure to plead special damages is to move for a more definite statement of the plaintiff’s claim. Alta did not so move. We find no error in this claim.

Having reviewed Alta’s enumeration of errors and finding no reversible error, we affirm the judgment of the trial court.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

        Glynn-Brunswick Mem. Hosp. Auth. v. Gibbons, 243 Ga. App. 341 (530 SE2d 736) (2000).

       Id.

       (Emphasis in original.) Turpin v. Worley, 206 Ga. App. 341, 346 (6) (425 SE2d 895) (1992).

       See Cain v. Moore, 207 Ga. App. 726, 727 (2) (429 SE2d 135) (1993).

        Stoneridge Properties v. Kuper, 178 Ga. App. 409, 412 (1) (343 SE2d 424) (1986).

        See Brown & Allen v. Jacobs’ Pharmacy Co., 115 Ga. 429, 445-446 (41 SE 553) (1902).

       Adams, Ga. Law of Torts (1996 ed.), § 33-3, p. 576.

        NAACP v. Overstreet, 221 Ga. 16, 21 (1) (a) (142 SE2d 816) (1965), cert. dismissed, 384 U. S. 118 (86 SC 1857, 16 LE2d 409), rehearing denied, 384 U. S. 981 (86 SC 1857, 16 LE2d 692) (1966); accord Williams v. Maloof, 223 Ga. 640, 641-642 (157 SE2d 479) (1967).

       OCGA § 5-5-24 (c).

       See Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 187-188 (4) (450 SE2d 452) (1994), and cits.

        Cook v. Robinson, 216 Ga. 328-329 (1) (116 SE2d 742) (1960).

       Id. at 329 (2).

        NAACP v. Overstreet, supra, 221 Ga. at 21 (1) (a).

       OCGA § 51-2-2.

       Supra, 215 Ga. App. 185.

        Lavender v. State, 234 Ga. 608, 609 (2) (216 SE2d 855) (1975).

       Compare Bloom v. Doe, 214 Ga. App. 90-92 (447 SE2d 72) (1994) (erroneous charge omitted essential element for liability); Foskey v. Foskey, 257 Ga. 736 (363 SE2d 547) (1988) (erroneous charge directly caused jury to include a prohibited matter in its damages award).

        Norfolk Southern Corp. v. Smith, 262 Ga. 80, 83-84 (2) (414 SE2d 485) (1992).

       See OCGA § 13-8-2 (a) (2); Tomlinson v. Humana, Inc., 495 S2d 630 (Ala. 1986) (holding that an exclusive pathology services contract was a partial restraint of trade).

       See Smith v. Curtis, 226 Ga. App. 470 (1) (486 SE2d 699) (1997).

       See Diaz v. State, 239 Ga. App. 795, 796 (2) (522 SE2d 242) (1999).

       233 Ga. 759 (213 SE2d 596) (1975).

        Gibbons, supra, 243 Ga. App. 341.

       877 FSupp. 1087 (W.D. Tenn. 1994).

       See OCGA § 51-12-5.1 (b).

       (Footnote omitted.) McDaniel v. Elliott, 269 Ga. 262, 263-264 (1) (497 SE2d 786) (1998).

       Id.

       Id. at 265 (3).

         Bryant v. Haynie, 216 Ga. App. 430, 432 (454 SE2d 533) (1995).


source: Caselaw Access Project

author: Smith, Presiding Judge. Blackburn, Presiding Judge,

license: Public Domain

text:
    A00A0505.
    STYLES v. THE STATE.
    (537 SE2d 377)
   Smith, Presiding Judge.

We granted this discretionary application to resolve conflicting lines of opinion regarding this court’s jurisdiction over pending appeals before issuance of a remittitur. The Supreme Court of this state has expressly held that a superior court is without authority to alter a judgment while an appeal of that judgment is pending. Chambers v. State, 262 Ga. 200 (415 SE2d 643) (1992). This court has applied that rule even when the pending appeal is dismissed for lack of jurisdiction. We therefore dismiss this appeal and overrule the decisions of Gillis v. Goodgame, 199 Ga. App. 413 (404 SE2d 815) (1991), rev’d on other grounds, 262 Ga. 117 (414 SE2d 197) (1992), and Kent v. Brown, 238 Ga. App. 607 (518 SE2d 737) (1999), holding to the contrary.

On June 30, 1999, the superior court revoked Curtis Alton Styles’s probation. Styles filed a notice of appeal on July 28, 1999, and the direct appeal was docketed as Case No. A99A2476. An order dismissing Case No. A99A2476 for failure to comply with the discretionary appeal procedures was filed on August 13, 1999, but the remittitur was not issued by this court until September 3, 1999; it was filed in the superior court clerk’s office on September 7, 1999.

Under ordinary circumstances, a trial court does not have “jurisdiction to take any action in a case prior to receiving the remittitur from the appellate court.” Chambers, supra. But on August 20 and 24, 1999, before the remittitur issued, the superior court entered orders vacating and reentering the probation revocation order. As of those dates, the direct appeal was still pending and the superior court was without authority to alter the judgment on appeal. The superior court orders of August 20 and 24, 1999, therefore are null and void. Id. This is true even if the first appeal ultimately is dismissed for lack of jurisdiction. Anaya v. Brooks Auto Parts, 208 Ga. App. 491, 493 (1) (430 SE2d 825) (1993); see also Bryan v. Brown Childs Realty Co., 236 Ga. App. 739, 742 (2) (513 SE2d 271) (1999); Morris v. Morris, 226 Ga. App. 799 (2) (487 SE2d 528) (1997); MTW Investment Co. v. Alcovy Properties, 223 Ga. App. 230, 231 (477 SE2d 395) (1996).

A different result would be reached under the holdings of Gillis v. Goodgame, supra at 414 (1), and Kent v. Brown, supra at 613-614 (3). These cases hold that when an appeal is dismissed due to this court’s lack of jurisdiction, the trial court is deemed to have retained jurisdiction during the pendency of the appeal and could properly have proceeded with the case, including altering or amending the judgment or ruling sought to be appealed. The effect of these cases is to remove from this court the responsibility for determining our own jurisdiction. Williams v. Natalie Townhouses &c., 182 Ga. App. 815, 817 (357 SE2d 156) (1987). Rather than abdicate our authority to determine our jurisdiction over pending appeals, we overrule and will no longer follow Gillis or Kent with respect to this issue.

Applications for discretionary appeal must be filed within 30 days of entry of the order complained of. OCGA § 5-6-35 (d). Styles’s application was not filed within 30 days of the entry of the June 30, 1999 order revoking probation, which remains in effect due to the void nature of the order purporting to vacate it. This court lacks jurisdiction to consider an untimely application for discretionary appeal. Rosenstein v. Jenkins, 166 Ga. App. 385 (304 SE2d 740) (1983). This application therefore is dismissed.

Appeal dismissed.

Johnson, C. J., Pope, P. J., Andrews, P. J., Ruffin, Barnes, Miller and Phipps, JJ., concur. Blackburn, P. J, Eldridge, Ellington and Mikell, JJ, concur specially.

Blackburn, Presiding Judge,

concurring specially.

I concur fully with the judgment of the majority and the overruling of Gillis v. Goodgame and Kent v. Brown. I cannot agree, however, with the majority’s analysis of the law concerning the jurisdiction of the trial court to act while a case is on appeal and, therefore, concur in the judgment only.

