author: Beasley, Judge. Smith, Judge,

text:
    A97A0804.
    PHOEBE PUTNEY MEMORIAL HOSPITAL v. SKIPPER.
    (510 SE2d 101)
   Beasley, Judge.

This medical malpractice action was first decided on appeal in Phoebe Putney Mem. Hosp. v. Skipper, where the facts are fully set out. The court held that Skipper filed an invalid affidavit under OCGA § 9-11-9.1 based on the affiant’s failure to sign the affidavit in a notary’s presence and that a second affidavit did not serve to supplement the pleading. The trial court’s denial of the hospital’s motion to dismiss was reversed.

On writ of certiorari, the Supreme Court remanded the case to this Court for reconsideration in light of Porquez v. Washington, which was decided after Skipper, and Hewett v. Kalish.

Porquez and Hewett discuss the propriety of allowing plaintiffs amend OCGA § 9-11-9.1 affidavits. According to Porquez, “[p]ermitting the plaintiff to amend the expert affidavit in order to meet the requirement that it set forth at least one claimed negligent act or omission by each defendant and its factual basis does not defeat the purpose of the statute, but instead helps to insure that the complaint not frivolous. The recent amendment of OCGA § 9-11-9.1 affirms the legislative intent that a plaintiff have a broad right to cure by amendment an allegedly defective affidavit accompanying a charge professional malpractice.”

Porquez and Hewett emphasize the rule that such affidavits “should be construed most favorably to the plaintiff with all doubts resolved in plaintiffs favor, even if an unfavorable construction of the affidavit may be possible.” Under this rationale, a plaintiff may amend an affidavit when its sufficiency or the expert’s competency is challenged.

Porquez and Hewett make clear that plaintiffs must be afforded wide berth to conform to the requirements of OCGA § 9-11-9.1 in accordance with the liberality of the Civil Practice Act as long as the purpose of the affidavit requirement, which is to reduce frivolous malpractice actions, is not thwarted.

Accordingly, the original purported affidavit in this case could be amended or a new valid affidavit substituted for it. This had been accomplished before the trial court ruled on the motion to dismiss, so at that point the suit was no longer subject to dismissal under OCGA § 9-11-9.1 (e) or § 9-11-12 (b) (6) for failure to state a claim. OCGA § 9-10-130 provides that “[a]ll affidavits . . . that are the foundation of legal proceedings . . . shall be amendable to the same extent as ordinary pleadings and with only the restrictions, limitations, and consequences of ordinary pleadings.” The affidavit required by OCGA § 9-11-9.1 is a requisite part of the initial pleading in a medical malpractice case.

The prohibition against cure by amendment which is set forth in OCGA § 9-11-9.1 (e) does not pertain because plaintiff did file a purported affidavit, albeit a defective one. In the words of that section, plaintiff did not fail “to file an affidavit. . . contemporaneously with [her] complaint.” As stated by the Supreme Court, “subsection (e) is only designed to preclude amendment under § 9-11-15 when the plaintiff completely fails to file an affidavit.” Thus the exception to that prohibition, contained in that section, need not be considered as an avenue for plaintiff to escape dismissal of her suit.

The original document filed as an affidavit under OCGA § 9-11-9.1 (b)’s statutory grace period was valid on its face and thus not void but rather voidable. Its defect was discovered by defendant, which sought prompt dismissal of the suit. The hospital’s motion was meritorious when made, as an affidavit is not a “lawful affidavit” where signed outside the presence of the officer and no oath was administered. If all a plaintiff has is an “affidavit” without a proper jurat, oath or signature, then that alone is insufficient to support a proceeding that requires an affidavit.

But here the plaintiff filed a valid affidavit as a substitute for the defective one, before the court ruled on defendant’s motion. With respect to affidavits, “[ajmendment by substitution is as permissible as amendment by striking from or adding to the contents of the paper which it is sought to amend.” Although the rule quoted is a pre-Civil Practice Act rule, there is no reason to reject it for this case. First, OCGA § 9-10-130 applies in particular, rather than the CPA. Second, the CPA is to be construed liberally. So the rule would apply to OCGA § 9-11-15, which provides for amended and supplemental pleadings, as well as in OCGA § 9-10-130 cases.

The reasoning which allowed amendment when competency of the expert is the problem, and when sufficiency of the expert’s statements regarding negligent acts is the problem, applies as well to the deficiencies in the first “affidavit” filed by Skipper.

Analyzing her case in this manner serves the gatekeeper purpose of OCGA § 9-11-9.1, which as stated previously is “to reduce the number of frivolous malpractice suits being filed.” Allowing the amendment, by which the expert did swear under oath that there was deviation from the standard of care in specific ways, at the same time allows a person with an arguably meritorious complaint against a professional for malpractice to enter the door of the courthouse for an airing of her complaint on its merits.

Thus, defendant was not entitled to dismissal of the lawsuit, for “a complaint [as amended] may not be dismissed for an insufficient affidavit unless the affidavit discloses with certainty that the plaintiff would not be entitled to relief under any state of provable facts.”

It is true that the defect in the affidavit here is of a different nature from those in Porquez and Hewett. Unlike the situations there, the document submitted to the court was false, in that it was not what it was presented as, to wit, an expert’s opinion sworn before a notary public. We detailed the seriousness of the actions of plaintiff’s counsel in our first opinion in this case. As we stated: “Justice . . . requires truth, not subterfuge.” But, in conformity with the Supreme Court’s rulings on OCGA § 9-11-9.1 and the law related to amendments to affidavits, sanctions if appropriate must be visited by the proper procedure on the lawyer and not on the innocent plaintiff. As stated in connection with Canon 7 of Georgia’s Code of Professional Responsibility, Ethical Consideration 7-26, “[t]he law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline.”

Judgment affirmed.

Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., concurs in the judgment only. Andrews, C. J., and Smith, J., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. The issue here differs in substance from those discussed in Porquez v. Washington, 268 Ga. 649 (492 SE2d 665) (1997), and Hewett v. Kalish, 264 Ga. 183 (442 SE2d 233) (1994). The affidavits in those cases were, indeed, “affidavits” subject to amendment. The initial affidavit filed by Skipper, however, was not merely insufficient in content or otherwise deficient or defective; it was wholly invalid, because the notary was not present when Capps signed it. As recently reiterated by this Court, “In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” (Citation and punctuation omitted.) Harris v. Murray, 233 Ga. App. 661, 664 (3) (504 SE2d 736) (1998). Furthermore, “[i]n the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with other evidence.” (Punctuation omitted; emphasis supplied.) Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994). The notary, or “officer,” was not present when Capps signed the affidavit. Additionally, unlike Harris, supra, in which we concluded that an oath was administered, because of the understanding between the notary public and affiant that the affiant’s actions “complete[d] the act of swearing,” id. at 665, Capps did not sign the purported affidavit in a notary’s presence, and no evidence was presented to the court showing that any oath was administered. The purported affidavit in this case was not an affidavit at all; Skipper in essence filed no affidavit to amend.

Decided December 2, 1998

Langley & Lee, C. Richard Langley, Clyatt, Clyatt, Wallace & DeVaughn, Carl G. Fulp III, for appellant.

Farkas & Ledford, Leonard Farkas, Thomas G. Ledford, Diane L. Perry, David E. Perry, for appellee.

Liberal construction of the right to amend malpractice affidavits has been mandated by the Supreme Court because that approach “helps to insure that the complaint is not frivolous.” Porquez, supra at 652 (1). But the Supreme Court has not held that such an approach dispenses with the pleading requirement imposed by former OCGA § 9-11-9.1. Nor should we so hold here. Skipper did not file an “affidavit” as required by former OCGA § 9-11-9.1 (a), and she did not supplement the complaint with a valid affidavit within 45 days of filing the complaint as permitted by subsection (b) of that statute. Phoebe Putney generally raised Skipper’s failure to comply with OCGA § 9-11-9.1 in its answer and specifically raised the failure to file a valid affidavit by filing a motion to dismiss after learning that Capps did not sign the complaint in the presence of a notary. No allegation was made that Skipper had the affidavit available prior to filing the complaint or that the failure to file the affidavit was the result of a mistake. Skipper’s complaint was therefore subject to dismissal under former OCGA § 9-11-9.1 (e) and could not be cured by amendment under OCGA § 9-11-15.

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

       226 Ga. App. 585 (487 SE2d 1) (1997).

       268 Ga. 649 (492 SE2d 665) (1997).

       264 Ga. 183 (442 SE2d 233) (1994).

       (Footnotes omitted.) Id. at 652 (1). OCGA § 9-11-9.1 was amended in 1997, applicable only to cases filed after July 1, 1997. Skipper’s case, having been filed before that date, is subject to the former version. But since the Supreme Court construed the amendment as an affirmation of legislative intent already implied, that intent is honored in construing the former version.

