text:
    A01A2501.
    DAVID C. JOEL, ATTORNEY AT LAW, P.C. v. CHASTAIN.
    (562 SE2d 746)
   Andrews, Presiding Judge.

A jury found David C. Joel, Attorney at Law, P.C. (the P.C.) breached its fiduciary duty to its client, Brenda Chastain, and awarded Chastain $4,000 in compensatory damages and $20,000 in attorney fees pursuant to OCGA § 13-6-11. The jury found in favor of the P.C. on Chastain’s claims under the Fair Business Practices Act and for fraud. The P.C. claims the evidence did not support the verdict and that the trial court erroneously instructed the jury. Because we find no error in the instructions, and find evidence supporting the jury’s conclusion that the P.C. breached its fiduciary duty and harmed Chastain, we affirm as to the breach of fiduciary duty and compensatory damages. Although we conclude there was sufficient evidence of bad faith to support the award of attorney fees pursuant to OCGA § 13-6-11, we vacate the award and remand the case to the trial court for a hearing to determine what portion of the $20,000 awarded was attributable to Chastain’s successful claim.

1. The evidence viewed in favor of the verdict was sufficient to show a breach of fiduciary duty and damages flowing from the breach.

After Chastain was injured in an automobile accident in March 1996, she retained Joel’s P.C. in May 1996 to represent her on a personal injury claim. Joel, who at the time was the sole shareholder of the P.C., testified that he developed the P.C. into a “volume practice” using television and other advertising. Joel was not in the P.C.’s office on a regular basis, took no part in handling the cases, and was notified by weekly faxes of case dispositions after they had settled. According to Joel, “generally the case management decisions for the Georgia clients would have been left primarily to those persons who staffed the Atlanta office.” Evidence showed that, during some periods when important settlement decisions were being made on Chas-tain’s case, the P.C. employed one attorney other than Joel at the Atlanta office and eleven nonattorney support staffers to handle up to 500 pending cases. To manage the high volume, the P.C. employed nonattorney “case negotiators” who were authorized under the P.C.’s guidelines to relay settlement offers from insurance companies to clients, respond for the client to the offers, and, under supervision and instructions from the attorney, advise the client on accepting or rejecting the offers.

Under this system, Joel testified that Chastain’s case was assigned to a nonattorney employee of the P.C., Terry Lee, who acted as Chastain’s “case negotiator.”

Q: As a case negotiator for [the P.C.], it would not be possible for Terry Lee to have given Ms. Chastain legal advice on whether she should accept or reject a particular offer, would it?
A: I’m not sure that he would have, but it is possible.
Q: He was authorized to do that, correct?
A: He was authorized to transmit the offers from the insurance company and relay the client’s wishes back to the insurance company. Now, what the parameters of that authorization was in his mind, I don’t know.
Q: And he could also advise your clients on accepting or rejecting the offers, isn’t that what you told us at your deposition?
A: Within the guidelines that were set, he could do that.
Q: Mr. Joel, is your contention that in addition to Mr. Lee and any other lay person that might have worked on Ms. Chastain’s file that an actual attorney was assigned to the case from the time she initially retained [the P.C.]?
A: That’s not how we operate it, but she would have been able to speak to a lawyer at any time during that two-year period.
Q: Which attorneys had reviewed Ms. Chastain’s case file before July of 1997?
A: I don’t know.
Q: There’s no way for you to determine if any attorney was involved with that case, is there?
A: No. But it would have been [the attorney] who was there. ... I wasn’t there, so I don’t know.

Upon review of the P.C.’s file on Chastain, Joel was unable to find any reference to an attorney’s involvement in the case prior to January 1998. He stated that there may be evidence of attorney involvement in the P.C.’s computerized case management system, but no such evidence was produced. Joel testified that there was no procedure in place for client files to be reviewed by an attorney on a periodic basis, and he acknowledged that the system he created for operation of the P.C. was fraught with potential trouble.

Q: So you had 11 administrative employees, with one attorney who wasn’t there all the time. Isn’t that ratio just asking for trouble?
A: Could be.

After seeing the P.C.’s television advertisements, Chastain contacted the P.C., met with nonattorney employees, and signed a fee contract with the P.C. in May 1996. Thereafter, the P.C. assisted her through nonattomey employees in seeing physicians for treatment of her injuries through November 1996. In July 1997, Lee, a nonat-torney case negotiator for the P.C., contacted Chastain. Lee introduced himself to Chastain as the P.C.’s attorney who had been assigned to handle negotiations with the insurance company in her case. Lee subsequently conveyed several offers to Chastain from the insurance company (all of which Chastain rejected), advised Chas-tain not to pay pending medical bills, and recommended that she take the insurance company’s final offer of $10,000. Despite her directions to Lee to reject the $10,000 offer, a few days later Chastain received correspondence from the P.C. dated September 5, 1997, containing settlement and release documents indicating her case had been settled with the insurance company for $10,000. When Chas-tain contacted Lee about the documents, he told her they were sent by mistake and to throw them away. Evidence showed, however, that Lee had in fact accepted the insurance company’s $10,000 offer on behalf of Chastain without her consent, although Chastain was not informed of this fact.

Unhappy with Lee, Chastain called the P.C. asking to speak to Joel, but he never returned her calls. Joel testified that he was never told by the P.C. that she called. In November 1997, Chastain called the P.C. to determine the status of her case and was informed that Lee was no longer employed by the P.C. At that time, she asked again to speak with Joel but was told he was unavailable. Over a period of several weeks, Chastain called the P.C. on numerous occasions asking to speak to Joel or another attorney about her case. She was told no one was available, and her calls were not returned. Chastain persisted, and during yet another call to the P.C. in January 1998, she finally spoke to an attorney employed by the P.C. The attorney, George French, told Chastain that Lee no longer worked for the P.C. and that he had been arrested for falsely representing himself to be an attorney. During her conversation with French, Chastain learned for the first time that Lee was not an attorney and that he had settled her case for $10,000 without her consent. Evidence showed Lee was arrested at the P.C. in September 1997 on charges that he had practiced law without a license prior to being employed by the P.C. Joel testified that Lee was not authorized to represent himself as an attorney or settle cases without consent and that Lee was fired after he was arrested.

Chastain filed a grievance with the State Bar over the representation provided by the P.C. The P.C. offered to forfeit its legal fees and give Chastain the entire $10,000 settlement check if she would drop the grievance. After Chastain rejected this offer, the P.C. took the position on behalf of Chastain that the settlement was a nullity and timely filed a suit for Chastain. Chastain eventually agreed to a $25,000 settlement of her case obtained by the P.C. Chastain testified that she experienced severe emotional distress and depression as a result of the manner in which the P.C. handled her case, especially the misrepresentations by Lee.

Chastain’s subsequent suit against the P.C. was not for legal malpractice, but asserted claims for breach of fiduciary duty, violation of the Fair Business Practices Act, and for fraud. In addition to compensatory damages, the suit sought recovery of punitive damages and attorney fees pursuant to OCGA § 13-6-11. The jury returned a verdict in favor of Chastain on the breach of fiduciary duty claim and awarded $4,000 in compensatory damages and $20,000 for attorney fees. The jury returned a verdict in favor of the P.C. on the remaining claims and refused to award punitive damages.

As Chastain’s legal representative, Joel’s P.C. had a fiduciary relationship with its client. Tante v. Herring, 211 Ga. App. 322, 327 (439 SE2d 5) (1993), rev’d on other grounds, 264 Ga. 694 (453 SE2d 686) (1994); see Henderson v. HSI Financial Svcs., 266 Ga. 844, 845 (471 SE2d 885) (1996) (attorney practicing in a professional corporation owes same duty to clients, and the professional corporation is liable for actions of its members). Thus, the P.C. had a fiduciary duty to show Chastain the utmost good faith and loyalty and to act solely for her benefit. Tante, 211 Ga. App. at 327. In performing this duty, the P.C. was obligated not to pursue any interest or take any act adverse to Chastain’s interests or incompatible with applying its best skill, zeal, and diligence in representing Chastain. Id.; Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 67 (537 SE2d 670) (2000); Tunsil v. Jackson, 248 Ga. App. 496, 499 (546 SE2d 875) (2001).

There was evidence from which the jury could have concluded that the P.C. violated this fiduciary duty to Chastain. Joel organized his P.C. to handle a high volume of cases using nonattorney “case negotiators” like Lee and other support staff, at times under the supervision of a single attorney. Although attorneys generally employ nonattorneys such as secretaries, investigators, and other paraprofessionals to assist them in providing legal services to clients, they act for the attorney and must be adequately trained and supervised to ensure that the attorney’s legal and ethical duties to clients are not compromised. See Georgia Rules of Professional Conduct, Rule 5.3. Joel’s testimony shows that he was unsure of the amount of attorney supervision, if any, that Chastain’s case received. Despite no evidence that Joel or the P.C. sanctioned the misrepresentations that Lee made to Chastain while acting as her “case negotiator,” the jury was authorized by the evidence to conclude that Joel deliberately organized his P.C. in a manner which allowed Lee, without adequate supervision by an attorney, to mishandle Chastain’s case and that this breached the P.C.’s fiduciary duty to apply its best skill, zeal, and diligence in representing Chastain.

As to damages flowing from this breach, there was evidence that Chastain suffered severe mental distress caused by Lee’s misrepresentations and mishandling of her case. As a general rule, mental distress damages are not recoverable in the absence of physical injury where the claim is premised on ordinary negligence. Hamilton v. Powell, Goldstein, Frazer &c., 252 Ga. 149, 150 (311 SE2d 818) (1984). However, mental distress damages may be recovered without proof of physical injury where the claim is based on intentional misconduct. Id. There was evidence that Chastain was damaged by intentional acts of an employee of the P.C. acting within the scope of his employment. Moreover, there was evidence that Joel intentionally instituted the system of practice at his P.C. which provided inadequate supervision of the employee at issue. This was sufficient to allow the jury to conclude that the conduct resulting in the breach of fiduciary duty was intentional or showed a reckless indifference to consequences equivalent to intent. Id. Accordingly, there was evidence supporting the jury’s award of $4,000 in mental distress damages caused by the breach of fiduciary duty.