The statement that “[u]nder ordinary circumstances, a trial court does not have ‘jurisdiction to take any action in a case prior to receiving the remittitur from the appellate court’ ” is misleading, because such loss of jurisdiction is limited to only those proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters. The use of the term “ordinary circumstances” assumes that acts of the trial court during appeal would affect the issue pending on appeal and adds nothing to the analysis. While this generalization may or may not be true, it is of no assistance to the Bar in determining when the trial court may or may not act while certain rulings or judgments are on appeal. Providing more specific guidance to the Bar as to the application of the law should assist lawyers in advising their clients and trial judges in making their rulings.

The trial court is free to act while a case is on appeal except under those limited circumstances described herein. Such a limited circumstance is present in the case relied upon by the majority, Chambers v. State There, our Supreme Court held that a trial and conviction of a defendant which take place during the pendency of an appeal of a motion to suppress are null and void. This has to be the case since, in allowing the matter to proceed through the entry of a verdict, the trial court necessarily had to take some action regarding the evidence which was the subject of the motion to suppress which was on appeal.

See also Griffin v. State, where our Supreme Court quashed a murder indictment in Thomas County, where an appeal was pending from the denial of a double jeopardy claim upon the defendant’s reindictment in McIntosh County, following a mistrial of the first indictment based upon the same incident. Griffin, supra, also involved action on the very issue that was the subject of a pending appeal, and there was therefore no jurisdiction in the trial court under the facts of that case.

It is the law that a trial court may not alter a judgment or order while an appeal as to the validity of that particular judgment or order is still pending before the appellate court. Neither may a trial court initiate proceedings which, one way or another, require a ruling on the exact matter being appealed. See generally Cohran v. Carlin; Chambers v. State, supra; Griffin v. State, supra.

It is not the case, however, that a trial court’s hands are tied as to other matters not affecting those issues on appeal, during the pendency of such appeal. In Fairburn Banking Co. v. Gafford, our Supreme Court pointed out that

while a trial court is without jurisdiction to modify or enforce a judgment during the period of supersedeas, it has jurisdiction to consider other matters in the case and even to conduct a trial, subject to the peril that a decision which conflicts with that of the appellate court will be made nugatory.

A trial court does retain jurisdiction, pending appeal, of matters which do not require it to take action which affects an order or judgment under the consideration of a higher court. Our appellate courts have established this state of the law, by holding that while an appeal is pending, a trial court retains jurisdiction to: add counterclaims not directly related to the judgment on appeal, Trust Co. Bank v. C & S Trust Co.; rule on motions for protective orders, Craft’s Ocean Court v. Coast House Ltd.; and rule on motions for a continuance of a hearing, id.

The legislature has contributed to this state of the law through the enactment of statutes which provide for jurisdiction in the trial court during the pendency of an appeal. A trial court may perform certain functions even while an appeal is pending in order to prevent a failure or delay of justice. OCGA § 9-11-27 (b) provides:

If an appeal has been taken from a judgment of a trial court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the trial court. ... If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken.

In essence, this statutory provision embodies the maxim that justice should not be delayed and that the procession of a given case to its just disposition should not be impeded by the filing of an appeal except as required by law, which requirements have been previously addressed.

OCGA § 15-11-64 specifically provides that orders of the juvenile court are not superseded by the filing of an appeal. The juvenile court retains discretion to act in connection therewith during the pendency of the appeal and until a ruling by the higher court. See also Rocha v. State. In Rocha, supra, we considered the effect of a pending appeal of the grant of a motion to transfer a juvenile court case to superior court on an indictment issued during such pendency. In Rocha, the defendant was indicted by the grand jury, but not tried, while his appeal of the transfer ruling was pending. The defendant argued that, due to the pending appeal, the superior court had no jurisdiction to enter the indictment.

We rejected the defendant’s argument in that case, based on the statutory mandate that “no [final judgments of a juvenile court judge, which would include a motion to transfer,] shall be superseded except in the discretion of the judge; rather, the judgment or order of the court shall stand until reversed or modified by the reviewing court.” OCGA § 15-11-64. We, therefore, held “even though the transfer order was on appeal at the time [the defendant] was indicted, it remained in effect at that time, and the proceedings which occurred in the superior court, pursuant to the transfer order which had not been superseded, . . . were valid.” Rocha, supra at 50 (1).

Applying the law to the case now before us, I agree that Styles’ appeal must be dismissed. On July 28, 1999, Styles filed an appeal with this Court in which he contended that the trial court inappropriately revoked his probation. While this appeal was pending, the superior court entered orders vacating and reentering the very order which was the subject of the appeal. As stated, a trial court cannot modify a judgment while that particular judgment is on appeal, and thus, the trial court’s orders vacating and reentering its revocation order are void. Chambers, supra. Therefore, Styles’ application for a discretionary appeal is untimely and must be dismissed.

In Gillis, supra, the plaintiff appealed the trial court’s grant of summary judgment to the defendant based on the plaintiff’s failure to file a supporting affidavit. While the appeal of the grant of summary judgment was still pending, the trial court entered a final judgment in favor of the defendant. This Court held that a trial court retains jurisdiction during the pendency of an appeal which is improperly filed with this Court and which must ultimately be dismissed for lack of appellate jurisdiction. A proper analysis in Gillis would have been that, as the trial court’s action could not be taken without also making a judgment regarding the propriety of the summary judgment order, which was under appeal, it had no jurisdiction to act and its order was a nullity.

Decided July 13, 2000.

Jason T. Shwiller, for appellant.

James R. Osborne, District Attorney, Theo M. Sereebutra, Assistant District Attorney, for appellee.

As pointed out by the majority, the result in Gillis espouses an inappropriate abdication of our authority to determine our own jurisdiction. Williams v. Natalie Townhouses &c. Accordingly, Gillis must be overruled. Kent v. Brown, supra, which followed Gillis, must also be overruled.

I concur in the holding of the majority except as outlined above.

I am authorized to state that Judge Eldridge, Judge Ellington and Judge Mikell join in this special concurrence.

        Gillis v. Goodgame, 199 Ga. App. 413 (404 SE2d 815) (1991).

        Kent v. Brown, 238 Ga. App. 607 (518 SE2d 737) (1999).

        Chambers v. State, 262 Ga. 200 (415 SE2d 643) (1992).

        Griffin v. State, 266 Ga. 115 (464 SE2d 371) (1995).

        Cohran v. Carlin, 249 Ga. 510, 512 (291 SE2d 538) (1982).

        Fairburn Banking Co. v. Gafford, 263 Ga. 792, 794 (439 SE2d 482) (1994).

        Trust Co. Bank v. C & S Trust Co., 260 Ga. 124 (390 SE2d 589) (1990).

        Craft’s Ocean Court v. Coast House Ltd., 255 Ga. 336 (338 SE2d 277) (1986).

        Rocha v. State, 234 Ga. App. 48 (506 SE2d 192) (1998), cert. denied, 234 Ga. App. 904.

        Williams v. Natalie Townhouses &c., 182 Ga. App. 815, 817 (357 SE2d 156) (1987).


author: Pope, Presiding Judge. Smith, Presiding Judge,

text:
    A00A0595.
    PUTNAM v. THE STATE.
    (537 SE2d 384)
   Pope, Presiding Judge.

Jon Putnam appeals the denial of his motion for discharge and acquittal based upon double jeopardy grounds. Because we conclude that the trial court had discretion to grant a mistrial under the circumstances, we find that Putnam’s plea in bar was properly denied.

This is the second appearance of this case in this court. In Putnam v. State, 231 Ga. App. 190 (498 SE2d 340) (1998) (physical precedent only), we reversed Putnam’s convictions for child molestation and aggravated child molestation. Putnam’s retrial commenced in November 1998, a jury was selected and sworn, and evidence was presented. A question arose regarding the admissibility of certain evidence objected to by the defense. The trial court declined to rule on the question immediately, taking it under advisement and declaring a recess until the next morning.