        Porquez, supra, 268 Ga. at 650 (1); see Hewett, supra, 264 Ga. at 184 (1).

        Porquez, supra, 268 Ga. at 651; see also Harris v. Murray, 233 Ga. App. 661, 666 (3) (504 SE2d 736) (1998).

        Hewett, supra, 264 Ga. at 184 (1).

       Id. at 186 (1).

        Redwine Bros. v. Jarrell, 14 Ga. App. 294, 298 (80 SE 728) (1914); Cobb v. McCrary, 152 Ga. App. 212, 213 (2) (262 SE2d 538) (1979) (“ ‘[an] affidavit in a civil case, being subject to amendment, is not void even without the jurat’ ”) (emphasis supplied); Mellon Bank v. Coppage, 243 Ga. 219 (253 SE2d 202) (1979) (writ obtained with verification signed before wrong person not void ab initio); Horizon Credit Corp. v. Lanier Bank &c. Co., 220 Ga. App. 362 (1) (469 SE2d 452) (1996). See Dal-Tile Corp. v. Cash N’ Go, 226 Ga. App. 808, 811-812 (487 SE2d 529) (1997) (Beasley, J., concurring specially) (Black’s Law Dictionary defines “void” as “Null; ineffectual; nugatory; having no legal force or binding effect; unable to support the purpose for which it was intended.” “Voidable” means “That which may be avoided, or declared void; not absolutely void, or void in itself. That which operates to accomplish the thing sought to be accomplished, until the fatal vice in the transaction has been judicially ascertained and declared.”) (punctuation omitted).

        Britt v. Davis, 130 Ga. 74 (60 SE 180) (1908).

       See id.; Matthews v. Reid, 94 Ga. 461 (19 SE 247) (1894) (clerk did not administer oath and signed jurat long after affiant signed); Carnes v. Carnes, 138 Ga. 1 (74 SE 785) (1912) (affidavit sworn to over phone and sent to notary who then signed jurat was not under oath and thus was invalid).

       For the requisites of a valid affidavit, see McCain v. Bonner, 122 Ga. 842, 846 (4) (51 SE 36) (1905); Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994).

        Redwine Bros., supra, 14 Ga. App. at 298.

        Porquez, supra, 268 Ga. at 652 (1). “The court in Porquez ... concluded that the Legislature intended for plaintiffs to have a broad right to amend defective affidavits under . . . § 9-11-9.1” even before the 1997 amendments. Harris, supra, 233 Ga. App. at 666.

       As in Hewett, supra, 264 Ga. at 183.

        Porquez, supra.

       (Citation and punctuation omitted.) Gadd v. Wilson & Co. &c., 262 Ga. 234, 235 (416 SE2d 285) (1992); Hewett, supra, 264 Ga. at 184; Porquez, supra, 268 Ga. at 652.

       (Citation and punctuation omitted.) Hewett, supra, 264 Ga. at 186 (2).

        Phoebe Putney Mem. Hosp. v. Skipper, supra, 226 Ga. App. at 586.

       Id.

       Compare discovery sanctions, which the Civil Practice Act expressly provides can impact the case itself. OCGA § 9-11-37. In those instances, righting a wrong after the opponent has moved the court for relief does not preclude the imposition of sanctions. See Banger v. Strother, 171 Ga. App. 607, 609 (2) (320 SE2d 613) (1984); West v. Equifax Credit Information Sues., 230 Ga. App. 41, 43 (1) (495 SE2d 300) (1997).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A98A1062.
    WILSON v. WAFFLE HOUSE, INC.
    (510 SE2d 105)
   Pope, Presiding Judge.

A Waffle House restaurant hired DeKalb County Police Officer Stacey Simms to provide security on weekends, when there had been trouble with criminal activity at the restaurant. On Sunday at 2:00 a.m., Officer Simms, wearing his full DeKalb County police uniform, was in the restaurant parking lot when he saw Anthony Wilson enter the restaurant. Wilson ordered food to take out of the restaurant. When the food was ready, Wilson walked behind the counter to pay the cashier. Upon seeing Wilson standing behind the counter, Officer Simms entered the restaurant and yelled at him to get away from the counter. The two men exchanged words, after which Officer Simms placed his hand on Wilson’s arm and escorted him out of the restaurant. Outside the restaurant they continued exchanging words and had a physical struggle that each man claims the other initiated. Officer Simms then arrested Wilson for obstructing an officer and other charges. Wilson was acquitted of the criminal charges after a jury trial. He then sued Officer Simms and Waffle House for false imprisonment, battery and malicious prosecution. Waffle House moved for summary judgment on the ground that it cannot be held vicariously liable for Officer Simms’ actions. The trial court granted the motion. Wilson appeals.

“Although as a general rule, employers are not responsible under the theory of respondeat superior for the torts of independent contractors, if an employer controls the time, manner, and method of executing the work, an employer-employee relationship exists and liability will attach. [Cit.] In cases involving off-duty police officers working for private employers, however, the employer escapes liability if the officer was performing police duties which the employer did not direct when the cause of action arose. [Cit.]” Seibers v. Dixie Speedway, 220 Ga. App. 811, 812 (1) (470 SE2d 452) (1996). See Beck v. Paideia School, 191 Ga. App. 183-185 (1) (381 SE2d 132) (1989). In the instant case, Officer Simms was performing police duties which Waffle House did not direct. Officer Simms had a verbal agreement with Waffle House to provide security and enforce the law at the restaurant, which was approved of by the DeKalb County Police Chief. There is no document describing Officer Simms’ position or duties at the restaurant. Waffle House had no established security procedures or policies for Officer Simms to follow and gave no security training to him. Instead, Officer Simms took action at the restaurant based on his police training and his own discretion. Compare Seibers v. Dixie Speedway, 220 Ga. App. at 812-813 (1).

On the date in question, Officer Simms alone decided to remove Wilson from the restaurant, after seeing him behind the cashier, and to arrest Wilson for his alleged disorderly conduct. No one from Waffle House directed Officer Simms to take those actions. Officer Simms’ removal of Wilson from the restaurant and arrest of him were done pursuant to Simms’ authority as a DeKalb County policeman. See Welton v. Ga. Power Co., 189 Ga. App. 17, 19-20 (1) (375 SE2d 108) (1988). Because the evidence, when viewed in the light most favorable to Wilson, shows without dispute that Officer Simms was performing police duties which Waffle House did not direct, the trial court correctly granted summary judgment to Waffle House. See Rembert v. Arthur Schneider Sales, 208 Ga. App. 903, 905 (432 SE2d 809) (1993); Quinones v. Maier & Berkele, Inc., 192 Ga. App. 585, 589-591 (2) (385 SE2d 719) (1989).

Decided December 2, 1998.

Peter D. Copeland, Waymon Sims, for appellant.

Swift, Currie, McGhee & Pliers, Susan A. Dewberry, for appellee.

Judgment affirmed.

Beasley, J., concurs. Ruffin, J., concurs in judgment only.


author: Ruffin, Judge.

text:
    A98A1143.
    FLAGG ENERGY DEVELOPMENT CORPORATION et al. v. GENERAL MOTORS CORPORATION.
    (509 SE2d 399)
   Ruffin, Judge.

In this contract case, Flagg Energy Development Corporation (“Flagg”), Kenetech Facilities Management (“KFM”), CCF-1, Inc. (“CCF-1”), and Process Construction Supply, Inc. (“PCS”) sued General Motors Corporation for breach of a 1990 settlement agreement. General Motors moved to dismiss the case under the doctrine of res judicata based upon a judgment rendered in a Connecticut court, and the trial court granted its motion. On appeal, plaintiffs contend the trial court erred (1) in dismissing the claim because the Connecticut action and the Georgia action did not share identical issues or causes of action; and (2) in failing to use the doctrine of judicial estoppel to preclude General Motors from asserting “contradictory and mutually exclusive arguments” in the two cases. For reasons which follow, we affirm.

Although styled a dismissal, the trial court’s order constituted a grant of summary judgment because the trial court considered evidence outside the pleadings. See Purcell v. C. Goldstein & Sons, Inc., 166 Ga. App. 547, 548 (305 SE2d 10) (1983). As such, we must determine whether the movant was entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

Flagg is the parent company of CCF-1, a company which owns a power plant in Hartford, Connecticut, that was constructed by PCS. In December 1987, PCS purchased from Sulzer Turbosystems, Inc. (“Sulzer”) two turbine engines manufactured by Allison Gas Turbine Division of General Motors (“GM”) for use in the power plant.