2. We find no merit in the P.C.’s contention that, as a matter, of law, Chastain waived her cause of action for breach of fiduciary duty because, after the breach, she allowed the P.C. to continue representing her by filing suit and settling the case.

The breach of fiduciary duty and resulting harm in this case were unrelated to the fact that, after the P.C. discovered the misconduct of its employee, it took steps to properly handle the case. Under the circumstances, there was no waiver. Paul v. Destito, 250 Ga. App. 631, 637-638 (550 SE2d 739) (2001); compare Mauldin v. Weinstock, 201 Ga. App. 514, 519-520 (411 SE2d 370) (1991).

3. The trial court did not err by instructing the jury on the State Bar Rules standard of conduct in effect at the time, which stated that a lawyer shall not aid a nonlawyer in the unauthorized practice of law, including giving legal advice or taking action for others in matters connected to the law.

An instruction on this standard was proper under the facts of this case. Central to Chastain’s claim was evidence that a nonattorney employed by the PC., who was not adequately supervised by an attorney, misrepresented himself as an attorney, advised Chastain on the case, and settled the case without her consent. The standard at issue was intended to protect a client in Chastain’s position from the type of harm she suffered and was relevant to the jury’s consideration of whether these actions constituted a violation of the P.C.’s fiduciary duty to Chastain. Allen v. Lefkoff, Duncan, Grimes &c., 265 Ga. 374 (453 SE2d 719) (1995).

4. The evidence was sufficient to support the jury’s award of attorney fees to Chastain pursuant to OCGA § 13-6-11.

Attorney fees may be awarded pursuant to OCGA § 13-6-11 despite the existence of a bona fide controversy where bad faith is shown. Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219, 224-225 (312 SE2d 386) (1983). Contrary to the P.C.’s contention, we find there was sufficient evidence of bad faith to create a jury issue as to the award of attorney fees. Evidence showed that the P.C.’s employee, Lee, misrepresented himself as an attorney and settled Chastain’s case without her consent in September 1997. Unknown to Chastain, Lee was subsequently arrested at the P.C. in September 1997 for previously practicing law without a license. Although Chastain made numerous calls to the P.C. after September attempting to speak to an attorney to ascertain the status of her case, she was continually rebuffed, told no one was available, and was given no information about Lee’s arrest or the fact that her case had been settled by Lee without her consent. Finally, after over three months of attempting to get information, Chastain was informed by an attorney for the P.C. in January 1998 that her case had been mishandled. There was sufficient evidence for the jury to conclude that the P.C. acted in bad faith in conjunction with its breach of fiduciary duty. Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 750 (542 SE2d 151) (2000).

Decided March 12, 2002

Reconsideration denied March 29, 2002

Martin H. Rubin, for appellant.

David C. Joel, pro se.

Warren R. Hinds, for appellee.

Nevertheless, Chastain was entitled only to attorney fees attributable to the breach of fiduciary duty claim on which she prevailed. Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993). On Chastain’s other claims under the Fair Business Practices Act and for fraud, the jury rendered verdicts for the P.C. Because the attorney fee award was in a lump sum and Chastain did not prove the amount of attorney fees attributable to her successful claim, we reverse the attorney fees award and remand the case to the trial court for an evidentiary hearing to allow Chastain to establish the amount of her attorney fees that were attributable to the claim on which she prevailed. United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (475 SE2d 601) (1996).

Judgment affirmed in part, reversed in part and case remanded with directions.

Eldridge and Miller, JJ, concur.

       Joel testified he later phased out the case negotiator system because of “the confusion it may or may not have created. . .

       We render no opinion on whether there was any conduct which could constitute a violation of State Bar Rules in effect at the time.


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A00A0120.
    TIME WARNER ENTERTAINMENT COMPANY, L.P. et al. v. SIX FLAGS OVER GEORGIA, LLC et al.
    (563 SE2d 178)
   Ellington, Judge.

This is the second appearance of this case before this Court. On July 13, 2000, we affirmed the jury’s award of compensatory and punitive damages to appellees Six Flags Over Georgia, LLC (“Flags”) and Six Flags Fund, Ltd., L.P. (“Fund”). Time Warner Entertainment Co. v. Six Flags Over Ga., 245 Ga. App. 334 (537 SE2d 397) (2000) (“Time Warner”). On January 18, 2001, the Supreme Court of Georgia denied the petition for a writ of certiorari filed by appellants Time Warner Entertainment Company, L.P. (“TWE”) and its subsidiaries Six Flags Over Georgia (“SFOG”), Six Flags Entertainment Corporation (“SFEC”), and Six Flags Theme Parks, Inc. (“SFTP”). Time Warner Entertainment Co. v. Six Flags Over Ga., 2001 Ga. LEXIS 98. However, on October 1, 2001, the United States Supreme Court granted certiorari, vacated our opinion, and remanded the case to us for further consideration in light of an opinion it issued on May 14, 2001, Cooper Indus. v. Leatherman Tool Group, 532 U. S. 424 (121 SC 1678, 149 LE2d 674) (2001) (“Leatherman”). Time Warner Entertainment Co. v. Six Flags Over Ga., _ U. S. _ (122 SC 24, 151 LE2d 1) (2001). Upon remand, we redocketed this case and gave the parties an opportunity to brief and to orally argue the relevant issues.

1. Leatherman pertains only to our analysis of whether the award of punitive damages in this case was excessive. We addressed whether the award of punitive damages was excessive in Division 6 (c) of our original opinion. Time Warner, 245 Ga. App. at 356-357 (6) (c). Therefore, with the exception of Division (6) (c), we hereby reinstate our original opinion, Time Warner, 245 Ga. App. at 334-357.

2. Review of Allegedly Excessive Punitive Damages Awards.

(a) The Standard of Review.

(i) Federal Constitutional Excessiveness Claims. Leatherman requires state and federal appellate courts to review de novo claims that punitive damages awards are grossly excessive in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Leatherman, 532 U. S. at 433-434. However, “[i]f no constitutional issue is raised, the role of the appellate court, at least in the federal system, is merely to review the trial court’s 'determination [on the excessiveness issue] under an abuse of discretion standard.’ ” Id. at 433, citing Browning-Ferris Indus. v. Kelco Disposal, 492 U. S. 257, 279 (109 SC 2909, 106 LE2d 219) (1989); see also Foster v. Time Warner Entertainment Co., 250 F3d 1189, 1194, n. 3 (8th Cir. 2001) (“Time Warner has not argued that the punitive damages award violated its right to due process which would require a de novo review of the denial of its motion [for new trial or remittitur]” under Leatherman.). Further, if the federal constitutional claim is not raised in the court below, such arguments on appeal are “unavailing.” Leatherman, 532 U. S. at 433, n. 7.

Because Leatherman applies only to excessive punitive damages claims raised under the federal constitution’s due process clause, it does not reach excessiveness claims raised under state and federal common law. Thus, state and federal appellate courts remain free to review common law excessiveness claims under an abuse of discretion standard. See id.; Foster, 250 F3d at 1194; Stroud v. Lints, 760 NE2d 1176, 1180 (I) (Ind. App. 2002) (following the U. S. Supreme Court’s remand for reconsideration in light of Leatherman, the Indiana Court of Appeals concluded that since no federal constitutional claim was raised, it could review the common law excessiveness claim under an abuse of discretion standard).

As one scholar quipped, judicial review of excessive punitive damages awards “now comes in both common-law and constitutional flavors.” Murphy, Punitive Damages, Explanatory Verdicts, and the Hard Look, 76 Wash. L. Rev. 995, 1014 (Oct. 2001). Since Leatherman, many state and federal courts have recognized this federal due process/common law analytical split. For example, in July 2001, the Eleventh Circuit reviewed an award of both compensatory and punitive damages in a diversity action under an abuse of discretion standard. Middlebrooks v. Hillcrest Foods, 256 F3d 1241, 1249 (IV) (11th Cir. 2001). Applying Georgia law to the common law excessiveness claim, the Eleventh Circuit noted that de novo review under Leatherman was not required because the appellant failed to argue that the punitive damages award violated its constitutional rights. Id. at 1249, n. 5. Although some state appellate courts have embraced Leatherman’s de novo standard of review and applied it to all excessive punitive damages claims, e.g., Campbell v. State Farm &c. Auto. Ins. Co., 432 Utah Adv. Rep. 44 (2001), other jurisdictions have declined to extend the standard’s application beyond its federal due process bounds, e.g., Trinity Evangelical Lutheran Church v. Tower Ins. Co., 641 NW2d 504 (Wis. App. 2002); Stroud v. Lints, 760 NE2d 1176 (Ind. App. 2002); State Compensation Ins. Fund v. WPS, Inc., 2001 Cal. App. LEXIS 1410. The Supreme Court of Georgia has yet to enter this fray, so we proceed with caution.

In Kent v. A. O. White, Jr., Consulting Engineer, P.C., 249 Ga. App. 893 (553 SE2d 1) (2002), a panel of this Court assumed that the Supreme Court of Georgia “sub silentio” adopted Leatherman with respect to all excessive punitive damages award claims by virtue of an order remanding Kent to this Court. We are now convinced, however, that the remand order had no such implications. The Supreme Court of Georgia’s remand order in that case, like the U. S. Supreme Court’s remand order in this case, was a mandate to reconsider our opinion “in light of” Leatherman. Kent v. A. O. White, Jr., Consulting Engineer, P.C., 2001 Ga. LEXIS 929. The U. S. Supreme Court has recognized that such a “grant-vacate-remand” order (“GVR”) is a deferential method of sending a case back to a lower tribunal so that it may reconsider its decision in light of an intervening legal event. See Lawrence v. Chater, 516 U. S. 163, 166-169 (116 SC 604, 133 LE2d 545) (1996); see also Hoover v. Kiowa Tribe &c., 986 P2d 516, 519 (Okla. 1999) (Wilson, J., dissenting). As Justice Scalia explained, “we left it to the state court to decide the effect of the intervening event, rather than follow our usual practice of deciding that question for ourselves.” Lawrence v. Chater, 516 U. S. at 179 (Scalia, J., dissenting). Also, the Supreme Court of Georgia, in Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 616-617 (409 SE2d 501) (1991), a punitive damages case that was “GVR’d” by the U. S. Supreme Court in light of new case law, distinguished the intervening case law and affirmed and reinstated its previous decision. Implicitly then, if a higher court remands a case to a lower court to decide an issue for itself, it logically follows that the higher court did not decide the issue pending before it. Therefore, tp the extent Kent holds that the Supreme Court of Georgia, by virtue of its remand order, adopted the Leatherman standard of review with respect to all excessive punitive damages award claims, it is hereby overruled.