The next morning, a news story about the case appeared in the local newspaper. Upon the arrival of counsel at court, they were directed by courtroom bailiffs to meet with the trial judge in chambers. The meeting was not recorded, but the parties agree that the trial judge informed both counsel that it was his opinion that a mistrial was necessary because of the newspaper article. When all parties returned to the courtroom, the district attorney stated for the record what had transpired in chambers. Defense counsel then objected on the record to the mistrial, and the trial court excused the jury after informing them that a mistrial had been declared. That same day, Putnam filed a motion for discharge and acquittal, which was amended the next day. This appeal followed the trial court’s denial of Putnam’s motion.

Putnam contends the trial court erred in denying his motion for discharge and acquittal because no manifest necessity existed for declaring a mistrial. One may not be prosecuted for offenses for which one was tried in a former prosecution if the former prosecution was “[terminated improperly after the jury was impaneled and sworn.” OCGA § 16-1-8 (a) (2). “A trial is improperly terminated if there was no manifest necessity for declaring a mistrial. Manifest necessity exists only under urgent circumstances.” (Citations and punctuation omitted.) Jefferson v. State, 224 Ga. App. 8, 9 (479 SE2d 406) (1996).

In this case, it is undisputed that jeopardy had attached. The only question is whether a “manifest necessity” existed for declaring the mistrial. “[T]he existence of manifest necessity is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments.” (Citation and punctuation omitted.) Stevens v. State, 215 Ga. App. 718, 719 (1) (452 SE2d 176) (1994).

The United States Supreme Court in Arizona v. Washington, 434 U. S. 497 (98 SC 824, 54 LE2d 717) (1978), held that a trial court’s judgment about whether there was manifest necessity to grant a mistrial is entitled to great deference. Although the Georgia statutory protection against double jeopardy found in OCGA § 16-1-8 affords an accused more protection than the minimum standards contained in the United States and Georgia Constitutions, we also have held that, in connection with OCGA § 16-1-8, the trial court’s decision to grant a mistrial and reject lesser alternatives is entitled to great deference. Terrell v. State, 236 Ga. App. 163, 165 (511 SE2d 555) (1999); Cooke v. State, 230 Ga. App. 326, 328-329 (496 SE2d 337) (1998). “Deference to the judge’s sound discretion also precludes a reviewing court from assuming, in the absence of record evidence, that the trial judge deprived a defendant of constitutional rights.” (Citations and punctuation omitted.) Burleson v. State, 259 Ga. 498, 501 (384 SE2d 659) (1989).

“Manifest necessity can exist for reasons deemed compelling by the trial court, especially where the ends of substantial justice cannot be attained without discontinuing the trial.” (Citations and punctuation omitted.) Pleas v. State, 268 Ga. 889, 890 (2) (495 SE2d 4) (1998). “A trial judge has acted within his sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition, even though in a strict, literal sense, the mistrial is not necessary.” (Citations and punctuation omitted.) Cooke, 230 Ga. App. at 329.

Further, it is not dispositive that the trial court made the decision sua sponte. See, e.g., Terrell, 236 Ga. App. at 166. And, “the availability of another alternative does not without more render a mistrial order an abuse of sound discretion.” (Citations and punctuation omitted.) Burleson, 259 Ga. at 501.

Finally, it is true that the defendant has a valuable right to be tried by the original impaneled jury. But that right is not paramount to the state’s equal right to a fair trial.

Both the defendant and the state are entitled to a fair trial designed to end in a just judgment. [Cit.] The trial court has the duty to ensure a fair trial to all parties in a case. The trial court is vested with as much authority to grant a mistrial when an injustice occurs to the state as when it occurs to the defendant. [Cit.]

Terrell, 236 Ga. App. at 166.

The mistrial decision must be based on the surrounding circumstances in their totality. Cooke, 230 Ga. App. at 327. Although the better practice in the circumstances presented here would have been to question the jury about its media exposure, see Deal v. State, 233 Ga. App. 79, 81 (4) (503 SE2d 288) (1998) and cases cited therein, the trial judge was in the best position to determine the possible prejudicial impact of the newspaper article in connection with the setting in which the trial was taking place. Further, no prosecutorial misconduct is involved, “and this is a significant factor for appellate consideration.” Cooke, 230 Ga. App. at 328.

Although the trial judge should also explain on the record that he or she considered and rejected alternative remedies, the fact that the lower court failed to do so here “does not, standing alone, render [his] determination so unwarranted as to preclude the defendant’s retrial on grounds of former jeopardy.” Terrell, 236 Ga. App. at 165. Dotson v. State, 213 Ga. App. 7 (1) (443 SE2d 650) (1994), is distinguishable because there, “[t]he trial court gave appellant no opportunity before declaring mistrial either to object thereto or to present an argument as to the appropriate means of correcting the testimonial error.” Here, Putnam’s counsel had the opportunity to propose alternatives both in chambers and in court when he was invited to comment on the mistrial. There is no record of the in-chambers discussion between the trial judge and counsel. Thus, we do not know whether the court considered alternatives to mistrial. But even if the court failed to consider alternatives, such a failure “is more likely to bar retrial in cases involving prosecutorial abuse” than juror bias. Wilson v. State, 217 Ga. App. 544, 545 (458 SE2d 486) (1995).

Under the totality of the circumstances the trial court did not err in denying the motion for discharge and acquittal.

Judgment affirmed.

Andrews, P. J., Blackburn, P. J., Miller and Ellington, JJ, concur. Smith, P. J., and Ruffin, J., dissent.

Smith, Presiding Judge,

dissenting.

I must respectfully dissent because I conclude that no manifest necessity existed for a mistrial in this case. The trial court granted the mistrial sua sponte, in chambers, off the record, over Putnam’s objection, and without first determining whether the jury had been tainted. Absent such manifest necessity, Putnam’s plea in bar should have been granted.

One may not be prosecuted for offenses for which that person was tried in a former prosecution if the former prosecution was “[terminated improperly after the jury was impaneled and sworn.” OCGA § 16-1-8 (a) (2). “A trial is improperly terminated if there was no manifest necessity for declaring a mistrial. Manifest necessity exists only under urgent circumstances.” (Citations and punctuation omitted.) Jefferson v. State, 224 Ga. App. 8, 9 (479 SE2d 406) (1996).

[T]he existence of manifest necessity is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.

(Citation and punctuation omitted.) Stevens v. State, 215 Ga. App. 718, 719 (1) (452 SE2d 176) (1994). Although a trial court has a broad discretion in granting a mistrial, this power is subject to “stringent limitations.” Dotson v. State, 213 Ga. App. 7, 8 (1) (443 SE2d 650) (1994). Because declaring a mistrial over a defendant’s objection has severe consequences, a trial court must “give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes.” (Citation omitted.) Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994).

“Manifest necessity” may exist even when there are less drastic alternatives, “so long as the record discloses that the trial court considered alternatives before declaring mistrial.” (Citation, punctuation and emphasis omitted.) Dotson, supra.

Here, the record does not disclose this careful consideration. No record was made of the discussion in chambers, and we cannot assume harm. The record made by the prosecutor after the return of counsel and the trial judge to the courtroom shows only that the judge indicated to counsel in chambers that he was assuming that the “information having been published in this morning’s paper would have come to the knowledge of one or more jurors.” The trial court did not poll the jurors or ask the group whether any of them had read the article or even seen the newspaper. Particularly given that defense counsel and the trial court suggest that the jurors were instructed to disregard any media coverage of the trial, we cannot assume that any of the jurors even saw the item.