Due to dissatisfaction with the turbine engines, PCS did not pay Sulzer for the engines until July 1990 when Flagg and PCS reached a settlement agreement with GM and several other parties.

As part of this agreement, GM assumed all of Sulzer’s duties under the original purchase order. At the time that the agreement was signed, Flagg purchased a third turbine engine directly from GM, which it subsequently transferred to KFM.

In 1992, Flagg, PCS, and CCF-1 filed suit against GM in Connecticut to recover damages in connection with purchase of the three turbine engines. According to a revised complaint filed in April 1993, these three plaintiffs alleged (1) breach of contract; (2) breach of express warranty; (3) breach of implied warranty; (4) misrepresentation; and (5) breach of repair and replacement warranty. Although the complaint did not specifically seek relief under the 1990 settlement agreement, it did reference GM’s assumption of Sulzer’s obligations pursuant to the agreement.

On August 1, 1994, while the Connecticut suit was still pending, Flagg, PCS, CCF-1 and KFM filed suit in Fulton County, Georgia, alleging breach of the 1990 settlement agreement. On August 28, 1995, GM filed a motion to dismiss and a motion for summary judgment in the Georgia matter because of the pending case in Connecticut. GM also sought judgment against KFM, asserting that KFM (who was not a party in the Connecticut suit) was not a party to the 1990 settlement agreement and that KFM had released any claims it had against GM. The trial court granted GM’s motion to dismiss without prejudice in light of the pending Connecticut litigation and granted summary judgment in favor of GM against KFM.

On appeal, this Court affirmed the grant of summary judgment against KFM. Flagg Energy Dev. Corp. v. Gen. Motors Corp., 223 Ga. App. 259, 260 (1) (477 SE2d 402) (1996). However, we reversed the dismissal of the case as to Flagg, PCS, and CCF-1, since dismissal of a claim based on a prior pending action in the courts of another jurisdiction is inappropriate. Id. at 261 (2).

On October 3, 1996, the Connecticut court, having previously granted GM’s motion for summary judgment as to all claims except CCF-l’s claim for breach of the repair and replacement warranty, issued a directed verdict in favor of GM on the remaining count. The Connecticut court also submitted the case to a jury which returned a verdict in favor of GM which the court accepted. After the final decision had been rendered in Connecticut, GM filed a motion to dismiss the Georgia case on April 18, 1997, alleging the action was barred by res judicata. The trial court granted this motion on August 5, 1997, and plaintiffs appeal.

1. The doctrine of res judicata, codified in OCGA § 9-12-40, provides that “ ‘(a) judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ Res judicata prevents plaintiffs from splitting up claims arising from the same transaction and prosecuting them piecemeal or presenting only a portion of the grounds on which relief is sought and leaving the rest for a second suit if the first fails.” (Citations omitted.) Danzell v. Cannon, 224 Ga. App. 602-603 (1) (481 SE2d 588) (1997). Moreover, “[t]he doctrine of full faith and credit renders the judgments and adjudications of courts of sister states of competent jurisdiction res judicata in this state unless the court lacked personal or subject matter jurisdiction or unless the judgment was procured by fraud.” Chrison v. H & H Interiors, 232 Ga. App. 45, 46-47 (500 SE2d 41) (1998). “However, for one action to act as a bar to a subsequent action, the two actions must share certain characteristics. First, the parties to the two actions must be identical and, second, the subject matter of the actions must also be identical.” Lawson v. Watkins, 261 Ga. 147, 148 (1) (401 SE2d 719) (1991).

With regard to the requirement that the parties be identical, we note that, although KFM was not a party to the Connecticut claim, it is listed as a plaintiff in the case at bar. In Flagg, supra, however, we affirmed the trial court’s grant of summary judgment in favor of GM as to KFM. Consequently, KFM is no longer a party to this case, notwithstanding that its name remains on the appellants’ enumeration of errors and brief. Therefore, the parties to the two actions are identical.

Thus, the issue before us is whether the subject matter of the two actions is identical. Plaintiffs contend it is not identical since the Connecticut action was based upon the terms of the 1987 purchase agreement and the Georgia action is based upon the 1990 settlement agreement. This contention lacks merit. Plaintiffs based their Connecticut suit on the premise that, pursuant to the 1990 settlement agreement, GM assumed “all duties owed by [Sulzer] under the PCS[ ] Purchase Order.” Thus, the Connecticut action involved GM’s obligations under the 1990 settlement agreement. The present case involves other obligations GM allegedly undertook pursuant to the same 1990 settlement agreement. In other words, plaintiffs seek to do exactly what res judicata prohibits — they seek to split a cause of action arising under the same contract. Consequently, the trial court correctly concluded that res judicata bars plaintiffs’ Georgia claim.

In any event, even if the Connecticut action had not directly involved claims under the 1990 settlement agreement, res judicata would still serve as a bar to the Georgia claim. It is undisputed that both the Connecticut and Georgia actions stem from the same transactions, that is the purchasing of three allegedly defective turbine engines manufactured by GM. GM’s liability under these transactions provides the “subject matter” for both lawsuits, not the legal theory upon which plaintiffs chose to proceed. “From a single wrong but one cause of action can arise.” (Punctuation omitted.) Garrett v. Transus, Inc., 177 Ga. App. 844, 845 (1) (341 SE2d 494) (1986). Therefore, since both actions are premised on the same wrong, the Georgia case would be barred even if the Connecticut action was not based, in part, on the 1990 settlement agreement. See Danzell, supra at 603 (2) (res judicata barred party who successfully sued to release materialman’s lien in South Carolina from bringing tort claim in Georgia arising from the same lien); Doman v. Banderas, 231 Ga. App. 229 (499 SE2d 98) (1998) (res judicata barred a party who brought suit for breach of contract and tortious interference of contract from bringing a subsequent suit for defamation).

Finally, we reject plaintiffs’ contention that res judicata should not bar the Georgia suit since the Connecticut court did not address the merits of its claims stemming from the 1990 settlement agreement. As an initial matter, there is nothing in the record to support plaintiffs’ argument that the Connecticut court declined to address the 1990 agreement. Even so, the issue is not whether the Connecticut court did address all of plaintiffs’ arguments on the merits, but whether the Connecticut court could have done so. “[I]t is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense.” (Emphasis in original.) Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 SE2d 255) (1998). Accordingly, res judicata bars the Georgia suit regardless of whether the Connecticut court addressed the merits of plaintiffs’ claims under the 1990 settlement agreement.

2. Plaintiffs also assert that the trial court erred in failing to find that judicial estoppel precluded GM from arguing contradictory and mutually exclusive legal theories in Connecticut and in Georgia. Specifically, plaintiffs argue that GM’s res judicata defense in the Georgia case conflicts with GM’s position in Connecticut that plaintiffs failed to assert any claims stemming from the 1990 settlement agreement. However, we are not persuaded that GM has taken inconsistent positions. Rather, we agree with GM’s statement that “both actions allege liability against GM arising out of the 1990 Settlement Agreement.” In Connecticut, GM simply argued that plaintiffs did not raise any independent claims under the 1990 settlement agreement. This argument does not preclude GM from arguing that the Georgia case is barred by res judicata.

Decided December 2, 1998.

Smith & Fleming, George D. Wenick, for appellants.

Mark D. Oldenburg, for appellee.

Even if GM had taken inconsistent positions, the result would have been the same. “The primary purpose of the doctrine [of judicial estoppel] is not to protect the litigants, but to protect the integrity of the judiciary.” Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994). However, plaintiffs invoke this doctrine to protect their own interests. In the case at bar, the integrity of the judiciary is best protected by promoting judicial economy rather than giving plaintiffs a second opportunity to present evidence of the same wrong. “A litigant must discharge all his weapons, and not reserve a part of them for use in a future [encounter]. He must realize that one defeat will not only terminate the campaign, but end the war.” (Punctuation omitted.) Piedmont Cotton Mills, supra at 111.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


text:
    A98A1160.
    WILLIS et al. v. NATIONAL MORTGAGE COMPANY.
    (509 SE2d 403)
   Ruffin, Judge.

On August 21, 1996, National Mortgage Company (“National”) brought a complaint in equity against Ann West Willis and A.W.W. Properties, Inc. (“AWW”) to set aside an allegedly fraudulent conveyance of property located in Houston County, Georgia. Willis counterclaimed, purportedly for wrongful foreclosure of the Houston County property. In October 1997, National filed a motion for summary judgment, contending that Willis’ counterclaim was barred by res judicata and collateral estoppel. The trial court granted the motion, and Willis appeals. We affirm.