(ii) State Common Law Excessiveness Claims. Because Leatherman applies only to excessiveness claims raised under the due process clause of the federal constitution, precedent dictates that we must continue to review state common law claims under an abuse of discretion standard. Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 760-766 (1)-(5) (386 SE2d 120) (1989), vacated, 499 U. S. 914 (111 SC 1298, 113 LE2d 234) (1991), reinstated, 261 Ga. 613, supra; see also Scott v. Battle, 249 Ga. App. 618, 621 (3) (548 SE2d 124) (2001). The Supreme Court of Georgia explained in Hosp. Auth. of Gwinnett County v. Jones that the right to punitive damages derives from the common law. 259 Ga. at 764 (5) (b); 261 Ga. at 616-617 (2). This Court has also held that the right to punitive damages is “as old as the right of trial by jury itself,” is a “well established principle of the common law,” and “is not, as many seem to suppose, an innovation upon the rules of the common law.” (Citations and punctuation omitted.) K-Mart Corp. v. Hackett, 237 Ga. App. 127, 132-133 (2) (514 SE2d 884) (1999). Our deferential standard of review in punitive damages cases is, in fact, well over two centuries old and derives from the aptly named English common law case, Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (K. B. 1763). See Seaboard Air-Line R. v. Miller, 5 Ga. App. 402, 405 (63 SE 299) (1908). The King’s Bench in Huckle opined that “it is very dangerous for the judges to intermed-dle in damages for torts; it must be a glaring case indeed of outrageous damages in a tort, and which all mankind at first blush must think so, to induce a court to grant a new trial for excessive damages.” See Seaboard, 5 Ga. App. at 405, quoting Huckle. This principle underlies OCGA § 51-12-12 (a), pertaining to court interference with damages awards generally: “The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.”

Applying this principle to appellate courts, the Supreme Court of Georgia explained that reviewing courts lack

the broad discretionary powers invested in trial courts to set aside verdicts, and where the trial court before whom the witnesses appeared had the opportunity of personally observing the witnesses has approved the verdict, this court is without power to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means.

(Citation and punctuation omitted.) Smith v. Miliken, 247 Ga. 369, 372 (3) (276 SE2d 35) (1981). The reasoning implicit in this rule is that an excessive or inadequate verdict constitutes a mistake of fact rather than of law. Moody v. Dykes, 269 Ga. 217, 221-222 (6) (496 SE2d 907) (1998), citing Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 165 (2) (473 SE2d 256) (1996). Under our system of jurisprudence, the resolution of factual issues is usually for the jury. Id.; McClure v. Gower, 259 Ga. 678, 684 (385 SE2d 7) (1989) (“the amount of the punitive damage award is ‘exclusively a question for the jury to determine’ ”) (citation omitted). The U. S. Supreme Court, however, broke with common law tradition (and avoided the application of the Seventh Amendment) by characterizing a jury’s decision to award a certain amount of punitive damages as a question of law. Leatherman, 532 U. S. at 437. Some scholars consider this a “dangerous development,” one that moves “the locus of decision-making away from juries and trial judges and toward appellate courts.” (Footnote omitted.) Dorsaneo, Reexamining the Right to Trial by Jury, 54 S.M.U. L. Rev. 1695, 1733 (2001). In fact, in Todd v. Roadway Express, 178 FSupp.2d 1244 (M.D. Ala. 2001), the defendant argued that since the punitive damages inquiry is no longer a factual one, the plaintiff is no longer entitled to a jury trial on punitive damages. The district court refused to extend Leatherman to this extreme. Id.

Because the Supreme Court of Georgia has not embraced the idea that an award of punitive damages is a question of law, we believe we are bound by precedent to defer to the jury’s factual decision-making process and to apply an abuse of discretion standard when evaluating whether an award is excessive under the common law. See, e.g., Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. at 766 (5); Scott v. Battle, 249 Ga. App. at 621 (3); Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. at 164 (1).

(b) Criteria for Evaluating “Excessiveness” of Punitive Damages Awards.

When an appellant has properly raised a federal due process claim, the reviewing court must apply the three “guideposts” set out in BMW of North America v. Gore, 517 U. S. 559 (116 SC 1589, 134 LE2d 809) (1996) (“Gore”), in its de novo review of whether the award of punitive damages is grossly excessive. Leatherman, 532 U. S. at 440. When an appellant has not raised a federal constitutional due process claim, however, we apply state common law criteria for determining whether a punitive damages award is excessive. See id.

The Supreme Court of Georgia has held that an award of punitive damages under OCGA § 51-12-5.1 is to deter the repetition of reprehensible conduct by the defendant or others. Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. at 614-615 (1), n. 2. “Because deterrence is based on factors other than the actual harm caused, we rejected the notion that punitive damages must necessarily bear some relationship 6to the actual damages awarded by the jury.” (Citation and emphasis omitted.) Id. at 614 (1). Instead, the appellate courts look to see whether the award “shock[s] the judicial conscience.” (Citation and punctuation omitted.) Wilson Welding Svc. v. Partee, 234 Ga. App. 619, 620 (507 SE2d 168) (1998). This test, which has been applied to damages awards based on jury verdicts generally, has a very long history and has been more fully elaborated thus:

Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear exorbitant, flagrantly outrageous, and extravagant. It must carry its death warrant upon its face. Although a verdict may be large and generous, where the evidence abundantly authorized a finding for the plaintiff, this court does not feel authorized under the law to set the verdict aside on the sole ground that it is excessive, there being nothing in the record to indicate prejudice or bias on the part of the jury, and the verdict having been approved by the trial judge.

(Citations and punctuation omitted.) Western & Atlantic R. v. Burnett, 79 Ga. App. 530, 542-543 (7) (54 SE2d 357) (1949). Of course, an appellate court may look to the ratio of compensatory to punitive damages for some evidence that the punitive damages award is infected by bias or prejudice. See Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. at 614 (1); Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. at 164 (1) (e); Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 301-302 (4) (c) (436 SE2d 14) (1993). We believe the Gore guideposts might also be helpful in determining whether an award of punitive damages is infected by bias or prejudice.

3. The Award of Punitive Damages Against Appellants.

(a) Appellants Abandoned Their Federal Due Process Excessiveness Claim.

In their enumerations of error, appellants failed to assert that the award of punitive damages violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Instead, they simply asserted the award was “excessive.” In two sentences at the very end of their appellate brief, however, appellants noted that “punitive damages also violate [ ] the Due Process Clauses of the Georgia and United States Constitutions,” citing Gore. Appellants did not argue that the award was “grossly excessive”; rather, it alleged the appellees’ injury was “purely economic in nature” and “evinced no indifference to or reckless disregard for the health and safety of others.” Pretermitting whether this adequately enumerated an “excessiveness” claim under the federal due process clause, we considered the claim of error abandoned because appellants failed to cite to any relevant facts, give record citations, or present any legal analysis supporting that assertion. Court of Appeals Rule 27 (c) (2), (3). An assertion of error followed by a case citation is not legal argument. As we have explained, legal analysis “is, at a minimum, a discussion of the appropriate law as applied to the relevant facts.” Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000). Because appellants abandoned any error with respect to a federal constitutional excessiveness claim, we are not required to conduct a de novo review of the punitive damages award or to apply the Gore guideposts. Leatherman, 532 U. S. at 433. Consequently, we reinstate Division (6) (c) of our original opinion, Time Warner, 245 Ga. App. at 356 (6) (c), finding no abuse of discretion in the amount of the punitive damages award under Georgia common law.

(b) We recognize, however, that the Supreme Court of Georgia may choose to apply Leatherman and Gore to all excessive punitive damages claims or to the claim presented in this case. Therefore, as a matter of judicial economy, we also review the punitive damages award de novo and apply the Gore guideposts.

(i) Reprehensibility. We begin our analysis by examining the degree of reprehensibility of appellants’ conduct in this case. In examining the degree of reprehensibility of a defendant’s conduct, the Supreme Court in Gore outlined a number of “aggravating factors,” including whether the harm was more than “purely economic in nature,” and whether the defendant’s behavior “evinced indifference to or reckless disregard for the health and safety of others.” Gore, 517 U. S. at 576. Here, although the harm to Flags and Fund was primarily economic, it was caused by conduct we find especially reprehensible. Appellants’ intentional breach of their fiduciary duty revealed a callous indifference to the financial well-being of their limited partners and their individual investors.

After closely scrutinizing over 80 volumes of record and transcript during the first appeal, we found that the evidence adduced supported the jury’s conclusion that appellants acted in concert to breach SFOG’s fiduciary duty to its business partners. Six and a half pages of our published opinion are dedicated to describing appellants’ scheme to devalue their partners’ investment for their own benefit. Time Warner, 245 Ga. App. at 335-341. We found this evidence clearly and convincingly supported an award of punitive damages under OCGA § 51-12-5.1 (b) because the evidence showed that “the appellants withheld vital business information from Fund and Flags, undertook to compete with them, took money belonging to them, and carried out a plan to depress the value of their investment, the Six Flags Over Georgia park.” Id. at 356 (6) (a). Moreover, the jury found a specific intent to cause harm, id. at 334-335, n. 3, 356 (6) (b), which allowed it to award damages in excess of the $250,000 cap. OCGA § 51-12-5.1 (f), (g).