Even if one or more jurors did see the article, in my view, we cannot assume that it would have precluded a fair trial. The newspaper story, which was placed into evidence, began with a statement that “[a] former Augusta resident unfairly convicted of child molestation two years ago, according to an appeals court, is standing trial again on the charges.” The trial court’s order characterizes this statement, among others, as “highly prejudicial.” But the article states clearly and accurately that this court ruled that “certain testimony and evidence shouldn’t have been given to the jury in his first trial and was unfairly prejudicial.” Moreover, although the article recites that the evidence at the first trial was “not overwhelming,” that statement was clearly attributed to this court, and it was balanced by also reporting our ruling that the victim’s testimony alone was sufficient to support the conviction. Even the trial court acknowledged that the article did not give one side an unfair advantage, reciting that it was “highly prejudicial to both parties.”

The trial court certainly could have determined whether any jurors had seen the newspaper item. If so, the trial court then could have determined whether any jurors had formed an opinion with regard to guilt or innocence based upon the article and finally could have determined whether instructing the jurors to disregard the article would have allowed them to consider fairly the evidence introduced in the present trial. See generally Stevens, supra at 719-720 (1) (no manifest necessity for declaring mistrial because “curative instructions might have been sufficient to undo any possible harm”). The trial court in its order, relying on Abdi v. Georgia, 744 F2d 1500 (11th Cir. 1984), recites that “[d]efense counsel not only failed to express an alternative to a mistrial, but indicated that it was naive to believe that jurors were not exposed, at least indirectly, to the offensive newspaper report.” I do not find Abdi either applicable or persuasive.

Decided July 13, 2000

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

In Abdi the Eleventh Circuit held that the trial court’s speed in reaching a decision that a mistrial was necessary did “not indicate an abrupt or precipitous decision that failed to consider the alternatives seriously enough.” Id. at 1504. But unlike this case, in Abdi the necessity for a mistrial was caused by the egregious conduct of defense counsel in questioning the victim of a rape about her prior sexual conduct, in violation of Georgia’s Rape Shield Law, OCGA § 24-2-3. The record here reveals no misconduct on the part of counsel. In my view, it does not reveal the manifest necessity required for declaring a mistrial over the defendant’s objection. I am persuaded that having failed to explore alternative remedies before declaring a mistrial, the trial court should have granted Putnam’s plea in bar.

I am authorized to state that Judge Ruffin joins in this dissent.

       Although the defense motion and the trial court’s order allude to the trial judge instructing the jurors before excusing them for the recess that they should disregard any media coverage of the trial, no such instruction appears in the record.

        Marchman v. State, 234 Ga. 40 (215 SE2d 467) (1975) (construing former Ga. Code Ann. §§ 26-506; 26-507); State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974) (same); State v. LeMay, 186 Ga. App. 146 (1) (367 SE2d 61) (1988).

       Notwithstanding this suggestion, no such instruction appears in the record.


author: Barnes, Judge. Blackburn, Presiding Judge,

text:
    A00A0653.
    DELSON et al. v. DEPARTMENT OF TRANSPORTATION et al.
    (537 SE2d 381)
   Barnes, Judge.

Natividad Delson, Rex Delson, Maria Delson, Ann Delson Hejmanowski, and Concepcion Delson Guistino (“surviving children”) appeal from the trial court’s grant of partial summary judgment to the Georgia Department of Transportation (“DOT”). Because we find the trial court erred by finding that the surviving children failed to comply with the ante litem notice requirements of OCGA § 50-21-26, we reverse.

The record shows that the surviving children’s parents, Crisanto and Delores Delson (“the deceased”), were killed in an automobile accident on July 21, 1995. On July 2, 1996, the same law firm that later filed a complaint on behalf of the surviving children, as well as the estates of the deceased, sent an ante litem notice that stated, in pertinent part:

This law firm represents the interests of the estates of Crisanto Delson, [and] Delores Delson who died on July 21, 1995. . . . Pursuant to OCGA § 50-21-26, et seq., this letter will serve as notice to the Risk Management Division and the Department of Transportation that the representatives of the aforementioned estates intend to file a lawsuit against the State of Georgia and the Department of Transportation whose conduct is believed to have proximately caused the deaths of Crisanto Delson [and] Delores Delson. . . . Claims which may be alleged include wrongful death, negligence, loss of consortium, as well as others which may become apparent through the discovery process. . . . While it is difficult to value the lives of Crisanto Delson . . . [and] Delores Delson . . . , and the pain and suffering endured by their surviving family, we believe this amount to be substantial.

DOT moved for partial summary judgment on the grounds that this ante litem notice did not notify it that the surviving children would be bringing a claim against it. The trial court agreed and granted partial summary judgment in favor of the DOT.

The ante litem statute at issue, OCGA § 50-21-26, provides in pertinent part:

(a) No person, firm, or corporation having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as follows: ... (3) No action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection; . . . (5) A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.

The surviving children assert they complied with the requirements of this statute, and we agree. Subsection (a) (5) sets out the information which “shall” be included in the notice, and the parties do not dispute that all of the information required by this subsection was included in the letter sent by the surviving children’s attorney. The statute contains no express requirement that all claimants be identified in the notice. The omission of such a requirement makes sense when one considers that the person possessing a cause of action can sometimes change over time.

The Supreme Court’s decision in Williams v. Dept. of Human Resources, 272 Ga. 624 (532 SE2d 401) (2000), is distinguishable because in Williams, no notice of a wrongful death claim was provided to the State. Thus, the plaintiff in that case failed to specify “the nature of the loss suffered” as required by OCGA § 50-21-26 (a) (5) (D). In this case, the State received notice that a wrongful death claim would be asserted. Accordingly, the trial court erred in granting partial summary judgment to the DOT.

Judgment reversed.

Johnson, C. J., Pope, P. J., Eldridge, Phipps and Mikell, JJ, concur. Blackburn, P. J., dissents.

Blackburn, Presiding Judge,

dissenting.

I must respectfully dissent. The record shows that the surviving children of the Delsons did not give any notice of their wrongful death claim as required by the plain language of OCGA § 50-21-26 (a) (the Georgia Tort Claims Act), so I would affirm the grant of partial summary judgment to the Department of Transportation.

The majority’s decision allows the surviving children to proceed with suit based on the notice from the estates, another party. A similar interpretation of the notice provision has been rejected by our Supreme Court.

Applying the dissent’s interpretation, individuals could sue the state based on the notice of other persons about other claims, so long as the claims derived from the same negligent act. . . . That liberal construction would undermine substantially the requirement of notice to the state.

Williams v. Dept. of Human Resources.

In Williams, Paul and Sheila Williams had sent an ante litem notice to the state claiming she had suffered pain, disfigurement and reduced life expectancy and that he had suffered loss of consortium due to a public health nurse’s failure to diagnose Mrs. Williams’ breast cancer. After Mrs. Williams died, Mr. Williams filed a wrongful death action against the state. The trial court’s dismissal of the action was affirmed because Mr. Williams had not strictly complied with OCGA § 50-21-26. He failed to give notice of his wrongful death claim. Id.

The Supreme Court reiterated in Williams, supra, that we should look to the plain meaning of the statutory language to interpret the GTCA and, furthermore, that substantial compliance with the notice provisions of the statute is inadequate. The majority’s analysis here ignores the plain language of the statute which requires that any person who has a claim against the state must give notice of that claim. OCGA § 50-21-26, the ante litem notice provision, provides “(a) No person . . . having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim.” “Person” is defined in the GTCA as “a natural person, corporation, firm, partnership, association, or other such entity.” OCGA § 50-21-22 (4).