The record shows that Willis entered into a “note agreement” with Guaranty Federal Savings Bank on July 28, 1989. Guaranty allegedly became insolvent, and Federal Deposit Insurance Corporation (FDIC) acquired the note. FDIC subsequently transferred the note to National, which attempted to collect on the note. In April 1995, National began foreclosure proceedings on property Willis owned in Houston County, Georgia. Approximately one month, later, National ceased its efforts to foreclose on the Georgia property.

In August 1995, National filed a complaint in the United States District Court, Central District of California, in an effort to collect on the note. In Willis’ answer she acknowledged that she was in default on the note. The California court, after having granted summary judgment in favor of National on the issue of liability, granted summary judgment on the issue of damages on March 19, 1996, and awarded National $75,970.13.

Also in August 1995, Willis incorporated AWW and transferred the Houston County property to the company. In August 1996, National brought the present action in Houston County to set aside the conveyance, contending that Willis had transferred the property in an attempt to defraud National. In her answer, Willis asserted a counterclaim in which she contended, inter alia, that National, in attempting to foreclose on the Houston County property, had caused her great embarrassment and had ruined her relationship with certain creditors. However, Willis sought damages based upon National’s actions in instituting the equity complaint against her. After Willis filed her answer, the California judgment was satisfied through the proceeds of the sale of a house Willis owned in California.

On October 10, 1997, National filed a motion for summary judgment on Willis’ counterclaim, contending the claim should have been raised in California and thus was barred by res judicata and collateral estoppel. The trial court granted National’s motion, after which National dismissed its main claim.

1. Willis contends the trial court erred in finding that her counterclaim for wrongful foreclosure was barred by res judicata and collateral estoppel. At the outset, we note that it is unclear whether Willis ever asserted a counterclaim for wrongful foreclosure. Although her answer references National’s attempt to foreclose on the Houston County property, her counterclaim is based on National’s alleged bad faith in filing its equity complaint.

In any event, even if Willis had asserted a counterclaim for wrongful foreclosure, the trial court correctly determined that the counterclaim was barred by res judicata. OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” With regard to judgments of foreign courts, “[i]t is well established that the doctrine of full faith and credit renders the judgments and adjudications of courts of sister states of competent jurisdiction res judicata in this state.” Nations-Bank v. Gibbons, 226 Ga. App. 610, 611 (487 SE2d 417) (1997).

Willis claims that she attempted to raise the issue of wrongful foreclosure in California, but asserts she was barred from “raising any defenses in that case against the FDIC under 1) the Federal Holder in Due Course Doctrine, 2) the D’Oench Doctrine, and 3) 12 U.S.C. § 1823(e).” However, Willis attempted to assert the wrongful foreclosure as a defense to payment of the note. She did not attempt to raise the wrongful foreclosure issue as a counterclaim. In fact, the answer Willis filed in California did not contain any counterclaims, nor did it reference the foreclosure action.

Thus, the crucial question before this Court is whether Willis had a full opportunity to raise wrongful foreclosure as a counterclaim in the California suit. If so, then res judicata would serve as a bar to the Georgia action. Fowler v. Vineyard, 261 Ga. 454, 455 (1) (405 SE2d 678) (1991). It is of no consequence that Willis may not have taken full advantage of her opportunity to litigate in California. Cf. Chrison v. H & H Interiors, 232 Ga. App. 45, 49 (500 SE2d 41) (1998) (dismissal of prior action on technical grounds served as res judicata in subsequent claim).

Both federal and state law require that “[a] pleading . . . state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” OCGA § 9-11-13 (a); Fed. R. Civ. P. 13 (a). Furthermore, both federal and state courts employ the “logical relationship” test in determining whether a counterclaim is compulsory. See Myers v. United Svcs. Auto. Assn., 130 Ga. App. 357, 360 (203 SE2d 304) (1973), citing Moore v. New York Cotton Exchange, 270 U. S. 593 (46 SC 367, 70 LE 750) (1926).

Here, without question, the claim for wrongful foreclosure is logically related to the action to collect on the same note. See Goss & Goss Dev. Co. v. First Union Nat. Bank of Ga., 196 Ga. App. 436, 437 (1) (396 SE2d 19) (1990) (suit for wrongful foreclosure constituted a compulsory counterclaim to suit on note). Therefore, it was incumbent upon Willis to file her compulsory counterclaim in California. Her failure to do so precludes her from attempting to recover in this state, and the trial court did not err in concluding that her claim is barred by res judicata. Myers, supra at 361.

2. In light of our holding above, we need not address Willis’ final enumeration which alleges that the trial court erred in barring the counterclaim under OCGA § 9-12-134.

Decided December 2, 1998.

Roy N. Cowart, for appellants.

Vincent, Berg, Stalzer & Menendez, Marguerite P. Bryan, Gerald K. Domescik, for appellee.

Judgment affirmed.

Pope, P. J., concurs. Beasley, J., concurs in the judgment only.

       We note that the record does not mention any claim instituted against Willis by FDIC.


text:
    A98A1344.
    JENKINS v. THE STATE.
    (510 SE2d 87)
   Pope, Presiding Judge.

On the night of December 16,1996, the owner of a service station called police after he observed appellant James Edward Jenkins enter the station building through a broken window after business hours. When officers arrived minutes later, they found Jenkins sitting on the floor behind the counter and a bag of copper piping near the counter out of its normal position in the back room. Jenkins told the officers that he was in the closed service station because he slept there every night. Jenkins was arrested and indicted on one count of burglary. At trial, the court charged the jury on the elements of both burglary and the lesser included offense of criminal trespass. Jenkins appeals from the trial court’s denial of his motion for new trial following his conviction for burglary. We affirm.

1. Jenkins first argues that the trial court erred in allowing the prosecutor to make improper remarks during closing argument.

He asserts that the prosecutor improperly referred to punishment in violation of OCGA § 17-8-76 when he stated that if the jury convicted Jenkins of the lesser included offense of criminal trespass “that that would be letting this Defendant off the hook. . . .” He also contends that the prosecutor improperly referred to issues of Jenkins’ credibility in violation of OCGA § 17-8-75 when he argued, “There was some evidence that this Defendant said well I was sleeping. I sleep here all the time, but that’s just not believable under these circumstances.” Jenkins’ counsel made no objection to these remarks at trial.

“The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error. When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.” (Citations and punctuation omitted.) Richards v. State, 232 Ga. App. 584, 588 (4) (502 SE2d 519) (1998).

Even if the prosecutor’s remarks could be interpreted as improper, we find it highly improbable in light of the evidence that these remarks changed the result of the trial. Therefore, any error in the prosecutor’s argument was harmless. See Bishop v. State, 268 Ga. 286, 294 (14) (486 SE2d 887) (1997); Cherry v. State, 230 Ga. App. 443, 447 (5) (496 SE2d 764) (1998).

2. Jenkins next asserts that he was denied effective assistance of counsel because his trial attorney failed to object to the prosecutor’s arguments and further because he failed to move for a directed verdict at the close of the state’s case.

“To succeed on an ineffective assistance of counsel claim, [Jenkins] must show that trial counsel’s performance was deficient and that it prejudiced [him] so as to deprive [him] of a fair trial. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).” Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188) (1992). “Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. In addition, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations, punctuation and emphasis omitted.) Brooks v. State, 232 Ga. App. 115, 119 (15) (501 SE2d 286) (1998).

Here, there is no evidence that defendant’s trial counsel’s actions were deficient. Moreover, as we have held that any improper argument from the prosecutor was harmless error and as Jenkins has failed to show that there is a reasonable probability that but for his counsel’s trial tactics the results of the trial would have been different, we conclude that Jenkins was not denied effective assistance of counsel.

3. Jenkins further argues that his case should be remanded for re-sentencing due to defects in the notice and procedure for the presentence hearing required under OCGA § 17-10-2.

(a) Jenkins argues that he failed to receive timely notice that the state intended to use his prior convictions to seek recidivist punishment. OCGA § 17-10-2 provides that in determining punishment, the trial judge shall hear in aggravation only the evidence that “[t]he state has made known to the defendant prior to the defendant’s trial.” The state filed notice of its intent to seek recidivist punishment at 7:40 a.m. April 7, 1997, approximately 80 minutes before the trial was scheduled to begin. While jury selection had occurred the prior day, the jury was not sworn in until the morning of April 7, at the start of trial. This Court has previously held that notice received prior to the jury’s being sworn is sufficient to satisfy the requirement of the statute. See Godfrey v. State, 227 Ga. App. 576, 577 (1) (489 SE2d 364) (1997); Payne v. State, 219 Ga. App. 318, 319 (4) (464 SE2d 884) (1995). Jenkins, therefore, received timely notice of the intention to seek recidivist punishment.