Appellants’ conduct toward its partners and those who invested in the limited partnership was part of a premeditated plan surreptitiously executed over a period of years. Appellants’ conduct was deceitful, self-serving, and financially damaging. More importantly, however, appellants’ conduct was a breach of fiduciary duty, a violation of a confidential relationship of trust requiring the utmost in good faith. Even though Flags and Fund were, as appellants asserted at oral argument, controlled by “sophisticated business people,” they were nevertheless entitled to rely on their general partner. Appellants? conduct was, in short, the kind of behavior we find “deserving of reproof, rebuke, or censure; blameworthy” — the very definition of “reprehensible.” Random House Webster’s Unabridged Dictionary (2nd ed.), p. 1634. A California court, which recently considered a comparable issue upon remand under Leatherman, held: “Trickery and deceit are reprehensible wrongs, especially when done intentionally through affirmative acts of misconduct.” (Citation and punctuation omitted.) Simon v. San Paolo U.S. Holding Co., 2001 Cal. App. LEXIS 2023. We agree.

(ii) Ratio. In Gore, although the U. S. Supreme Court held that the ratio of compensatory to punitive damages is a factor to consider in determining whether the punitive damages award is excessive, it refused to draw a bright line. The court explained that “[w]e need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that a general concern of reasonableness properly enters into the constitutional calculus.” (Citations and punctuation omitted.) Gore, 517 U. S. at 582-583 (III). It is not enough, as some have suggested, “to do the math”; we must also do the reasoning.

In this case, the ratio of compensatory to punitive damages is 1 to 1.3. We see no “shocking disparity” inherent in this figure. Cf. Gore, 517 U. S. at 581, n. 34, 582-583 (1:500 ratio reversed). Nor does it appear to approach that fuzzy line suggesting the bounds of “constitutional impropriety.” Id. at 581, citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 21 (111 SC 1032, 113 LE2d 1) (1991) (1:4 ratio upheld); TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 451, 462 (III) (113 SC 2711, 125 LE2d 366) (1993) (1:10 ratio upheld). More importantly, however, given the amount of intentional economic damage inflicted by the appellants, corporate entities with collective assets measured in billions of dollars, we believe the award of punitive damages was reasonably calculated to punish them and to deter such conduct in the future. See Simon v. San Paolo U.S. Holding Co., supra, 2001 Cal. App. LEXIS at 2040-2043.

(iii) Sanctions for Comparable Misconduct. Georgia law authorizes double and treble damages for a variety of unfair and deceptive business practices, certain securities violations, and generally corrupt corporate behavior. Statutory multiple damages awards are intended to deter those who might engage in deceptive practices when the risk of getting caught would otherwise be an acceptable cost of doing business. See, e.g., Zeeman v. Black, 156 Ga. App. 82 (273 SE2d 910) (1980) (private right of action under OCGA § 10-1-399 furthers policy of protecting the citizenry from unfair business practices). The award of punitive damages in this case is well within the range of comparable multiple damages penalties for dishonest business conduct. The award speaks to deterrence and appears in all respects reasonably calculated to further that end. Given existing Georgia statutes for comparable corporate misbehavior, appellants received fair notice not only of the kind of conduct that would subject them to punishment, but also of the severity of the penalty that might be imposed. Cf. Gore, 517 U. S. at 585.

Applying a de novo standard of review and weighing the Gore guideposts, we find that the award of punitive damages under these circumstances does not violate appellants’ federal due process rights.

Decided March 29, 2002

Chandler & Britt, Walter M. Britt, Alston & Bird, Ronald L. Reid, Troutman Sanders, John J. Dalton, for appellants.

Butler, Wooten, Fryhofer, Daughtery & Sullivan, James E. Butler, Jr., George W. Fryhofer III, Joel O. Wooten, Jr., Bondurant, Mix-son & Elmore, H. Lamar Mixson, Michael B. Terry, Joshua F. Thorpe, Davidson & Tucker, Gerald Davidson, Jr., for appellees.

Judgment affirmed and reinstated on remand.

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

       This appeal is from a jury verdict in favor of a limited partnership and its sole limited partner against the general partner which from 1991 through 1998 operated the partnership’s business investment, the Six Flags Over Georgia theme park. Appellee [Flags] is the limited partnership which owns the park. Appellee [Fund] is the partnership’s sole limited partner and is comprised of individual investors. Although appellant Six Flags Over Georgia, Inc. (“SFOG”) was the named general partner corporate entity responsible for operating the park, appellees alleged that Time Warner Entertainment Company, L.P. (“TWE”), acting through and in concert with its subsidiaries SFOG, Six Flags Entertainment Corporation (“SFEC”), and Six Flags Theme Parks, Inc. (“SFTP”), assumed the role of general partner and directed the activities of the partnership. The complaint alleged, in essence, that the general partner damaged the appellees by preferring its own financial interest over that of the partnership and of the limited partner. The jury returned a verdict in favor of the appellees, awarding a total of $197,296,000 in compensatory damages and $257,000,000 in punitive damages.
      (Footnotes omitted.) Time Warner, 245 Ga. App. at 334.

       “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” (Emphasis supplied.) U. S. Const., Amend. VII.

       Whether the jury’s award of punitive damages is really the result of a factual inquiry is a subject of some dispute. Certainly, as Justice Ginsburg points out in her dissent, punitive damages “derive their meaning from a set of underlying facts as determined by a jury.” Leatherman, 532 U. S. at 446 (Ginsburg, J., dissenting). Nevertheless, what a jury does with those facts is a kind of case-by-case policymaking that involves consideration of broader issues, like deterrence and retribution. See Murphy, 76 Wash. L. Rev. at 1011-1012, supra.

       These guideposts are: (1) the degree or reprehensibility of the defendant’s misconduct, (2) the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Leatherman, 532 U. S. at 440.

       “The concept of proportionality as a legal limitation on the amount of punitive damages applies, in Georgia, only when damages are given to compensate for wounded feelings.” (Emphasis in original.) Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. at 762 (2). See OCGA § 51-12-5.

       However, we note that many scholars have found Gore as imperfect an attempt to evaluate punitive damages awards as those fashioned by state courts. See Developments in the Law, 113 Harv. L. Rev. 1783, 1792-1795 (2000). For example, the Gore guideposts combine a number of variables that are not specifically weighted. Consequently, these “variables make it difficult for a court to find precedential value in a prior decision, because it is nearly impossible to determine how an earlier court valued any one of them.” (Footnote omitted.) Leading Case, 115 Harv. L. Rev. 356, 362 (2001).

       The issue was raised in the trial court in appellants’ amended motion for judgment notwithstanding the verdict or, in the alternative, new trial.

       We also find that appellants abandoned any claim of error under the due process clause of the Georgia Constitution. Had that claim been preserved, however, our analysis would be quite similar to that applied to common law excessiveness claims. See Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. at 763-766 (5); 261 Ga. at 615-617 (2).

       Appellants suggested that because the award of punitive damages in this case is currently the largest in Georgia history, that it is excessive. An award of punitive damages, however, should not be viewed in the abstract or compared with awards from other cases. The punitive damages award must be viewed in its unique context, in light of the facts of the case and with reference to the actual damages awarded and the potential harm that could have resulted from the defendant’s conduct. See Gore, 517 U. S. at 580-583.

       See, e.g., OCGA §§ 10-1-399 (c) (Fair Business Practices Act; treble damages for intentional violations); 16-14-6 (c) (RICO; treble damages for injury under section); 10-1-763 (b) (double damages for wilful misappropriation of trade secrets); 10-5-14 (h) (2) (treble damages for certain securities violations).


author: Ruffin, Judge.

text:
    A00A1895.
    CHANEY et al. v. BURDETT et al.
    (562 SE2d 853)
    Decided March 29, 2002.

      James C. Gaulden, Jr., for appellants.

      Perrie, Buker, Jones & Morton, J. William Haley, for appellees.
   Ruffin, Judge.

The Supreme Court, in Chaney v. Burdett, reversed the judgment of this Court in Chaney v. Burdett. Accordingly, our judgment in that case is hereby vacated, and the opinion of the Supreme Court is substituted therefor, which requires that the order of the trial court be reversed.

Judgment reversed.

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

       274 Ga. 805 (560 SE2d 21) (2002).

       248 Ga. App. 668 (548 SE2d 407) (2001).


author: Eldridge, Judge.

text:
    A00A2566.
    FEW v. CAPITOL MATERIALS, INC.
    (562 SE2d 853)
   Eldridge, Judge.

In Few v. Capitol Materials, 247 Ga. App. 93 (543 SE2d 102) (2000), we affirmed the trial court’s grant of summary judgment to Capitol. The Supreme Court granted certiorari and, in Few v. Capitol Materials, 274 Ga. 784 (559 SE2d 429) (2002), reversed this Court’s judgment. Our judgment in this case is therefore vacated, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s judgment is reversed.

Decided March 29,2002.

King & Croft, Terrence L. Croft, for appellant.

Rachelson & White, Ira L. Rachelson, for appellee.

Judgment reversed.

Blackburn, C. J., and Barnes, J., concur.


author: Barnes, Judge.

text:
    A01A1650.
    WITHERSPOON v. ARANAS et al.
    (562 SE2d 853)
   Barnes, Judge.

In this medical malpractice action, Sheron Witherspoon appeals from the trial court’s order granting a motion to dismiss all of her claims against Dr. Catalina Aranas and all but one of her claims against Dr. Richard Bloom. In her appeal, Witherspoon asserts that the trial court erred in relying upon either OCGA § 9-11-9.1 or the statute of limitation to dismiss her claims. For the reasons stated below, we affirm in part and reverse in part.

The record shows that Witherspoon filed, her first complaint alleging medical malpractice by the defendants on March 8, 2000. In her complaint, she alleged that Dr. Aranas violated the standard of care by failing to completely remove her ovaries in a surgery performed in November 1997. She alleged that Dr. Bloom violated the standard of care by failing to remove her remaining ovary in a surgery performed on January 22, 1999. Plaintiff did not attach an expert affidavit to her complaint and did not allege that she believed in good faith that the statute of limitation would expire in ten days and that an expert affidavit could not be obtained due to time constraints.