In the present case, the persons bringing the wrongful death action are the surviving children of Crisanto and Delores Delson. The record is abundantly clear that none of the surviving children gave written notice to the state of any claim, much less their wrongful death claim, in accordance with OCGA § 50-21-26 (a). Rather, the only notice of claims arising out of the deaths of the Delsons came from the estates of Crisanto Delson and Delores Delson.

It matters not that, as the majority states, the same law firm which later filed suit on behalf of the surviving children sent the notice. The notice makes reference only to the estates:

This law firm represents the interests of the estates of Crisanto Delson [and] Delores Delson. . . . Pursuant to OCGA § 50-21-26, et seq., this letter will serve as notice . . . that the representatives of the aforementioned estates intend to file a lawsuit against the State of Georgia.

The purpose of the notice provision is to “ensure that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.” Williams, supra at 625. Accordingly, it is of the utmost importance that the state know which parties are asserting claims. Here, the estates of the deceased and the surviving children are distinct “persons” asserting separate claims. The estates cannot assert a wrongful death claim; only the surviving children can assert that claim. OCGA § 51-4-2. Since the surviving children failed to give notice to the state of any claim, the trial court’s grant of partial summary judgment to the DOT should be affirmed. OCGA § 50-21-26 (a); Williams, supra; Bd. of Regents &c. of Ga. v. Frost.

Decided July 13, 2000

Weinstock & Scavo, Michael Weinstock, Jeffrey P. Yashinsky, Jan P. Cohen, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Lawson, Davis, Pickren & Seydel, G. Thomas Davis, Paul R. Jordan, Alison H. Price III, Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Henry L. Pruett, Moore, Ingram, Johnson & Steele, William R. Johnson, Jere C. Smith, for appellees.

       For example, the death of a surviving spouse would result in a wrongful death cause of action passing to any surviving children, or if there were no surviving children, to the representative of the original decedent’s estate. See OCGA §§ 51-4-2 (b) (1); 51-4-5 (a).

       The language from Williams that is quoted by the dissent is dicta and does not govern the result of this case.

        Williams v. Dept. of Human Resources, 272 Ga. 624, 626 (532 SE2d 401) (2000).

       Plaintiffs Natividad Delson, Rex Delson, Maria Delson, Ann Delson Hejmanowski and Concepcion Delson Guistino.

        Bd. of Regents &c. of Ga. v. Frost, 233 Ga. App. 692 (2) (505 SE2d 236) (1998).


author: Ruffin, Judge.

text:
    A00A0208.
    DUFFY et al. v. THE LANDINGS ASSOCIATION, INC. et al.
    (536 SE2d 758)
   Ruffin, Judge.

This case concerns the viability of a restrictive covenant requiring that property owners pay a “transfer fee” to a marketing company upon the sale of their residence. The trial court upheld the covenant and granted summary judgment to defendants, The Landings Association, Inc. and The Landings Company. We reverse because the transfer fee covenant was not properly established in accordance with the amendment provisions of the original covenants.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In ruling on a motion for summary judgment, the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the nonmovant. Our review is de novo.

The Landings on Skidaway Island is a 4,251-lot residential subdivision in Chatham County. On August 21, 1972, the subdivision developer, The Branigar Organization, Inc., filed a General Declaration of Covenants and Restrictions to run with the land in the subdivision. There were two provisions concerning procedures for amending the covenants.

First, § 11.1, entitled “Duration,” provided that the covenants had an initial twenty-year term that would be automatically extended for successive ten-year terms

unless an instrument signed by the then owners of two-thirds of the lots and living units has been recorded agreeing to change said covenants and restrictions in whole or in part; provided, however, that no such agreement of change shall be effective unless made and recorded three years in advance of the effective date of such change, and unless written notice of the proposed agreement is sent to every owner at least ninety days in advance of any action taken.

Second, § 11.4, entitled “Modification,” provided that

[b]y recorded supplemental declaration, the Developer may modify any of the provisions of this Declaration or any Supplemental Declaration for the purpose of clarifying any such provisions, provided no such modification shall change the substantive provisions of any such document or materially alter the rights of any owner established by any such document.

On May 10, 1996, Branigar filed a Supplemental Declaration to the General Declaration of Covenants and Restrictions that purported to clarify §§ 11.1 and 11.4 of the original covenants. The Supplemental Declaration amended § 11.1 to address the duration of the covenants only, not the amendment process. The new § 11.1 stated that the covenants would be automatically renewed for successive ten-year periods

unless an instrument signed by the then owners of two-thirds of the lots and living units has been recorded agreeing to terminate said covenants and restrictions in whole or in part; provided, however, that no such agreement of termination shall be effective unless made and recorded at least three years in advance of the effective date of such termination, and unless written notice of the proposed agreement is sent to every owner at least 90 days in advance of its recording.

(Emphasis supplied.) The Supplemental Declaration also amended § 11.4 to add the following language:

Except as otherwise specifically provided above . . . this Declaration may be amended only by an instrument signed by the then owners of at least two-thirds of the lots and living units or in the alternative, an instrument signed by the President and Secretary of [TLA] certifying that the amendment has received the affirmative vote or written consent, or any combination thereof, of the then owners of at least two-thirds of the lots and living units.

The Supplemental Declaration left intact the provision in § 11.4 of the original covenants allowing the developer to modify the covenants for the purpose of clarification.

On December 10, 1997, Branigar recorded a Restated General Declaration of Covenants and Restrictions. The restated covenants implemented the changes to the termination and amendment procedures that were in the Supplemental Declaration and are quoted above. The restated covenants also provided that any amendments approved by two-thirds of the owners would become effective upon recording, unless a later date was specified.

The owners subsequently approved, by a majority greater than two-thirds, a Supplemental Amendment to the restated covenants. This amendment authorized the creation of a marketing company to promote the subdivision on the regional and national level. The amendment also established a transfer fee, payable to the marketing company, of up to one percent of the gross sales price of property in the subdivision. The amendment was recorded on December 30, 1997, and it did not provide for a delayed effective date.

Robert J. Duffy and Mary C. Duffy purchased a residence in the Landings on March 30, 1997. They sold the property on June 25, 1998. On the date of closing, the Duffys filed this action seeking a declaration that the one percent transfer fee was invalid.

Pretermitting whether the transfer fee amendment violated OCGA § 44-5-60 (d) (4), we hold that the amendment did not apply to the Duffys because it was not enacted in conformance with the applicable modification procedures. Because restrictive covenants are simply specialized contracts that run with the land, we begin by looking at the language of the covenants in question. In so doing, we bear in mind that “[s]ince restrictions on private property are generally not favored in Georgia, they will not be enlarged or extended by construction, and any doubt will be construed in favor of the grantee.”

The original covenants established two methods for modifying the covenants: (1) pursuant to § 11.1, two-thirds or more of the owners could vote to change the covenants, but only if the change was recorded three years before its effective date and the owners received notice of the proposed change at least ninety days before “any action taken”; and (2) pursuant to § 11.4, the developer could modify the covenants for the purpose of clarification, but could not substantively alter them or materially alter the rights of the owners under the covenants.