Jenkins argues, however, that the notice did not allow his trial counsel sufficient time to prepare for the presentence hearing. “The failure to move for a continuance precludes appellant from asserting that his counsel was not afforded an ample opportunity to investigate the admissibility of the prior conviction as evidence in aggravation of the sentence! ] imposed in this case.” Day v. State, 188 Ga. App. 648, 650-651 (8) (374 SE2d 87) (1988). Godfrey v. State, 227 Ga. App. at 577 (1).

(b) Jenkins also contends that the trial court failed to follow the requirements of OCGA § 17-10-2 (a) for a presentence hearing and thus he argues no hearing occurred. OCGA § 17-10-2 (a) provides that “upon the return of a verdict of ‘guilty’ by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed.” The statute further provides that the district attorney shall open the argument and that defendant or his counsel shall conclude the argument. OCGA § 17-10-2 (a).

After the verdict, the judge conducted a bench conference on sentencing without dismissing the jury. During the conference, the prosecution presented his argument and evidence first, followed by the defense counsel’s argument; the prosecutor then replied with rebuttal argument to which the defendant answered with surrebuttal. The argument eventually evolved into a back-and-forth discussion with the trial court regarding the requirements of OCGA § 17-10-2. Defense counsel raised no objection to this procedure.

While the failure to hold a presentence hearing cannot be waived by a failure to object, Hayes v. State, 211 Ga. App. 801, 804 (3) (440 SE2d 539) (1994), we find that the trial court did hold a hearing in accordance with OCGA § 17-10-2 (a). This Court has held that the language instructing the court to dismiss the jury “is directory only and is for the sole purpose of permitting the jury to disburse and not require them to remain in a jury box during the progress of the presentence hearing. Any failure on the part of the trial judge to dismiss the jury at this stage of the proceeding, if an error, does not in any way affect the indictment, trial and conviction of the defendant, and if an error, is one of which he has no right to complain.” Whitley v. State, 137 Ga. App. 245, 246 (2) (223 SE2d 279) (1976). See Thomas v. State, 180 Ga. App. 575, 577 (349 SE2d 807) (1986) (Beasley, J., concurring specially). Thus, this procedure which is intended for the jury’s convenience provides no basis for Jenkins’ objection. In this case, moreover, there is no evidence that the jury was privy to the hearing, which was conducted at the bench. Therefore, any error in the trial court’s failure to dismiss the jury was harmless.

Additionally, the trial court followed the order of argument outlined in the statute allowing the state to argue first, followed by defense counsel. The fact that discussion between the counsel and the trial court continued after these initial presentations is not, as Jenkins argues, an indication that no hearing occurred, but rather demonstrates that the parties had the opportunity to address the issues fully. And as trial counsel made no objection to the procedure followed in the hearing, any error is waived. See generally Hatcher v. State, 224 Ga. App. 747, 750 (2) (a) (482 SE2d 443) (1997).

(c) Jenkins also asserts that the trial court erred in imposing the recidivist punishment because it improperly considered evidence of Jenkins’ prior arrests. The state introduced certified copies of one prior felony conviction and one prior misdemeanor conviction and informed the court that Jenkins had at least four prior arrests. Jenkins is correct that prior arrests are not properly considered in imposing recidivist punishment. Sinkfield v. State, 262 Ga. 239, 240 (2) (416 SE2d 288) (1992). A presumption exists, however, that a trial judge did not consider improper matters in imposing sentence. Watkins v. State, 191 Ga. App. 87, 91 (8) (381 SE2d 45) (1989). A review of the record in this case demonstrates that Jenkins’ trial counsel successfully argued that his prior arrests were not to be considered in imposing recidivist punishment and that the trial court looked to Jenkins’ prior felony conviction in imposing the sentence in this case. Jenkins’ prior burglary conviction alone was sufficient under OCGA § 17-10-7 (a) to support the 20-year sentence imposed by the trial court. See Godfrey v. State, 227 Ga. App. at 577 (2). Accordingly, we find that any error in the discussion of the prior arrests was harmless.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

Decided December 2, 1998.

Edenfield, Cox, Bruce & Classens, Michael J. Classens, for appellant.

R. Joseph Martin III, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

       The state’s notice under OCGA § 17-10-2 (a) did not list the misdemeanor conviction as evidence it intended to present at trial. However, a certified copy of that conviction was filed with the notice, and Jenkins’ counsel made no objection to its introduction at trial nor does Jenkins raise the issue on appeal. Thus, any issue in this regard is waived. See Hatcher v. State, 224 Ga. App. at 750.


author: Beasley, Judge. Pope, Presiding Judge,

text:
    A98A1631, A98A1689.
    IN RE LAWSUITS OF ANTHONY J. CARTER (two cases).
    (510 SE2d 91)
   Beasley, Judge.

Anthony J. Carter appealed from an unnumbered order of the superior court entered March 10 directing that the clerk of court “shall not file any law suit brought by, or on behalf of Anthony J. Carter unless same is signed by a member in good standing of the State Bar of Georgia who shall certify that the complaint sets our [sic] a prima facie case upon which some relief could be granted.”

Carter filed a notice of appeal on April 3, which appeal was docketed as Case No. A98A1631. He filed an application for permission to appeal on April 6, 1998, which was granted on April 14 pursuant to OCGA § 5-6-35 (j) because Carter had the right to appeal from the order adversely affecting his attempts to file civil complaints. He filed no notice of appeal after our order but instead amended his original notice of appeal on April 16 to designate additional parts of the record to be transmitted to this Court. The amendment erroneously generated a new case number (A98A1689) in this Court. Since Carter had a right to appeal, Case No. A98A1689 is dismissed, as it purports to be the appeal granted pursuant to the unnecessary application. The records in both files are consolidated for consideration in Case No. A98A1631.

Two undated pro se complaints are contained in the record. We do not know whether Carter attempted to file them before or after the court’s March 10 order, although one has an affidavit signed March 9. They are unnumbered and bear no file stamp, indicating the clerk of court refused to file them. The court’s order, addressed to the clerk, states that Carter files cases “solely for the purpose of harassment.” This statement of fact is based on litigation history of which the court took judicial notice and does not suggest any review of the two attempted complaints. In support of its finding, the court described 17 pro se lawsuits filed against 29 separate defendants since 1989 as being voluminous and frivolous and having warranted no relief or recovery. The order is signed with approval also by the chief judge of the circuit.

As error, Carter enumerates first that the trial court deprived him of his right contained in the state constitution, Ga. Const., Art. I, Sec. I, Par. XII, to prosecute his cause pro se in any of the state’s courts. He secondly enumerates as error the entry of the order in violation of his state constitutional right to due process of law, namely, the right to notice and an opportunity to be heard before entry of such an order. Implicated in both is the right of access to the courts.

Carter’s claims are responded to only by a brief on behalf of Fayette County, a named defendant in one of the suits, which brief attaches as exhibits two orders. Since they are not part of the record, which they might have been by designation under OCGA § 5-6-42 after appropriate trial court order making them part of the record, we cannot consider them or the recitation of facts concerning them.

1. As stated in paragraph 12 of the Georgia Bill of Rights, a person has a right to represent himself or herself in court. “This provision was ‘primarily intended to guarantee the right of self-representation in the courts of this State. . . .’ [Cit.]” Its purpose is to provide a right of choice between self-representation and representation by counsel. Secondly, the very first provision of the Bill of Rights in “ ‘[t]he constitution of this state guarantees to all persons due process of law and unfettered access to the courts of this state. (Cit.) These fundamental constitutional rights require that every party to a lawsuit... be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. (Cits.)’ ” But like all rights, responsibilities are attached and limits are imposed. No person is free to abuse the courts by inundating them with frivolous suits which burden the administration of the courts for no useful purpose.

On point also, since the trial court sought both to “preserve the orderly administration” of the court and to “protect the citizens from unfounded and harassing claims,” no person is free to abuse the right by hauling other persons into court for the purpose of harassment. The legislature has provided a number of remedies for hapless defendants in such civil proceedings. Creation of the tort of abusive litigation is both a sword which may be called into use when such actions are initiated, continued or procured and a shield which stands as a threat to those who would offend the right of access maliciously and without substantial justification.

Likewise, attorney fees and litigation expenses may be recovered against those who assert a claim, defense or other position completely lacking in a justiciable issue. To guard against frivolous professional malpractice suits even before they are filed, statutory law requires that a plaintiff obtain and provide an expert affidavit with the complaint. Claims which entail a defendant’s right to free speech or right to redress of grievances must include a sworn verification by plaintiff and plaintiff’s attorney, if there is one, that the claim is not interposed for an improper purpose. Except in habeas corpus cases, when an indigent person seeks to file a claim without payment of court costs and without an attorney (and thus without an attorney’s verification), the complaint is subject to prefiling judicial scrutiny to ascertain whether it is so lacking in a justiciable issue that its filing should be denied.