Thirty-four days later, on April 11, 2000, plaintiff filed an amendment to her complaint stating: “Plaintiff shows that the Affidavit required by OCGA § 9-11-9.1 was not filed with her Complaint because she believed in good faith that the period of limitation would expire within 10 days and the Affidavit by an expert could not be prepared because of such time constraints.”

On April 19, 2000, the defendant doctors filed, contemporaneous with their answer, a motion to dismiss based upon OCGA § 9-11-9.1.

On April 21, 2000, 44 days after filing her complaint, plaintiff supplemented her complaint with an expert affidavit. This expert opined that Dr. Aranas violated the standard of care during the November 5, 1997 surgery and that Dr. Bloom violated the standard of care during the January 22, 1999 surgery by failing to remove the plaintiff’s ovary.

On May 22, 2000, plaintiff voluntarily dismissed her complaint before a hearing was held on the defendants’ motion to dismiss. She refiled her complaint exactly six months later, on November 22, 2000, and asserted the following causes of action: breach of express medical agreement by Dr. Aranas; professional medical negligence by both defendant doctors; lack of informed consent against Dr. Aranas; battery by Dr. Aranas; and fraudulent misrepresentation against both defendants for failing to disclose that, an ovary remained in her abdomen after their surgeries. Plaintiff attached to her complaint a copy of the expert affidavit she filed in her first complaint.

In her complaint, plaintiff alleged that Dr. Aranas operated on her in November 1997 to remove her ovaries. She began experiencing excruciating pelvic pain beginning in February 1998 and returned to Dr. Aranas on a weekly basis. Dr. Aranas “repeatedly advised [plaintiff] that absolutely all of her reproductive organs had been removed [and] that there was no Endometriosis condition that could cause pain.” Dr. Aranas told the plaintiff “that the pain she was experiencing was ‘probably’ due to scar tissue arising from the surgery” and that she needed to learn to manage her pain. In March 1998, plaintiff went to the emergency room, and emergency surgery was performed to remove a large hematoma from her abdomen. When her pelvic pain returned, plaintiff consulted with Dr. Bloom who found another pelvic mass in the plaintiff’s abdomen and performed surgery on January 22, 1999. According to plaintiff’s second complaint, she did not learn that one of her ovaries might not have been completely removed until September 1999, when an ultrasound technician informed her that one of her ovaries might still be present. Although her treating doctor at that time told her the technician was incorrect, plaintiff consulted with another doctor who performed another surgery in December 1999. This doctor, who also provided the plaintiff with the expert affidavit attached to the complaint, discovered that a functioning ovary remained in the plaintiff’s abdomen.

Defendants filed another motion to dismiss contemporaneously with their answer, asserting that (1) the medical malpractice claims were not subject to the renewal provisions of OCGA § 9-2-61; (2) the affidavit filed with the renewed complaint was deficient; and (3) all of the plaintiff’s claims against Dr. Aranas were barred by the statute of limitation. The trial court granted the defendants’ motion to dismiss all of the plaintiff’s claims against Dr. Aranas. It also dismissed the professional medical malpractice claims against Dr. Bloom. Thus, the only claim remaining below is the plaintiff’s claim for fraudulent misrepresentation against Dr. Bloom.

1. OCGA § 9-11-9.1 provides, in pertinent part:

(a) In any action for damages alleging professional malpractice against a professional . . . , the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify. . . . (b) The contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in the complaint within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires. If an affidavit is not filed within the period specified in this subsection or as extended by the trial court and the defendant against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim. . . . (e) If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.

In this case, the record shows that Witherspoon failed to file an expert affidavit with her original complaint as required by OCGA § 9-11-9.1 (a) and also failed to allege in her original complaint that an affidavit could not be prepared because of statute of limitation time constraints as outlined in OCGA § 9-11-9.1 (b). She did, however, amend her complaint to make this statement and also supplemented her complaint with an expert affidavit before the 45-day period to supplement the complaint with an expert affidavit expired.

The defendants assert that Witherspoon was not entitled to the 45-day extension to file an affidavit provided by subsection (b) because the statute of limitation had already expired with regard to Dr. Aranas and was nowhere close to expiring with regard to Dr. Bloom. Thus, Witherspoon cannot show that “the period of limitation [would] expire or there [was] a good faith basis to believe it [would] expire on any claim stated in the complaint within ten days of the date of filing.” OCGA § 9-11-9.1 (b). We agree.

Plaintiff filed her original complaint on March 8, 2000. Dr. Aranas performed surgery on her on November 5, 1997, and Dr. Bloom performed surgery on the plaintiff on January 22, 1999. The allegations in her complaint go to the failure to remove the ovary during these surgeries, and in the affidavit attached to her amended complaint, her expert opined that this was the only manner in which the defendants violated the standard of care.

In the portion of her brief addressing whether the statute of limitation bars her claims, Witherspoon asserts that it began to run on September 21, 1999, when she first learned that a functioning ovary might remain in her abdomen. Thus, she could not have “believed in good faith that the period of limitation would expire within 10 days” as she alleged in the amendment to her original complaint. “[A] plaintiff is not entitled to invoke the 45-day provisions of OCGA § 9-11-9.1 (b) when the applicable statute of limitation would not expire within ten days of the date of the filing of the complaint.” Keefe v. Northside Hosp., 219 Ga. App. 875, 876 (467 SE2d 9) (1996). Nowhere in her briefs before this court does Witherspoon demonstrate how the statute of limitation would have actually expired or the basis for her “good faith” belief that it would expire within ten days of the date her original complaint was filed. Thus, the extension provided by OCGA § 9-11-9.1 (b) does not apply in this case.

2. Having determined that Witherspoon is not entitled to the extension, we must now determine the effect of her failure to comply with the affidavit requirement on her renewal action.

Witherspoon relies on our Supreme Court’s decision in Patterson v. Douglas Women’s Center, 258 Ga. 803 (374 SE2d 737) (1989), for the proposition that a plaintiff can renew a professional negligence complaint after the expiration of the statute of limitation despite a failure to attach the expert affidavit required by OCGA § 9-11-9.1, because a dismissal under OCGA § 9-11-9.1 does not render the original complaint void ab initio (the moment it was filed). While this accurately summarizes our Supreme Court’s holding in Patterson, “[w]ithin months of [this] decision, the General Assembly added subsection [(e)] to OCGA § 9-11-9.1 to carve out an exception to Patterson” Sawyer v. DeKalb Med. Center, 234 Ga. App. 54, 55 (1) (506 SE2d 197) (1998). Thus, Patterson no longer controls our analysis.

Since the General Assembly’s addition of subsection (e), we have consistently held that a plaintiff’s failure to comply with the requirements of OCGA § 9-11-9.1 (a) or (b) forecloses the plaintiff from later using the renewal provisions of OCGA § 9-2-61 after the statute of limitation expired. Grier-Baxter v. Sibley, 247 Ga. App. 560, 562 (2) (545 SE2d 5) (2001); Trucano v. Rosenberg, 215 Ga. App. 153, 154 (450 SE2d 216) (1994). If the statute of limitation has not expired at the time the renewal complaint is filed, however, a plaintiff’s renewal action will not be barred based on a previous failure to comply with the affidavit requirements of OCGA § 9-11-9.1. Moritz v. Orkin Exterminating Co., 215 Ga. App. 255, 256-257 (450 SE2d 233) (1994). Thus, we must determine whether the limitation period had expired on November 22, 2000, the date Witherspoon filed her renewal complaint.

Witherspoon asserted the following causes of action in her renewal complaint: breach of express medical agreement by Dr. Aranas for failing to remove all of her ovaries as agreed; professional medical negligence against both defendant doctors for failing to remove the ovary during their respective surgeries; lack of informed consent against Dr. Aranas for failing to obtain her permission to leave an ovary in her abdomen after the surgery; battery by Dr. Aranas for performing a different procedure from the one she consented to by leaving the ovary in her; and fraudulent misrepresentation against both defendants for failing to disclose that an ovary remained after their surgeries. All of these causes of action are subject to a two-year limitation period because “the medical malpractice statute of limitation applies to both tort and contract theories of liability when the claim ‘calls into question the conduct of a professional in his area of expertise.’ ” (Citation omitted.) Robinson v. Williamson, 245 Ga. App. 17, 19 (1) (537 SE2d 159) (2000). See also OCGA § 9-3-71 (a).

(a) With regard to Dr. Bloom, who performed surgery on the plaintiff on January 22, 1999, the two-year statute of limitation clearly had not expired by the time the plaintiff filed her renewal complaint on November 22, 2000. Thus, the trial court erred by granting any portion of Dr. Bloom’s motion to dismiss. See Moritz, supra, 215 Ga. App. at 256-257.

(b) With regard to Dr. Aranas, the record shows that he performed the surgery at issue in November 1997, over two years before the renewal complaint was filed. The plaintiff alleges that during February and March 1998 she experienced excruciating pain in her pelvic region, told Dr. Aranas about this pain, and was told by him that all of her reproductive organs had been removed and that her pain was probably caused by scar tissue. According to the complaint, Dr. Aranas’ last contact with the plaintiff was on March 16, 1998, after which time she sought treatment with other doctors.

Decided March 29, 2002.

Calvin A. Rouse, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Gregory S. Ellington, Robert C. Martin, Jr., for appellees.

In medical malpractice actions, the statute of limitation begins running when the injury occurs rather than on the date of the negligent act. Jones v. Lamon, 206 Ga. App. 842, 845 (1) (426 SE2d 657) (1992). In most medical malpractice actions, the injury “occurs” when its symptoms manifest themselves to the patient, and this rule applies even if the patient is not aware of either the cause of the pain or of the connection between the symptoms and the negligent act or omission. Walker v. Melton, 227 Ga. App. 149, 150 (1) (b) (489 SE2d 63) (1997); Henry v. Med. Center, 216 Ga. App. 893, 894 (2) (456 SE2d 216) (1995); Bryant v. Crider, 209 Ga. App. 623, 626 (3) (434 SE2d 161) (1993). Under this analysis, the statute of limitation would have expired in February 2000, two years after the plaintiff began experiencing pain after the surgery.

Finally, the plaintiff presented no evidence of fraud that would toll the statute of limitation.