The 1996 Supplemental Declaration to the covenants, which purported to change the procedures for modifying the covenants, did not comply with either of these methods. It did not comply with § 11.1 because it was recorded by the developer, not voted on by the owners; it was not recorded three years in advance of its effective date; and there is no indication that the owners received notice of it ninety days before the developer recorded it. And the Supplemental Declaration did not comply with § 11.4 because, by eliminating the three-year delayed effective date and ninety-day notice provisions pertaining to amendments, it substantively changed the provisions of the covenants and materially altered the rights of the owners thereunder. Therefore, the Supplemental Declaration was ineffective, as was that portion of the restated covenants purporting to implement it. Thus, the modification procedures contained in the original covenants remained operative.

The 1997 amendment establishing the transfer fee, however, did not conform with the modification provisions in the original covenants. Although the transfer fee amendment was approved by the owners of more than two-thirds of the lots in the subdivision, the amendment was not recorded three years before its effective date. Assuming the transfer fee had been enacted consistently with § 11.1 of the original covenants, it would not take effect until 2000 — long after the Duffys sold their property. Thus, the transfer fee did not apply to the Duffys’ sale.

The defendants argue that even if the supplemental declarations and the transfer fee amendment were not adopted properly, the Duffys are nevertheless bound by principles of equity to follow them. Landowners may be bound to uphold legally insufficient covenants under the doctrine of promissory estoppel, which provides that “[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.”

Decided June 30, 2000

Reconsideration denied July 14, 2000

Duffy & Feemster, Dwight T. Feemster, for appellants.

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Thomas J. Mahoney III, Mary K. Hogan, John H. Oldfield, Jr., for appellees.

In Canterbury Forest Assn. v. Collins, a group of landowners signed an agreement extending the term of restrictive covenants that had expired under the law. Even though the extension agreement was legally ineffective, we held that the landowners, who had continued to abide by and enforce the covenants in reliance on their continued viability, were personally bound to comply with the restrictive covenants in the agreement that they had executed. Here, however, the Duffys never signed, voted for, or otherwise agreed to the 1996 Supplemental Declaration purporting to change the amendment process, and they actively opposed the 1997 transfer fee amendment. The defendants point out that the Duffys had notice of the Supplemental Declaration when they purchased the property and that purchasers who have notice of valid recorded covenants may be bound by those covenants even though they do not run with the land. But the Supplemental Declaration was ineffective from the outset because it was not adopted in conformity with the procedures set forth in the original covenants. The Duffys cannot be bound by a legally ineffective covenant to which they never agreed.

Because the transfer fee did not apply to the Duffys’ sale, the trial court erred in granting summary judgment to the defendants. We therefore reverse.

Judgment reversed.

Andrews, P. J, and Ellington, J., concur.

        Hansford v. Burns, 241 Ga. App. 407, 408 (526 SE2d 896) (1999).

       The Duffys later paid an amount equal to one percent of the purchase price into the registry of the court.

       That Code section states:
      Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.

       See, e.g., Willcox v. Kehoe, 124 Ga. 484 (52 SE 896) (1905).

       (Citation and punctuation omitted.) Canterbury Forest Assn. v. Collins, 243 Ga. App. 425, 427 (1) (b) (ii) (532 SE2d 736) (2000).

       See, e.g., Antill v. Sigmon, 240 Ga. 511-512 (241 SE2d 254)(1978).

       See Canterbury Forest Assn., supra at 427 (2).

       OCGA § 13-3-44 (a).

       Supra at 427 (2).

        Timberstone Homeowner’s Assn. v. Summerlin, 266 Ga. 322, 323-324 (467 SE2d 330) (1996) (properly recorded restrictive covenant to pay maintenance fees was binding on subsequent purchaser with notice, even though not stated in his deed).

       In view of our decision herein, we need not address the Duffys’ remaining enumeration of error.


author: Phipps, Judge.

text:
    A00A0270.
    STEPHENS v. McDONALD’S CORPORATION.
    (536 SE2d 566)
   Phipps, Judge.

Ruby Stephens appeals the trial court’s dismissal of her personal injury claims against McDonald’s Corporation. The primary issue is whether service of the complaint on an employee of a McDonald’s franchisee gave McDonald’s notice of the suit so that an amended pleading adding McDonald’s as a party defendant related back to the date of the original complaint. Stephens’s claims against McDonald’s are subject to the two-year statute of limitation applicable to personal injury claims. If the amendment does not relate back to the date of the original complaint, the claims are time barred. We find that the requirements of OCGA § 9-11-15 (c) have not been met and therefore affirm dismissal of the action.

Stephens fell in a McDonald’s restaurant on December 18, 1995, and filed suit to recover for her injuries. She named Paul Messer Area McDonald’s d/b/a McDonald’s Restaurants as the defendant in the initial complaint. In fact, Messer, individually, was the franchisee of the McDonald’s restaurant where Stephens fell. Stephens filed her complaint on December 15,1997, three days before the expiration of the two-year statute of limitation. On December 30, 1997, the sheriffs office served Messer’s employee, Leigh Sears, with a copy of the summons and complaint.

On November 16, 1998, Stephens moved to amend her complaint to change the name of the defendant to McDonald’s Corporation. That motion was granted. As instructed by the court, Stephens served McDonald’s with a copy of the summons, the complaint, the amendment, and the order granting the amendment. The documents were served on McDonald’s registered agent on November 16, 1998, via certified mail.

McDonald’s specially appeared and moved to dismiss Stephens’s amended complaint based on improper service of process, expiration of the statute of limitation, untimely service on Sears, and failure to meet the amendment requirements of OCGA § 9-11-15 (c). The trial court granted McDonald’s motion. Stephens appeals, contending that (1) service of process was properly made on an agent of McDonald’s; (2) she was entitled to amend her complaint as a matter of law and could do so properly under OCGA § 9-10-132 or § 9-11-15; and (3) she should not be prejudiced by any delay in service caused by the deputy sheriff.

1. Stephens contends that service on Sears, an employee of a McDonald’s franchisee, constituted service on McDonald’s.

A corporation may be served through its “president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof.” According to Messer’s affidavit, Sears was his employee and was not an employee of McDonald’s. McDonald’s submitted an affidavit from its corporate counsel stating that Sears was not a McDonald’s employee, was not authorized to act as an agent for McDonald’s, and had no authority to accept service on its behalf. Stephens submitted no evidence to contradict these affidavits. As a result, we find that service on Sears did not effect service on McDonald’s.

A corporation may also be served through its registered agent for service of process. Stephens made no attempt to employ this method of service until November 16, 1998, 11 months after the statute of limitation had expired.

2. In her second enumeration of error, Stephens erroneously contends that she is entitled to amend her complaint to add McDonald’s as a party defendant as a matter of right under either OCGA § 9-10-132 or § 9-11-15. An amendment may be made under OCGA § 9-10-132 to correct a misnomer or under OCGA § 9-11-15 to change the party against whom the.claim is asserted. In both instances, leave of court is required.

This is not a case of a mere misnomer of a party. Instead, McDonald’s, a new and distinct corporate entity, was substituted for the original defendant. Therefore, Stephens’s amendment was not proper under OCGA § 9-10-132.

Under OCGA § 9-11-15 (c), Stephens’s amendment changing the name of the defendant relates back to the date of the original complaint only if, prior to the expiration of the statute of limitation, the new defendant:

(1) has received such notice of the institution of the action that [it] will not be prejudiced in maintaining [its] defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against [it].

There is no evidence that McDonald’s received actual notice of Stephens’s original complaint before the statute of limitation expired. Stephens contends that, based on the agency relationship between McDonald’s and its franchisee, service of the complaint on Sears constituted notice to McDonald’s.