Even some habeas corpus cases are subject to prefiling judicial scrutiny, where a pattern of filing frivolous lawsuits is found. And in Smith v. Adamson, the Court held that an order requiring future suits filed by a litigious pro se litigant to be approved by the judge and accompanied by two affidavits, one of which was her own sworn assurance of propriety, did . not deprive her of meaningful access to the courts. These narrow court-fashioned restrictions, which incorporated judicial decision-making and thus provided access which was “adequate, effective and meaningful,” passed constitutional tolerance. Of course, use of the contempt power to impose sanctions is also available.

This non-exhaustive recitation illustrates permissible curbs on the right of access to the courts which is guaranteed by Georgia’s Bill of Rights. Under the United States Constitution, access is regarded as a corollary of due process of law. No less may be said of the first paragraph of the Georgia Constitution. If the entrance to the court is arbitrarily blocked by the court itself, one of the very purposes of the constitution, to “insure justice to all,” fails of accomplishment.

So it is that meaningful access to the courts must be scrupulously guarded, as it is a constitutional right universally respected where the rule of law governs. “Those regulations and restrictions which bar adequate, effective and meaningful access to the courts are unconstitutional. [Cits.]” The measure taken by the court below, although directed to the clerk, in effect precluded lawsuits by Carter himself. It is not statutorily authorized, as are the foregoing instances of protection against abuse of the right of access, nor does it interpose judicial scrutiny, as do those illustrations which do not involve attorney signature or payment of costs, both of which requirements act as brakes.

Instead, it requires Carter to hire an attorney in order to gain access to the court for any claim, legitimate or not, and in effect delegates to that attorney, at least preliminarily, what should otherwise be the judicial task of determining frivolousness or maliciousness. It creates a conclusive presumption that, regardless of its content, a suit filed by Carter pro se constitutes harassment. So the order prejudges the case and denies process altogether, much less due process, unless Carter as plaintiff relinquishes his constitutional right to self-representation. In other words, it indiscriminately interdicts all suits by Carter when he seeks to invoke his right of self-representation.

Such a price is not justified, for as seen by the illustrations recited above, adequate remedy is provided for whoever is harassed by way of a lawsuit. The device fashioned by the court for application exclusively to Carter contravened constitutional bounds, because a restriction on the right of access “must be drawn so as to avoid unjustifiably obstructing access to the courts and [to be] clearly warranted by the particular circumstances of each case.”

The superior court in this case required any future suits to first pass through the crucible of an attorney’s legal judgment and required that the attorney, an officer of the court bound by the Code of Professional Responsibility, certify that the complaint set out a prima facie case. This condition compels Carter to incur the expense of hiring an attorney despite the constitutional right to represent himself. Although it is a relatively minor expense because it necessitates only a review of the complaint to assure that it is not frivolous, it eliminates the freedom to submit his complaint independently. True, he may choose the attorney, but the requirement bars access based on the strength of Carter’s voice alone, although he may still represent himself to the fullest and may still file his complaints in his own name. But even though the purpose is to end the abuse which was experienced at Carter’s hand, the restriction is overbroad. It, like the unlawful injunction in Procup v. Strickland, absolves the court itself of responsibility to examine the suits for frivolity or maliciousness on a case-by-case basis.

For these reasons, the order must be vacated.

2. Further, the order is faulty because Carter was not given notice or an opportunity to be heard or to dispute the facts upon which it was grounded, before the affirmative action was taken to prohibit his pro se complaints without an attorney certification. For one thing, it was not entered in any pending suit, as was done in Smith v. Adamson. Although the court may in some circumstances issue sua sponte dismissals pursuant to its inherent authority recognized in OCGA § 15-6-9 (8), we have not found a case where a blanket pre-filing order was entered outside of a pending suit, imposing restrictions on the pro se right of access.

Secondly, the facts were not undisputed and were not of record, although they were in some instances facts of which the court took judicial notice. In Carter’s brief, which is the first opportunity he has had to dispute the factual basis for the order, he challenges the court’s characterizations and findings about the outcome of the litigation in which he has been involved. The proper place for resolution of factual differences is in the trial court.

“Both the Georgia and United States Constitutions prohibit the state from depriving ‘any person of life, liberty, or property, without due process of law.’ United States Const., amend. XIV, sec. 1; see also Ga. Const., [Art. I, Sec. I, Par. I]. ‘The fundamental idea of due process is notice and an opportunity to be heard.’ ” As stated in Citizens &c. Bank v. Maddox, “[t]he benefit of notice and a hearing before judgment is not a matter of grace, but is one of right.” “A party’s cause of action is a property interest that cannot be denied without due process. [Cit.]”

Before a blanket order was entered, Carter was entitled to a hearing on the court’s contemplated action to achieve the least restrictive but efficacious means while honoring the sensitive balance which must be struck between his right of access to the courts pro se and the interests of other litigants and of the public in general “ ‘in protecting judicial resources from the deleterious impact of repetitious, baseless pro se litigation.’ ”

Judgment vacated in Case No. A98A1631.

Appeal dismissed in Case No. A98A1689. Ruffin, J., concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I concur in the dismissal of Case No. A98A1689 and agree with the opinion and conclusion in Case No. A98A1631 that the superior court’s order must be vacated. Nevertheless, I write separately with respect to Division 1 to outline an appropriate sanction for the demonstrably vexatious litigant, Anthony Carter.

The court’s order recites that since 1989 Carter had filed, or attempted to file, 17 separate lawsuits against 29 separate defendants. The court further outlines the burden Carter’s litigiousness has placed on it, stating: “[t]his Court has physically looked at the original files of all of these law suits, and if each were stacked on top of the other would stand more than three feet above the floor.”

The complaints contained in the record also demonstrate Carter’s litigious nature. The first, filed against two Fayette County Deputy Sheriffs, is entitled “Complaint on Excessive Levy Failure to Levy on Items Specified Negligence, False Affidavit Malice Conspiracy for Promotion.” According to Carter’s complaint, the incidents leading to that suit arose out of officers’ effort to levy property to satisfy a writ “that Fayette Magistrates and Fayette County had for two suits that Superior Court Judge said were frivolous, and granted attorney fees.” In other words, Carter filed a suit for the attempt to levy property to satisfy court-imposed penalties for a prior frivolous lawsuit.

Although the order which the court entered here is overly broad, it is important to acknowledge the tremendously difficult quandary courts face with respect to stubborn litigiousness of this nature. Indisputably, Carter’s actions here require some curtailment. But, frequently the litigants are judgment-proof and the imposition of financial penalties for pursuing the frivolous litigation becomes meaningless.

As the opinion notes, narrow court-fashioned restrictions which incorporate judicial decision-making generally have passed constitutional muster. For example, in Howard v. Sharpe, 266 Ga. 771 (470 SE2d 678) (1996), the trial court entered an order which enjoined Howard from filing any lawsuits in forma pauperis unless he first obtained approval of the habeas judge and certified that the claims raised were novel. The Supreme Court held that this “narrowly drawn” order was a reasonable restriction of Howard’s right of access in light of his past pattern of filing frivolous lawsuits. In Smith v. Adamson, 226 Ga. App. 698, 699-700 (3) (487 SE2d 386) (1997), the court held that an order requiring future suits filed by a litigious pro se litigant to be approved by the judge and accompanied by two affidavits, one of which was her own sworn assurance of propriety, did not deprive her of meaningful access to the courts. See also Procup v. Strickland, 792 F2d 1069 (11th Cir. 1986); compare Bd. of Commrs. of Morgan County v. Winslow, 862 P2d 921, 923-924 (Colo. 1993).

When confronted with vexatious litigants like Carter, courts have considerable discretion in fashioning appropriate injunctions. The court could direct the litigant to accompany all future pleadings with affidavits certifying that the claims being raised are novel, subject to contempt for false swearing. See Urban v. United Nations, 768 F2d 1497, 1500 (D.C. Cir. 1985). The court could direct the litigant to seek leave of court before filing pleadings in any new or pending lawsuit; thus, the court could screen the complaint to determine if it had merit. See id.; Howard, 266 Ga. 771. In Procup v. Strickland, 792 F2d 1069, the court suggested other possible restrictions for a court attempting to deal with an overly litigious litigant, including: limiting the number of pages to a complaint and other pleadings; and limiting further pleadings without an order of the court — after allowing the complaint to be filed. Although these options continue to require the court to be burdened with this type of litigation, until the General Assembly funds more attorneys for public service, it is not feasible to require that a litigant obtain approval from an attorney before filing his complaint.