The statute of limitation is tolled under OCGA § 9-3-96 for fraudulent concealment only if a plaintiff is debarred or deterred from bringing an action by fraud on the part of a defendant. Once a plaintiff seeks the diagnosis or care of another doctor, she is no longer deterred from learning the true facts by any conduct of a defendant “even if the other doctor consulted does not diagnose the medical problem as arising from the defendant’s improper treatment.”

(Citation omitted.) Bryant, supra, 209 Ga. App. at 627. In this case, Witherspoon sought treatment from other doctors over two years before she filed her renewal complaint.

Because the statute of limitation had already expired on Wither-spoon’s claims against Dr. Aranas when she filed her renewal complaint and she failed to comply with OCGA § 9-11-9.1 when she filed her original complaint, the trial court properly dismissed all of her claims against Dr. Aranas.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Phipps, J., concur.

       Plaintiff’s claim for fraudulent misrepresentation against Dr. Bloom remains pending below.


author: Blackburn, Chief Judge. Miller, Judge,

text:
    A01A1841.
    REDI-FLOORS, INC. v. SONENBERG COMPANY.
    (563 SE2d 505)
   Blackburn, Chief Judge.

The Sonenberg Company, which managed certain apartment complexes, ordered carpet to be installed by Redi-Floors, Inc. As a result of the transaction, Redi-Floors did not receive full payment and sued both Sonenberg and the apartment complex owner. The trial court granted Sonenberg a directed verdict on motion, and following the trial the jury found against the owner, resulting in a judgment against the owner. Redi-Floors has now appealed the directed verdict in favor of Sonenberg. For the reasons set forth below, the trial court erred in entering a directed verdict in favor of Sonenberg, and this case must be remanded to the trial court so that Redi-Floors may be allowed to make an election as to which defendant it wishes to proceed against.

On appeal of a directed verdict against a plaintiff, we construe the evidence most favorably to the plaintiff in assessing whether any evidence could have supported a verdict in favor of the plaintiff. Nunley v. Nunley. So construed, the evidence showed that Sonen-berg managed Westchester Manor Apartments through its on-site property manager, Judith. Manor Associates Limited Partnership, whose general partner is Westchester Manor, Ltd., owned the complex. The entry sign to the property did not reveal the owner’s name but did disclose that Sonenberg managed the property.

Judith contacted Redi-Floors and requested a proposal for installing carpet in several of the units. In preparing the proposal, Redi-Floors confirmed that Sonenberg was the managing company and that Judith was its on-site property manager. Judith and her assistant orally ordered the carpet as per the proposal, and Redi-Floors installed the carpet accordingly. Redi-Floors sent invoices to the complex and received checks from “Westchester Manor Apartments.” Believing Sonenberg owned the complex, Redi-Floors did not learn of the true owner’s identity until a dispute arose (after the work was complete) concerning the payment of some of its later invoices.

To recover on the outstanding invoices, Redi-Floors sued Sonen-berg, Manor Associates Limited Partnership, and Westchester Manor, Ltd. At trial Sonenberg admitted that it had no evidence that it informed Redi-Floors of the owner’s identity. Nevertheless, the court directed a verdict in Sonenberg’s favor on the ground that evidence showed that Redi-Floors was aware that Sonenberg was only acting as agent. The case then continued, resulting in a verdict exceeding $20,000 in favor of Redi-Floors and against the owner and its general partner. Judgment was entered accordingly. Redi-Floors appeals, contending that the directed verdict was error.

1. An agent who makes a contract without identifying his principal becomes personally liable on the contract. Wojcik v. Lewis; see Chambliss v. Hall; see generally OCGA § 10-6-54. If the agent wishes to avoid personal liability, “the duty is on him to disclose his agency, and not on the party with whom he deals to discover it.” (Punctuation omitted.) Wojcik, supra, 204 Ga. App. at 304 (2), quoting Whitlock v. PKW Supply Co.; accord Brown-Wright Hotel Supply Corp. v. Bagen. The agent’s disclosure of a trade name and the plaintiff’s awareness of that name are not necessarily sufficient so as to protect the agent from liability. Wojcik, supra, 204 Ga. App. at 304 (2); Crolley v. Haygood Contracting “The disclosure of an agency is not complete for the purpose of relieving the agent from personal liability unless it embraces the name of the principal.” (Citations and punctuation omitted.) Hunter Turnkey, Inc. v. Pilot Property Co. This is generally a question for the jury. Whitlock, supra, 154 Ga. App. at 574 (1); Bagen, supra, 112 Ga. App. at 303; see generally OCGA § 10-6-87.

Based on these principles, Reed v. Burns Intl. Security Svc. upheld a judgment in favor of a security company and against the apartment management company that contracted for security services at the apartment complex but failed to identify to the security company the name of the limited partnership owning the complex. Hunter Turnkey, Inc., supra, 210 Ga. App. at 366, even reversed a bench trial judgment that had ruled in favor of the apartment complex management company where no evidence showed that the management company had disclosed the name of the principal/owner to the contracting plaintiff. Here, at least some evidence showed that Sonenberg never disclosed the name of Manor Associates Limited Partnership to Redi-Floors. Accordingly, the trial court erred in entering a directed verdict in favor of Sonenberg.

2. Contrary to the dissent, this error by the trial court is not harmless, and it requires us to remand this case to enable Redi-Floors to elect which defendant it wishes to pursue. Georgia case law makes clear that Redi-Floor’s obtaining of a judgment against Manor Associates, after the trial court removed Sonenberg as a party against which Redi-Floor could elect to secure a judgment, did not constitute an election on Redi-Floor’s part. In Spalding Ford Lincoln-Mercury v. Turner Broadcasting Systems, a broadcasting company sued an automobile dealership and its advertising agency. The automobile dealership filed a motion for directed verdict, which the trial court denied.

On appeal, the dealership contended that the trial court had erred in denying the motion for directed verdict, arguing that because the broadcaster had obtained a default judgment against the advertising agency, it had made an election to proceed against the advertising agency, as agent, and was thus barred from pursuing the dealership. This Court held that: “Merely obtaining a default judgment against one party does not constitute an election. In sum, there is simply no evidence to support [the dealership’s] contention that [the broadcaster] elected to proceed exclusively against [the advertising agent].” Spalding Ford, supra, 202 Ga. App. at 507 (2). In this case Redi-Floors proceeded against both Manor Associates and Son-enberg and made no election.

With respect to an undisclosed principal, the rule in Georgia is that if the buyer “is in fact merely an agent and acts with the authority of an undisclosed principal, either he or such principal may be held liable at the election of the opposite party; but the contractual liability of such agent and principal is not joint, and, after an election to proceed against one, the other cannot be held. [Cits.]” Willingham, Wright &c. v. Glover” Thus,

[i]f an agent buy[s] in his own name, without disclosing his principal, and the seller subsequently discover [s] that the purchase was, in fact, made for another, he may, at his choice, look for payment either to the agent or the principal. . . . On the other hand, if, at the time of the sale, the seller knows not only the person, who is nominally dealing with him, is not principal, but agent, and also knows who the principal really is, and notwithstanding all the knowledge, chooses to make the agent his debtor — dealing with him and him alone — the seller must be taken to have abandoned his recourse against the principal, and cannot after-wards, upon the failure of the agent, turn round and charge the principal, having once made his election at the time when he had the power of choosing between the one and the other. An election deliberately made, with knowledge of facts and absence of fraud, is conclusive; and the party who has once elected, can claim no right to make a second choice.

(Citations omitted; emphasis supplied.) Wylly v. S. Z. Collins & Co. Thus, while it is true that a judgment against both the agent and the principal cannot stand, it is the plaintiff who is entitled to elect against which of the defendants, principal or agent, to take the judgment. The erroneous direction of a verdict to one of the defendants does not constitute an election by the plaintiff. A different result would obtain, had the direction of the verdict been proper. See also Watson v. Sierra Contracting Corp. (“[a]ppellant, having failed to disclose the identity of her principal throughout the transaction, may be liable instead of the principal at the election of the party vested with the cause of action”) (emphasis supplied). Here, Manor Associates became the sole remaining defendant by operation of law rather than the election of the plaintiff.

In Crolley, supra, 201 Ga. App. at 700, partial summary judgment was erroneously entered against both the principal and the agent. This Court agreed that the entry of judgment against both the agent and the principal was impermissible. Therefore, this Court “vacate [d] the judgment with direction that the trial court enter partial summary judgment against one of the appellants at the election of appellee” (Emphasis supplied.) Id. at 703. This Court has held that it is the plaintiff who must elect which defendant is to be dismissed and against which defendant the judgment would be entered. In the present case the trial court’s erroneous granting of a directed verdict deprived the plaintiff of its right to elect which defendant it would proceed against. This Court should vacate the judgment and remand the case to the trial court where Redi-Floors must make an election as to which defendant it will proceed against. Redi-Floors can obtain a judgment against only one of the defendants. If it elects to proceed against Sonenberg, a new trial will be necessary, but not if it elects to enforce its judgment against Manor Associates.

The dissent here, in expressing its desire to overrule Campbell v. Alford, distinguishes between cases involving alternative liability and cases involving joint liability and points out that OCGA § 9-2-4, which allows a plaintiff to “pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them,” does not apply to allow judgments against both the principal and the agent. The dissent recites the Georgia rule which is based on the tenet that the liability of principal and agent is not joint, that an election to proceed to judgment against one bars action against the other, regardless of whether the judgment is ever satisfied. This is a much criticized rule.

A significant number of other jurisdictions and commentaries, including the Reporter of the Restatement (Second) of Agency, find these distinctions illogical and the rule itself harsh and inherently inconsistent. Many jurisdictions either have fashioned remedies which ameliorate the often harsh results of the rule or have urged complete abandonment of the rule in favor of a “satisfaction rule” imposing joint and several liability on both principal and agent.