In Ford v. Olympia Skate Center, an amended complaint was served on the personal secretary of the man who served as president for both the original corporate defendant and the corporate defendant to be added and later on the president himself. The corporations had the same stockholders, bookkeeper, and accountant. Under those circumstances, we found the corporation to be added had sufficient notice of the pending action and, through its president, knew or should have known that, but for the mistake concerning its identity, the action would have been brought against it. That is not the case here. Stephens has failed to show that McDonald’s and its franchisee shared any officers, directors, employees, or agents.

We also fail to see how Stephens could have made a mistake about the identity of the franchisor of the McDonald’s restaurant. Presumably, the McDonald’s name and logo were prominently displayed throughout the restaurant. To determine the proper party defendants, it would not take extensive research to determine that McDonald’s had at least some interest in the restaurant. Nor is there any evidence in the record that McDonald’s knew or should have known the action would have been brought against it.

Based on the record, we find that McDonald’s did not have notice of the pending action prior to the expiration of the statute of limitation. Because Stephens’s amendment was improper under OCGA § 9-11-15 (c), the trial court properly held that her claims against McDonald’s were time barred.

3. Stephens contends the trial court improperly dismissed her complaint for failure to effect service diligently on the original defendant. The trial court’s order does not reflect timeliness of service on the original defendant as a basis for its decision to grant McDonald’s motion to dismiss. Because we find that Stephens’s claims against McDonald’s were time barred regardless of when the original complaint was served on Sears, we do not reach this issue.

Decided June 29, 2000

Reconsideration denied July 14, 2000.

Hicks & Massey, Frederick V. Massey, for appellant.

Gray, Hedrick & Edenfield, L. Bruce Hedrick, for appellee.

4. McDonald’s request for imposition of frivolous appeal penalties pursuant to Court of Appeals Rule 15 (b) is denied.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

       OCGA § 9-3-33.

       OCGA § 9-11-4 (d) (1).

       OCGA § 14-2-504 (a).

        Young v. Rider, 208 Ga. App. 147, 148 (1) (430 SE2d 117) (1993); Dollar Concrete Constr. Co. v. Watson, 207 Ga. App. 452 (428 SE2d 379) (1993).

        Charming Shoppes &c. v. Parrish, 214 Ga. App. 729, 731 (448 SE2d 781) (1994).

       OCGA § 9-11-15 (c).

       213 Ga. App. 600, 601-602 (1) (445 SE2d 362) (1994).

       Id. See also Rich’s, Inc. v. Snyder, 134 Ga. App. 889, 891-892 (1) (216 SE2d 648) (1975).

       See Swan v. Johnson, 219 Ga. App. 450, 451 (1) (465 SE2d 684) (1995) (relation back provisions of OCGA § 9-11-15 (c) not satisfied where it was unclear how any mistake could have been made as to individual’s identity as actual or potential party to the litigation).

       Compare Tanner’s Rome, Inc. v. Ingram, 236 Ga. App. 275, 276 (511 SE2d 617) (1999) (sister corporation of original defendant admitted that it knew or should have known the action would have been brought against it).


author: Miller, Judge.

text:
    A00A0363, A00A0364.
    BARGE et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY (two cases).
    (535 SE2d 837)
   Miller, Judge.

The question in Case No. A00A0363 is whether the adding of a $20 million indemnity claim to a pending $400,000 arbitration proceeding arising out of the same indemnity agreement, which was added with the consent of the arbitration panel, required that a separate arbitration panel be appointed to hear the new claim. The rules stipulated by the arbitration agreement authorized the panel to consider all new claims, and for this reason we answer this question in the negative and affirm. The question in Case No. A00A0364 is whether ordering a supersedeas appellate bond where the court has confirmed the underlying arbitration award but has not entered a written monetary judgment based upon this award is error. We answer this question in the affirmative and vacate the supersedeas bond order.

St. Paul Fire & Marine Insurance Company bonded certain construction projects of Barge-Wagener, Inc. When Barge-Wagener experienced financial difficulties in completing these projects, St. Paul in May 1994 agreed to advance funds to assist if John Barge (a principal in Barge-Wagener) and his wife agreed to turn over their tax refunds — about $400,000 — to St. Paul and agreed to indemnify St. Paul for any costs or losses arising out of these money advances to Barge-Wagener. The parties agreed to arbitrate any disputes related to the agreement “in accordance with the Construction Arbitration Rules of the American Arbitration Association.”

A dispute arose out of the tax refund turnover, resulting in St. Paul filing an arbitration demand with the AAA in January 1995. Per the AAA’s November 1993 rules that were in effect at the time of the arbitration demand (and in effect at the time the agreement was executed), a three-member panel was chosen. While the proceedings were pending, St. Paul moved in May 1996 to amend its arbitration demand to include a new claim for more than $20 million in losses it had incurred in advancing funds to complete the Barge-Wagener projects. The Barges objected, pointing to new rules of the AAA (effective April 1, 1996) which required that construction claims over $1 million be heard by specialized arbitrators from a particular roster. The Barges argued that because no panel member was on that roster, the panel lacked the power to hear the $20 million claim. Over the Barges’ objection, the arbitration panel consented to hear the new claim as a part of the proceedings. In response to an inquiry and arguments by the Barges, the AAA itself confirmed that the panel had the authority to hear the new claim.

The Barges unsuccessfully sought to stay the arbitration proceedings. The panel awarded St. Paul $21,748,310 plus interest. St. Paul immediately applied to the Superior Court of Fulton County to have the award confirmed, and the Barges counterclaimed to vacate it on the ground that the panel lacked the power to hear the $20 million claim. On the same ground, the Barges filed a federal court action to vacate the arbitration award and then moved the superior court to stay its proceeding in deference to the federal proceeding. Denying the stay, the superior court granted St. Paul’s motion for summary judgment and confirmed the award, which order the Barges appeal in Case No. A00A0363. The court then ordered the Barges to post a supersedeas bond of $24 million, which order the Barges appeal in Case No. A00A0364 on the ground that the court never entered a judgment on the award.

Case No. A00A0363

1. The only question in this appeal is whether the court erred in confirming the arbitration award. The Barges contend that the award is invalid because under the Federal Arbitration Act the arbitrators had exceeded their powers, and under the Georgia Arbitration Code they had overstepped their authority.

Under both federal and Georgia law, arbitration is a matter of contract, meaning that arbitrators derive their authority to resolve disputes only from the parties’ agreement. Thus, the extent of that authority depends on the language of the contract.

The contract here provided:

18. ARBITRATION. Any and all disputes arising out of or in connection with execution or performance of this Agreement, including any breach thereof, shall be resolved through Arbitration in accordance with the Construction Arbitration Rules of the American Arbitration Association. The decision of the arbitrators shall be final and binding upon the parties and enforceable in any court having competent jurisdiction.

At the time the agreement was executed in May 1994, the November 1993 AAA rules were in effect, which provided in Rule 1:

The parties shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the American Arbitration Association (hereinafter AAA) or under its Construction Industry Arbitration Rules. These rules and any amendment of them shall apply in the form obtaining at the time the demand for arbitration ... is received by the AAA.

In January 1995 when the AAA received St. Paul’s arbitration demand, the November 1993 rules were still in effect. Under Rule 6 of these rules, an arbitration demand is a written notice of an intent to arbitrate, describing the nature of the dispute, the amount involved, the remedy sought, and the hearing locale requested. The party demanding arbitration files with the AAA three copies of the demand, three copies of the arbitration provisions of the contract, and a filing fee. Rule 8 contemplates that after the filing of a claim, either party may assert any new or different claim or counterclaim in the arbitration proceedings if made in writing and filed with the AAA (with a copy to the other party), and if consented to by any arbitrators who may have been appointed before the filing of the new claim. No provision exists to have claims exceeding $1 million heard by specialized arbitrators from a separate roster.