Decided December 2, 1998.

Anthony J. Carter, pro se.

McNally, Fox & Cameron, William R. McNally, Dennis A. Davenport, for appellee.

       “Complaint on Excessive Levy, Failure to Levy on Items Specified, Negligence, False Affidavit, Malice, Conspiracy for Promotion” against two deputy sheriffs individually; “Complaint on Violation of Constitutional Rights to Pro Se and File Motions and Civil Cases” against the clerk of the superior court and the court and the county.

       Representations made by Carter in his brief with respect to matters outside the record cannot be accepted. Leatherwood v. State, 212 Ga. App. 342 (1) (a) (441 SE2d 813) (1994).

       Ga. Const., Art. I, Sec. I, Par. I.

       See OCGA § 5-6-41 (f); Leatherwood v. State, supra.

        Dobbins v. Dobbins, 234 Ga. 347 (1) (216 SE2d 102) (1975).

        State of Ga. v. Moseley, 263 Ga. 680, 682 (3) (436 SE2d 632) (1993); Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 413 (3) (321 SE2d 330) (1984).

        Morrow v. Vineville United Methodist Church, 227 Ga. App. 313, 316 (1) (489 SE2d 310) (1997), quoting Hart v. Owens-Illinois, Inc., 165 Ga. App. 681, 682 (302 SE2d 701) (1983).

       See, e.g., Jones v. Townsend, 267 Ga. 489 (480 SE2d 24) (1997) (approving statutory-procedures — OCGA §§ 42-12-4 through 42-12-9 —. for curbing frivolous or malicious prisoner litigation and placing financial costs on prisoners); Bd. of Commrs. of Morgan County v.
        Winslow, 862 P2d 921, 923-924 (II) (Colo. 1993) (court has duty and power to protect courts, citizens and opposing parties from repetitive, unfounded pro se litigation); Urban v. United Nations, 768 F2d 1497, 1499-1500 (III) (D.C. Cir. 1985) (court has obligation to protect and preserve sound and orderly administration of justice).

       OCGA §§ 51-7-80 through 51-7-85.

       OCGA § 9-15-14. See also OCGA § 9-15-15 (actions against judicial officers). Litigation expenses are awardable against defendants for bad faith, stubborn litigiousness or causing unnecessary trouble and expense. OCGA § 13-6-11.

       OCGA § 9-11-9.1. This differs from the instant requirement in that a court would not be qualified to make a medical judgment and thus must depend on an expert’s affidavit, whereas a court is well-equipped to make a legal judgment and need not delegate that decision to a lawyer. We do note that although not applicable to pro se complaints, when a party is represented by an attorney, the attorney must sign the pleading and thereby certify that the pleading is not interposed for delay. OCGA § 9-11-11.

       OCGA § 9-11-11.1.

        Giles v. Ford, 258 Ga. 245 (368 SE2d 318) (1988).

       OCGA § 9-15-2 (d).

        Howard v. Sharpe, 266 Ga. 771 (470 SE2d 678) (1996) (order requiring approval of habeas judge and certification that claims were novel before inmate could file any future lawsuits in forma pauperis was reasonable restriction in light of past pattern of filing frivolous lawsuits).

       226 Ga. App. 698, 699-700 (3) (487 SE2d 386) (1997).

        Howard, supra at 772 (1).

       See Urban v. United Nations, supra at 1500.

        Procunier v. Martinez, 416 U. S. 396, 419 (94 SC 1800, 40 LE2d 224) (1974).

       Preamble, Constitution of the State of Georgia.

        Howard v. Sharpe, supra at 772 (1), citing three decisions of the United States Supreme Court. Although Howard applied federal constitutional law, so fundamental a concept would likewise be inherent in the state constitution’s guarantee of due process.

        Howard, supra at 773 (1). In Howard, judicial preclearance was approved; in Carter’s cases, that task is assigned to a non-judicial officer of the court.

       Compare Procup v. Strickland, 792 F2d 1069 (11th Cir. 1986), which involves restrictions on pro se prisoner suits, as undue burden on constitutional right of access under federal constitution. See especially dissent of Circuit Judge Johnson.

       Id.

       Supra at 699.

        Ga. Receivables v. Williams, 218 Ga. App. 313 (1) (461 SE2d 280) (1995).

        Hood v. Carsten, 267 Ga. 579, 580 (481 SE2d 525) (1997). “ ‘The due-process clause does not guarantee to the citizen of a State any particular form or method of State procedure. Its requirements are satisfied if he has reasonable notice and opportunity to be heard and to present his claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.’ Reetz v. Michigan, 188 U. S. 505, 508 (47 L. Ed. 563, 566, 23 Sup. Ct. 390).” City of Macon v. Benson, 175 Ga. 502, 508 (4) (a) (166 SE 26) (1932).

       175 Ga. 779, 785 (166 SE 227) (1932).

        Nix v. Long Mountain Resources, 262 Ga. 506, 509 (3) (422 SE2d 195) (1992).

        Morgan County, supra at 924 (II).


author: Smith, Judge.

text:
    A98A1116.
    WINTERS et al. v. GOINS.
    (509 SE2d 361)
   Smith, Judge.

Merle and Ressie Winters appeal the trial court’s order granting Harold Lee Goins’s motion to dismiss for failure to timely perfect service. Because we conclude that the trial court failed to determine properly whether appellants used due diligence in serving their complaint, we vacate the trial court’s order dismissing the action and remand this case for further proceedings consistent with this opinion.

On August 7, 1995, appellants filed a complaint against Goins for personal injuries sustained by Ressie Winters in an automobile accident that occurred on August 10, 1993. The statute of limitation for filing such an action expired two years after the accident occurred. OCGA § 9-3-33. On August 28, 1996, appellants filed a motion requesting the court to direct service by publication. In support of the motion, they filed the affidavit of their attorney reciting that Goins had moved to North Carolina and that attempts to serve him there had been unsuccessful. The trial court granted this motion on September 5, 1996, and a notice of service by publication was filed one week later, September 12, 1996. Personal service on Goins was finally accomplished nearly six months later, March 3, 1997, in Kanawha County, West Virginia. Before service was perfected, Goins moved to dismiss on the basis of insufficiency of service of process and the running of the statute of limitation. In response, appellants contended that Goins was barred from raising defenses concerning timeliness of service, based on their assertion that, in exchange for an extension of time in which to answer, insurance company representatives stipulated that no such defense would be raised.

In its order granting Goins’s motion, the trial court made two findings, both of which are subjects of this appeal. The court ruled that any purported stipulation made by Goins’s insurance carrier was not binding on Goins. The court further ruled that appellants failed to find or serve Goins from September 21, 1995 to April 30, 1996, concluding that its earlier order (of September 5,1996) was not necessarily a finding of due diligence. Appellants appeal these rulings and contend additionally that they exercised due diligence in serving Goins.

1. We first address appellants’ contention that Goins was bound by two purported “stipulations.” A few days after the trial court entered its order permitting service by publication, a document was filed, signed only by counsel for appellants, reciting as follows: “Come now Merle and Ressie Winters and stipulate that Harold Lee Goins shall have sixty (60) days to file any answer from this date with the understanding that no defense with regard to timely service of summons and complaint shall be raised on his behalf.” Approximately three weeks later, appellants filed an “amended stipulation,” again signed only by their counsel, essentially reciting the same language found in the earlier “stipulation,” giving Goins sixty days to file an answer “with the understanding that no defense with regard to timely service of summons and complaint shall be raised on his behalf.”

Citing a number of cases, appellants correctly argue that parties entering stipulations are bound by those agreements. See, e.g., Crawford v. Crump, 223 Ga. App. 119, 122 (2) (476 SE2d 855) (1996); Macuch v. Pettey, 170 Ga. App. 467, 468 (317 SE2d 262) (1984). Indeed, “[pjarties to stipulations and agreements entered into in the course of judicial proceedings will not be permitted to take positions inconsistent therewith in the absence of fraud, duress or mistake.” (Citation and punctuation omitted.) McDaniel v. Oliver, 172 Ga. App. 109, 110 (322 SE2d 1) (1984). But appellants’ argument that the documents filed by their counsel constituted binding stipulations fails for several reasons.

First, Goins was not a party to these “stipulations.” Neither Goins, nor anyone on his behalf, signed the documents purporting to waive his right to raise certain defenses. We find no merit in appellants’ argument that the “stipulations” were executed at the request of Goins’s insurers on his behalf. They rely on a letter from one insurance representative to another, which states that defense counsel “filed for a 60 day extension for [the insurers] to answer.” This letter, as aptly argued by Goins, appears to be nothing more than “a single letter by one insurer to the other which simply recognizes the appellants’ own actions.” It does not reflect any “agreement” by Goins, or even by his insurers, to waive any defenses. Second, the documents are ambiguous as to who “understood” that Goins would not raise timely service as a defense: Goins or appellants. Third, the documents essentially were meaningless; at the time they were unilaterally executed by appellants’ counsel, no extension for time to answer was needed because Goins had not been personally served. The trial court did not err in ruling that the purported stipulations were not binding.