The Crolley rationale was applied by the Texas appeals court in Med. Personnel Pool of Dallas v. Seale. In that appeal, on a motion for reconsideration, the agent argued that the appeals court had erred in allowing the plaintiff to elect to proceed against her because the plaintiff had already made an election by accepting judgment against the principal. The appeals court disagreed:

Although plaintiff sought judgment jointly and severally against both defendants, which we determined in our former opinion it was not entitled to have, the trial court refused to require plaintiff to make an election. Instead, the trial court in effect made the election by granting [the agent’s] motion for judgment n.o.v. and granting plaintiff judgment only against [the principal]. An election by a party contemplates a freedom by that party to choose which defendant against whom it desires judgment. We hold, therefore, that plaintiff made no election in the trial court by accepting judgment against [the principal] when it was denied judgment against [the agent].

Id. at 215.

In Ore Steamship Corp. v. D/S A/S Hassel, the court, considering the “elusive agency doctrine of election,” wrote: “This harsh doctrine, resting at most on a rather barren logic, appears to be giving way to the more equitable view that, in the absence of some estoppel, there is no election until a judgment is actually satisfied.” Writing in dissent in Johnson & Higgins v. Charles F. Garrigues Co., Judge Hand said, “[T]he doctrine of election ought only to apply to a case where there has been both judgment and satisfaction, and . . . anything less than a complete satisfaction or an estoppel in pais affords no logical basis for barring a remedy against both agent and undisclosed principal.”

Some courts make it the responsibility of the defendants to demand by motion or other appropriate pleading that the plaintiff make an election; if the defendants fail to demand or move for that remedy, the duty of the plaintiff to elect is waived and the liability is joint and several. The reasoning for this requirement was set forth in Klinger v. Modesto Fruit Co. wherein the court explained:

It is illogical and unjust to require a creditor on his own initiative and without a demand or motion to make an election as to whether he will seek to hold an agent or his principal liable upon an obligation. This would require him to speculate upon the decision of the court regarding the relationship of the principal and agent. An election before the rendition of judgment might not accord with the court’s view of the relationship as disclosed by the evidence. A premature choice might result in an erroneous selection and a total loss of a valid claim. Conflicting evidence regarding the liability of the agent or his principal would require the affirmance of a judgment at variance with the election. The uncertainty and injustice of an erroneous election [are] apparent. The law will not require a litigant to gamble on his remedy. It would seem to be a wiser and better rule of procedure, where there is an issue or a doubt as to the relationship of a principal and agent, to require a motion for election to be made, and even then to hold the motion under advisement until the liability and relationship of the respective parties [have] been determined; and then render judgment accordingly. If both are found to be liable because of the relationship of agent and undisclosed principal, then the court should direct an election to be made and enter judgment accordingly. If the demand for an election is not raised by demurrer or motion during the process of the trial by the party for whose benefit this doctrine is intended, it should be deemed to have been waived.

Id. at 129-130.

The Alabama Court of Civil Appeals has also placed the responsibility to demand an election on defendants. In Davis v. Childers, the court stated:

After agency is established, either by admission or by the evidence, plaintiff may be required prior to judgment to elect whether to hold liable the agent or the principal. Though the right of election belongs to the plaintiff, it operates in favor of the defendants. It therefore should be their responsibility to demand it by motion or some appropriate pleading. We hold that if such demand to elect is not made and plaintiff does not of his own accord elect before entry of judgment, it may be considered waived, though we do not say it would come too late if presented by timely motion for new trial.

Id. The court held that because the defendant had not moved for an election, he had waived the requirement of an election of judgment by the plaintiff, but that the joint judgment would support only one recovery. Id. Other courts have also imposed joint liability where the defendant failed to demand an election, allowing, of course, only one recovery. See, e.g., Amortibanc Investment Co. v. Rampart Associated Mgmt.; Thate v. Texas &c. R. Co.; Hoyt v. Horst.

Other courts have adopted a “satisfaction rule.” Among these courts is the Maryland Court of Appeals, which set forth its reasons for abandoning the Georgia rule in Grinder v. Bryans Road Bldg. &c. Co. The Grinder court points out that the rule, i.e., that the liabilities of an undisclosed principal and an agent are alternative rather than joint and thus require a third party to make an election as to which to hold liable, was adopted as § 210, Restatement (Second) of Agency, apparently for the sole reason that it has been the rule followed by most courts. But those who adopted the majority rule found it inconsistent and actually favored the minority rule. Professor Sea-vey, the Restatement Reporter, wrote:

The majority of cases is in accordance with the rule as stated in this Section. The minority view is that a judgment against the agent, although with knowledge of the principal’s identity, should not discharge the principal from liability. The Reporter, his Advis[o]rs, and some members of the Council, believe that the minority is correct, and should be recognized as law because more consistent, more just and more desirable from a business standpoint, if the state of the authorities permits. The undisclosed principal is made liable originally upon the transaction, because he initiated it; because he profits by it; because it is his business, conducted under his control. Policy requiring that he be liable, he should be discharged only if the debt is paid. . . . The American courts almost universally hold that getting a judgment against the agent before knowledge of the principal does not destroy the liability of the principal. From this it clearly appears that the third person has two distinct causes of action, both arising from the failure to perform the obligations of the contract. In other similar situations, as in the case of tort feasors, or persons severally liable upon a contract, judgment against one has no effect. Many of the American courts, however, have expressed a theory of “election” in the undisclosed principal cases, holding that if the other party elects, with knowledge of the facts, to hold the agent, he cannot afterwards hold the principal. This is contradictory to the idea that there are two distinct causes of action, unless it is assumed that the two causes of action are mutually inconsistent. The two causes of action are not inconsistent, since the agent is liable because he made the contract, while the principal is liable because he caused it to be made.

Grinder, supra, 290 Md. at 699-701, quoting Temporary Draft No. 4 of March 29, to § 435 of the Restatement of Agency. “[T]he above inconsistency and treatment appear [ ] to have no real basis. In fact, the authors of the Restatement recognized the inconsistency and state that the rule regarding undisclosed principals ‘appears to be inconsistent with the basic reason underlying the liability of the undisclosed principal.’ [Cit.]” Dimension Graphics v. Liebowitz & Jacobson.

Another vocal critic of the majority rule was Merton Ferson, Dean Emeritus of the University of Connecticut College of Law. We quote his forceful reasoning, as did the Grinder court, at some length:

[T]he third party can hold an undisclosed principal; he can also hold the agent; and, yet, he is entitled to only one performance. What is the theory of the situation? It seems clear that when the agent of an undisclosed principal makes a contractual promise to a third person the result is not one obligation. It is two obligations. The agent is bound because he makes a contract that in terms is binding on him. The principal is bound, owing to a different set of facts, viz. he assented — i.e., offered to be bound if and when the agent should make such a contract. The condition is met when the agent makes his contract. The principal and agent each consented to assume, and thus created, his own obligation. The obligations are not of identical origin, and they bind different obligors even though each obligation would be broken or satisfied according to whether the obligee gets what is coming to him. ... It should not be necessary to argue at this late date that a principal and his agent are not identical. But it was approved learning in earlier days. . . . Out of the false assumption that only one obligation was created by the agent’s contract, has come a century of confusion and disagreement with regard to the liabilities of principal and agent. When it is recognized that the third person acquires several rights against the principal and agent, there does not seem to be any reason of logic, justice or expediency why he should not have every advantage that accrues to any one else who has more than one right. Specifically his attempt to hold one obligor should not exonerate another obligor. And a merger of his claim against one into a judgment against that one should not take away his right against the other obligor. The several rights of a third person who has contracted with the agent of an undisclosed principal are comparable to the several rights acquired by a “creditor-beneficiary” for whom a contract has been made. In that kind of a case, A promises B that A will pay B’s debt to C. The result is that C gets a right against A, and, of course, retains his right against B. In that situation, it is settled law that C can recover against either A or B. C’s attempt to hold one does not exonerate the other and C’s procurement of a judgment against one does not exonerate the other. C is, of course, entitled to only one payment of what is coming to him and insofar as he has been paid by one obligor it reduces the extent, but does not cut off the existence, of his claim against the other.

Grinder, supra, 290 Md. at 704-706, quoting Merton Ferson, Undisclosed Principals, 22 U. Cin. L. Rev. 131, 142-144 (1953).

The Grinder court attempted to find some logical justification for the majority rule. As set forth above, it could find no basis for the rule in merger analysis since the recognition, that a recovery of judgment against an agent before knowledge of the identity of the principal does not discharge the principal, is inconsistent with the concept that there is only one cause of action which merges into the judgment first obtained. Id. at 458. Nor could the rule be justified based on avoidance of vexatious litigation. The court reasoned that “prevention of vexatious double litigation against the principal as an explanation for the election rule is greatly undercut by modern practice. If the agent is sued first, he may implead the principal as a third party defendant on the indemnification claim. If the parties are sued jointly, the agent may cross-claim for indemnity.” Id. at 459. Finally, the Grinder court found the “one contract-no windfall” rationale inadequate. According to that rationale, a plaintiff has only contracted for one cause of action and he would receive a windfall if allowed causes of action against both the principal and the agent. But, the court objected, a plaintiff does have two distinct causes of action.

The principal is liable because the contract was for his benefit, and the agent is benefited by his being presumedly the creditor, for there can be but one satisfaction. But it does not follow that the agent can afterwards discharge himself by putting the creditor to his election. Being already liable by his contract, he can be discharged only by satisfaction of it, by himself or another. So the principal has no right to compel the creditor to elect his action, or to discharge either himself or his agent, but can defend his agent only by making satisfaction for him.

Id. at 458 (quoting Beymer v. Bonsall).

The Grinder court recognized that “[t]he commentators appear to be nearly unanimous in their support of the minority, i.e., satisfaction, rule.” Id. at 703 (see the list of authorities supporting the “satisfaction rule” cited at 703-704). In light of these considerations, the court concluded that the rule was unsound and “creat[ed] more unjust results and generated] more mischief than would a change in the law to a rule that looks to one satisfaction.” Id. at 707. Accordingly, the court held “that a creditor who contracts with the agent for an undisclosed principal does not obtain alternative liability, that he may proceed to judgment against both, but that he is limited to one satisfaction.” Id. at 707-708.