Since St. Paul’s arbitration demand was made in January 1995, the November 1993 rules (incorporated as part of the arbitration agreement) applied per Rule 1 to the arbitration proceedings throughout their life. The April 1996 revisions simply never applied. The November 1993 rules therefore governed the motion by St. Paul in May 1996 to add the $20 million claim to the proceedings. There was no rule which required large claims to be heard by a special group of arbitrators. Rule 8 empowered the arbitration panel to consider the new claim as a part of the proceedings if it consented. The panel consented, and therefore the Barges’ argument that the panel acted beyond its authority must fail.

The Barges claim, however, that the motion to add the $20 million claim was itself a new demand for arbitration and that, therefore, the key date for determining which rules to apply was May 1996, by which time the April 1996 rules requiring that only certain arbitrators hear such large claims were in effect. When the Barges presented this argument to the arbitration panel and to the AAA, both tribunals apparently interpreted the rules to mean that the motion was merely an amendment to the January 1995 arbitration demand, and not a new arbitration demand in and of itself, for both tribunals concluded (1) that the November 1993 rules governed, (2) that the April 1996 rules regarding a special roster did not apply, and (3) that the arbitration panel had the power to determine the new claim.

The AAA’s interpretation of its rules is entirely consistent with the language and structure of those rules. The filing to add the new claim was, in our view, not a demand for arbitration. Under Rule 6, arbitration demands initiate the proceedings, request a hearing locale, and are accompanied by a filing fee. This new claim did none of that but fell within the meaning of Rule 8, which empowers arbitrators in an ongoing proceeding to hear “any new or different claim or counterclaim” if they consent. Adding the new claim was more in the nature of an amendment to the arbitration demand; thus, in our first opinion regarding the stay in this case, we repeatedly referred to the new claim as an amendment to the arbitration demand.

Moreover, the AAA’s interpretation of the interplay of these two sets of rules must be accorded deference. Rule 52 of the November 1993 rules (incorporated by reference into the parties’ agreement as per Rule 1) provides that the arbitration panel interprets and applies the rules insofar as they relate to the arbitration panel’s powers and duties. The AAA itself interprets all other rules. Either the panel or a party may refer a “powers and duties” question to the AAA for final decision. Plainly stated, the parties agreed that the AAA’s interpretation of the rules would be binding. “Given the parties’ designation of the AAA as the supervisory authority regarding the resolution of disputes under the agreement, the AAA’s view of the meaning of its rules is of considerable significance.”

The arbitration panel did not exceed its powers nor overstep its authority in deciding the $20 million claim. Therefore, the trial court correctly confirmed the arbitration award.

Case No. A00A0364

2. The Barges further appeal the court’s order requiring them to post a $24 million bond to preserve the supersedeas effect of their main appeal. They argue that absent a money judgment on the order confirming the award, no supersedeas bond could be required. St. Paul counters that no separate money judgment was necessary, as the confirmation order allowed one to calculate the amount of the judgment based on the arbitration award found in the record.

OCGA § 5-6-46 (a) authorizes a trial court to require a supersedeas bond “conditioned for the satisfaction of the judgment in full” if the appeal is unsuccessful, and where the judgment is for the recovery of money not otherwise secured, to fix the amount of the bond “as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay. . . Under this language, entry of a money judgment is an implied prerequisite to requiring a supersedeas bond in cases like this (i.e., cases involving only an award of money and involving no injunctive or other equitable relief); otherwise there would be nothing to execute upon, which execution is what the supersedeas is designed to prevent.

Here the arbitration award was not attached to the court’s order confirming the award, and thus no one can discern the amount of the judgment without referring to a document extraneous to the order. “It is a fundamental rule that a judgment should be complete and certain in itself. The general rule is that judgments must be certain and definite as to the amount thereof.” As such, the confirmation order was not a certain and definite money judgment upon which an execution could operate, and thus there was no execution for a supersedeas to prevent. Accordingly, the court was without power to require a supersedeas bond.

Decided June 14, 2000

Reconsideration denied July 14, 2000

Schreeder, Wheeler & Flint, David H. Flint, John A. Christy, Debbie A. Wilson, for appellants.

Wasson, Sours & Harris, Edward H. Wasson, Jr., W. Hensell Harris, Jr., for appellee.

Moreover, the procedure to confirm an arbitration award specifically contemplates the entry of a separate judgment on the award. OCGA § 9-9-15 provides:

(a) Upon confirmation of the award by the court, judgment shall be entered in the same manner as provided by Chapter 11 of this title and be enforced as any other judgment or decree.
(b) The judgment roll shall consist of the following:
(1) The agreement and each written extension of time within which to make the award;
(2) The award;
(3) A copy of the order confirming, modifying, or correcting the award; and
(4) A copy of the judgment.

It is true that OCGA § 9-11-54 (a) provides that “[t]he term ‘judgment,’ as used in this chapter, includes a decree and any order from which an appeal lies.” Thus, as so defined, “judgment” would include an order granting summary judgment, for such is directly appealable under OCGA § 9-11-56 (h). But with regard to judicial actions confirming arbitration awards, the judgment and the order confirming the award must be on separate documents, for OCGA § 9-9-15 (b) provides that the judgment roll shall consist of (1) a copy of the order confirming the award and (2) a copy of the judgment. Thus, there was no judgment here to support the supersedeas order.

Accordingly, we vacate the supersedeas bond order. Once a proper money judgment is entered, a supersedeas bond order would be available if an appeal is pending.

Judgment affirmed in Case No. A00A0363. Judgment vacated in Case No. A00A0364.

Pope, P. J., and Smith, P. J., concur.

       See St. Paul Fire &c. Ins. Co. v. Barge, 225 Ga. App. 392 (483 SE2d 883) (1997).

       At oral argument the Barges expressly abandoned their enumeration that the court erred in denying the stay.

       See 9 USC § 10 (a) (4).

       See OCGA § 9-9-13 (b) (3).

        AT&T Technologies v. Communications Workers of America, 475 U. S. 643, 648-649 (II) (106 SC 1415, 89 LE2d 648) (1986); North Augusta Assoc. v. 1815 Exchange, 220 Ga. App. 790, 792 (2) (469 SE2d 759) (1996).

       See id.; Cargill Rice, Inc. v. Empresa Nicaraguense Dealimentos Basicos, 25 F3d 223, 225 (II) (4th Cir. 1994); Szuts v. Dean Witter Reynolds, Inc., 931 F2d 830, 831 (11th Cir. 1991).

       This conclusion renders moot St. Paul’s res judicata argument.

        Barge, supra, 225 Ga. App. at 393-395.

        York Research Corp. v. Landgarten, 927 F2d 119, 123 (A) (2nd Cir. 1991); see Diemaco v. Colt’s Mfg. Co., 11 FSupp.2d 228, 232 (II) (A) (3) (D. Conn. 1998); cf. Atlanta Journal &c. v. Babush, 257 Ga. 790, 792 (2) (364 SE2d 560) (1988) (administrative agency’s interpretation of its own rules should be accorded deference).

       This issue is not moot, for if certiorari were pursued on Case No. A00A0363 but not Case No. A00A0364, then the requirement of a supersedeas bond would still be in effect pending the final resolution of Case No. A00A0363.

       (Citations and punctuation omitted.) Hutcheson v. Hutcheson, 197 Ga. 603, 604 (30 SE2d 107) (1944).