Other courts have also abandoned the majority rule in favor of a “satisfaction rule” imposing joint and several liability on the principal and the agent. In Engelstad v. Cargill, Inc., the Supreme Court of Minnesota, in adopting the “satisfaction rule,” stated:

We see no reasonable basis for a rule that discharges an otherwise liable principal merely because a judgment has been docketed against the principal’s agent. Election requires knowledge of the defendant’s assets which may not be available to the creditor at the pre-trial stage. Similarly, interlocutory judgments against the agent through default or summary judgment can work an inequitable result if the creditor is left holding one uncollectible judgment while the principal is exonerated. The better rule of law, which we hereby adopt, is that a creditor may proceed to judgment against both a principal and its agent but is limited to satisfaction of one of the two judgments.

(Citation omitted.) Id. at 286; see also Crown Controls v. Smiley; Illinois Controls v. Langham; Joseph Melnick Bldg. &c. Assn. v. Melnick.

However, as the Georgia law is clearly established, it can only be changed by the legislature or the Supreme Court of Georgia. We encourage consideration of such a change.

This case must be remanded to the trial court with instructions to allow Redi-Floors to make an election as to which defendant it wishes to proceed against, thus restoring to Redi-Floors the right to make such election. Should Redi-Floors elect to hold Manor Associates liable, nothing further is required as the existing judgment would stand against this defendant. On the other hand, should Redi-Floors seek to proceed against Sonenberg, the existing judgment is vacated and a new trial will be necessary.

Judgment reversed and case remanded.

Pope, P. J., Johnson, P. J., Smith, P. J., Ruffin, Eldridge, Barnes, Ellington, Phipps and Mikell, JJ., concur. Andrews, P. J., and Miller, J., concur in part and dissent in part.

Miller, Judge,

concurring in part and dissenting in part.

I concur with Division 1 of the majority opinion that the court clearly erred in directing a verdict in favor of the Sonenberg Company. I dissent, however, as to Division 2, because I believe that Redi-Floor’s decision to obtain a judgment against Manor Associates Limited Partnership has rendered the error harmless. Redi-Floors had the right, as do all plaintiffs, to pursue mutually exclusive remedies prior to the verdict; but once Redi-Floors procured a judgment order which was reduced to writing against Manor Associates, that constituted an election of alternative remedies that precluded plaintiff from pursuing the excluded remedy against Sonenberg.

A corollary to the principle that a nondisclosing agent is personally liable is that “[t]he contract liability of a principal and his agent is not joint, and after election to proceed against one, the other cannot be held.” As the plaintiff may not obtain judgment against both, he must make an election prior to judgment as to whether he wants a judgment against the agent or against the principal. If the plaintiff does not expressly announce an election, his taking a judgment against the principal constitutes an election and precludes any further action against the agent. Here, after the court entered a directed verdict in favor of Sonenberg, Redi-Floors (1) had every opportunity to reevaluate its case and to obtain court permission to dismiss its case without prejudice against Manor Associates instead of proceeding further or (2) could have had the court withhold entry of judgment (once the verdict against Manor Associates was obtained) until an appeal of the directed verdict was decided. In either case, Redi-Floors could have then brought this issue here as an appeal from the directed verdict without electing to obtain a judgment against Manor Associates. Redi-Floor’s decision to obtain a judgment against the principal, however, was an election and precludes it from pursuing Sonenberg further.

This does not denigrate or diminish the right of Sonenberg or of any plaintiff to pursue alternative theories or to elect between mutually exclusive remedies, whether against multiple defendants or one defendant. Rather, it simply enforces the time-honored principle under Georgia law that the election — at least as to alternative actions in the principal/agent area of law — must take place prior to judgment being entered against either.

In this regard, I note that Campbell v. Alford indicated that an election is not made until the plaintiff obtains a satisfaction of his judgment against the principal. Campbell relied on two authorities: (1) OCGA § 9-2-4, which allows a plaintiff to pursue any number of consistent or inconsistent remedies against the same person or different persons until obtaining a satisfaction from some of them, and (2) Adams v. Cox, which, citing to this statute and Newby v. Maxwell, held that obtaining a judgment against a corporation did not preclude a plaintiff from pursuing an action against the corporation’s sole shareholder to recover the same damages. Adams, however, expressly distinguished its facts from those cases where the joint contractual liability of both the principal and agent is sought (as here), for in such circumstances binding authority is clear that a monetary judgment may not be obtained against both parties. Thus, the very authority relied on in Campbell acknowledges that OCGA § 9-2-4 does not apply to allow judgments against both the principal and the agent. As more recent controlling authority confirms that a plaintiff may obtain a judgment against either the principal or agent but not both, Redi-Floor’s obtaining the judgment against the principal here constituted a binding election, whether or not the judgment is ever satisfied. Accordingly, I would overrule Division 1 of Campbell.

Decided March 29, 2002

Isenberg & Hewitt, Harriet C. Isenberg, for appellant.

Olim & Loeb, Jay E. Loeb, for appellee.

The majority suggests that Spalding Ford Lincoln-Mercury v. Turner Broadcasting Systems stands for the proposition that obtaining a judgment against an agent does not necessarily constitute an election to proceed against the agent instead of against the principal. I respectfully disagree. Spalding Ford did not involve the circumstance of electing between alternative remedies as we have here today, but rather involved a written contract in which the principal and agent expressly agreed to joint and several liability. Thus, OCGA § 9-2-4 would apply in Spalding Ford so as to allow the pursuit of both parties until the judgment was satisfied.

For these reasons, I respectfully dissent as to Division 2 of the majority opinion.

I am authorized to state that Presiding Judge Andrews joins in this opinion.

        Nunley v. Nunley, 248 Ga. App. 208 (546 SE2d 330) (2001).

        Wojcik v. Lewis, 204 Ga. App. 301, 304 (2) (419 SE2d 135) (1992).

        Chambliss v. Hall, 113 Ga. App. 96, 99 (2) (147 SE2d 334) (1966).

        Whitlock v. PKW Supply Co., 154 Ga. App. 573, 574 (1) (269 SE2d 36) (1980).

        Brown-Wright Hotel Supply Corp. v. Bagen, 112 Ga. App. 300, 302 (145 SE2d 294) (1965).

        Crolley v. Haygood Contracting, 201 Ga. App. 700, 702 (3) (411 SE2d 907) (1991).

        Hunter Turnkey, Inc. v. Pilot Property Co., 210 Ga. App. 365, 366 (436 SE2d 84) (1993).

        Reed v. Burns Intl. Security Svc., 215 Ga. App. 60 (449 SE2d 888) (1994).

        Spalding Ford Lincoln-Mercury v. Turner Broadcasting Systems, 202 Ga. App. 505, 507 (2) (415 SE2d 26) (1992).

        Willingham, Wright &c. v. Glover, 28 Ga. App. 394, 396 (3) (111 SE 206) (1922).

        Wylly v. S. Z. Collins & Co., 9 Ga. 223, 240 (1851).

        Watson v. Sierra Contracting Corp., 226 Ga. App. 21, 26 (485 SE2d 563) (1997).

        Campbell v. Alford, 155 Ga. App. 689 (272 SE2d 553) (1980).

        Med. Personnel Pool of Dallas v. Seale, 554 SW2d 211 (Tex. App. 1977).

        Ore Steamship Corp. v. D/S A/S Hassel, 137 F2d 326, 330 (2nd Cir. 1943).

        Johnson & Higgins v. Charles F. Garrigues Co., 30 F2d 251, 254 (2nd Cir. 1929).

        Klinger v. Modesto Fruit Co., 290 P. 127 (Cal. App. 1930).

        Davis v. Childers, 381 S2d 200, 202 (Ala. App. 1979).

        Amortibanc Investment Co. v. Rampart Associated Mgmt., 6 Kan. App.2d 227, 232 (627 P2d 389) (1981).

        Thate v. Texas &c. R. Co., 595 SW2d 591, 599 (Tex. App. 1980).

        Hoyt v. Horst, 105 N.H. 380, 387-389 (201 A2d 118) (1964).

        Grinder v. Bryans Road Bldg. &c. Co., 290 Md. 687 (432 A2d 453) (App. 1981).

        Dimension Graphics v. Liebowitz & Jacobson, 26 Kan. App.2d 722, 725 (994 P2d 658) (1999).

        Beymer v. Bonsall, 79 Pa. 298 (1875).

        Engelstad v. Cargill, Inc., 336 NW2d 284, 286 (Minn. 1983).

        Crown Controls v. Smiley, 110 Wn.2d 695 (756 P2d 717) (1988).

        Illinois Controls v. Langham, 70 Ohio St.3d 512 (639 NE2d 771) (1994).

        Joseph Melnick Bldg. &c. Assn. v. Melnick, 361 Pa. 328, 335-337 (64 A2d 773) (1949).

       (Citation omitted.) Kingsberry Homes v. Findley, 242 Ga. 362, 365 (2) (249 SE2d 51) (1978); accord Watson v. Sierra Contracting Corp., 226 Ga. App. 21, 26 (a) (485 SE2d 563) (1997) (physical precedent only); see Wylly v. S. Z. Collins & Co., 9 Ga. 223, 239 (2) (1851); Brown-Wright Hotel Supply Corp. v. Bagen, 112 Ga. App. 300, 302 (145 SE2d 294) (1965).

        Crolley v. Haygood Contracting, 201 Ga. App. 700, 703 (3) (411 SE2d 907) (1991).

        Watson, supra, 226 Ga. App. at 26 (a).

       155 Ga. App. 689-690 (1) (272 SE2d 553) (1980).

       152 Ga. App. 376, 377-378 (1) (262 SE2d 634) (1979).

       121 Ga. App. 18, 19 (2) (172 SE2d 458) (1970).

       Supra, 152 Ga. App. at 378 (1); see Kingsberry Homes, supra, 242 Ga. at 364-365 (2), and cases cited therein.

        Crolley, supra, 201 Ga. App. at 703 (3).

       Cf. Watson, supra, 226 Ga. App. at 26 (a).

       Supra, 155 Ga. App. at 689-690 (1).

       202 Ga. App. 505, 507 (2) (415 SE2d 26) (1992).

       See id.; cf. Adams, supra, 152 Ga. App. at 378 (1).