Decided November 16, 1998

Reconsideration denied December 3, 1998.

Middleton, Mixson, Orr & Adams, Mark A. Tate, John T. Dufour, for appellants.

Martin, Snow, Grant & Napier, Cubbedge Snow III, Thomas P. Allen III, Chambless, Higdon & Carson, Thomas F. Richardson, for appellee.

2. Appellants argue that the trial court erroneously concluded that its order permitting service by publication was not necessarily a finding of due diligence. This argument has merit.

“Even though service by publication is insufficient to confer in personam jurisdiction over defendant, by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. Thus, as of the date of the order granting the request for service by publication, the trial court found the plaintiff had been diligent in the attempt to locate defendant.” (Citations and punctuation omitted.) Smith v. Johnson, 209 Ga. App. 305, 306 (433 SE2d 404) (1993).

The question then becomes whether appellants exercised due diligence between the time the order permitting service by publication was granted and the time Goins was personally served. See generally Thomas v. Passenger, 211 Ga. App. 640, 641-642 (440 SE2d 228) (1994). We conclude that because the trial court did not rule on this issue, we are without authority to do so. “[T]his court cannot rule as a matter of law that [appellants were] not diligent in [their] efforts to serve [Goins] because no findings or conclusions were reached on this issue by the trial court. It is for the trial court to look at the facts of the case and ascertain whether [appellants were] guilty of laches. [Cit.]” Smith, supra at 306. Accordingly, we remand this case to the trial court to make a determination as to whether appellants were guilty of laches in attempting to locate and serve Goins after September 5, 1996.

Judgment vacated and remanded with direction.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: McMURRAY, Presiding Judge.

text:
    A98A1561.
    CITY OF COLLEGE PARK v. SHERATON SAVANNAH CORPORATION.
    (509 SE2d 371)
   McMURRAY, Presiding Judge.

The City of College Park (“the City”) filed this action against Sheraton Savannah Corporation (“Sheraton”) to recover for kitchen equipment it provided for use in a hotel which adjoins the Georgia International Convention and Trade Center (“the Civic Center”). The City alleges Sheraton refused to return the kitchen equipment after it purchased the hotel and now refuses to pay for it under the terms of the prior hotel proprietor’s 1983 kitchen lease agreement. Sheraton denied liability, moved for summary judgment and opposed the City’s motion for summary judgment, asserting that it leased the hotel’s kitchen area from the City in 1993 under an agreement which superseded the prior hotel proprietor’s 1983 kitchen lease agreement and does not require payment for the kitchen equipment.

The evidence, construed in a light most favorable to the City, reveals the following: During the early 1980s, the College Park Business & Industrial Development Authority (“the Authority”) financed and developed the Civic Center and the Civic Center’s adjoining hotel. Although the Authority owned both facilities, the Authority leased the Convention Center to the City and the hotel property to several limited partnerships. Because the hotel’s kitchen, meeting room and four ballrooms are on Civic Center property, the City subleased these areas (in six “facilities leases”) to different limited partnerships. The kitchen facilities lease was executed in 1983 between the City and Airport Hotel Associates #6, Ltd. (“Partnership 6”) and requires Partnership 6 to pay separate rent for the kitchen space and the kitchen’s equipment.

In the early 1990s, Sheraton expressed interest in purchasing the Civic Center hotel. During negotiations, Sheraton suggested consolidating the six facilities leases and posted a letter to the City’s attorneys which (according to Sheraton’s attorney) included “a red-lined copy” of a proposed consolidated lease indicating “the changes from the [facilities leases].” This representation, however, was not completely accurate as the proposed consolidated lease which Sheraton’s attorney mailed to the City’s attorneys did not highlight the absence of a rental payment obligation (as required by Partnership 6’s facilities lease) for the kitchen equipment. As a result, Sheraton purchased the hotel from the authority in 1993 and leased the kitchen area from the City under an “AMENDED, RESTATED AND CONSOLIDATED LEASE” (“the 1993 Amended Lease”) which did not include Sheraton’s assumption of Partnership 6’s equipment rental obligation. Sheraton thereafter refused the City’s demands to pay for or return the hotel’s kitchen equipment.

The trial court granted Sheraton’s motion for summary judgment, finding that the 1993 Amended Lease “replaced and superseded the 1983 facilities leases . . . and that as a matter of law the 1993 Amended Lease governs the claims now before the Court.” The trial court also found that, since the City “retained its own counsel to advise it in the transaction at issue[, there is,] as a matter of law, no basis for reformation of the 1993 Amended Lease based on the apparent unilateral mistake of the City.” The trial court concluded that “quantum meruit is not available as a remedy to the City because the 1993 Amended Lease governs the entire relationship between the parties regarding the leased facilities.” The trial court did not address the City’s claim for tortious conversion or the City’s assertion that Sheraton violated Georgia’s Racketeering Influenced & Corrupt Organizations Act.

This appeal followed entry of the trial court’s summary judgment order and a judgment dismissing the City’s complaint. Held:

1. Contrary to the City’s first enumeration of error, the trial court was not required to enter a more detailed summary judgment order. See OCGA § 9-11-56 (a); Fudge v. Colonial Baking Co. of Atlanta, 186 Ga. App. 582 (1) (367 SE2d 814).

2. Although Sheraton assumed Partnership 6’s 1983 kitchen lease when it purchased the hotel, Sheraton’s 1993 “AMENDED, RESTATED AND CONSOLIDATED LEASE” with the City provides that “[t]here are no representations, covenants, warranties, promises, agreements, conditions or undertakings, oral or written, between [the City] and [Sheraton] other than herein set forth.” This agreement also provides that the City entered a kitchen lease with Partnership 6 on September 1, 1983; that this lease was assigned to Sheraton “as of the date hereof, and [that] the parties wish to amend, restate and consolidate the Prior Leases[, including Partnership 6’s kitchen lease,] in the form of this Lease[.]” These provisions clearly and unambiguously express the parties’ intent for the 1993 Amended Lease to supersede all of the facilities leases — including Partnership 6’s 1983 kitchen lease. We, therefore, affirm the trial court’s finding that the 1993 Amended Lease replaced and superseded Partnership 6’s 1983 kitchen lease. Accordingly, since it is undisputed that the 1993 Amended Lease does not require Sheraton to pay rentals for the hotel’s kitchen equipment, the trial court did not err in granting Sheraton’s motion for summary judgment and denying the City’s motion for summary judgment with regard to the City’s breach of contract claim. “Where no matter of fact is involved, the construction of a plain and definite contract, if needed, is a matter of law for the court.” Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84).

3. The City contends that Sheraton’s attorney’s allegedly deceptive letter to the City’s attorneys (regarding the “redlined copy” of Sheraton’s proposed consolidated lease), along with proof that Sheraton’s law firm represented the City during an earlier stage of the Civic Center project, raises genuine issues of material fact as to the sort of misplaced confidence and fraud which would authorize reformation of the 1993 Amended Lease. See OCGA § 23-2-29. We do not agree. While a fiduciary bond may remain between the City and Sheraton’s law firm as a result of a prior attorney-client relationship, any possible violation of this bond provides no basis for reforming the 1993 Amended Lease because there is no indication that Sheraton was a party to its attorney’s alleged duplicity.

“Reliance upon the representations made by the other party is not grounds for cancellation, reformation or the defeat of an action based on the contract absent proof of emergency, fraud or a fiduciary or confidential relationship with the party making the representation. Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58 (239 SE2d 381) (1977).” Malin v. Servisco, Inc., 172 Ga. App. 418 (1) (323 SE2d 278). Since there is no proof in the case sub judice of an occurrence of some type which prevented the City from reading the 1993 Amended Lease before the City executed this document, the trial court did not err in granting Sheraton’s motion for summary judgment with regard to the City’s equitable reformation claim.

4. The City next contends the trial court erred in granting Sheraton’s motion for summary judgment as to its quantum meruit claim. We agree. When a party deliberately retains property which is valuable to another and there is no contract for the property, a promise is implied to pay in quantum meruit. See OCGA § 9-2-7, and Stowers v. Hall, 159 Ga. App. 501, 502 (3) (283 SE2d 714). Sheraton argues that quantum meruit recovery is not available in the case sub judice because the 1993 Amended Lease governs its obligations to the City. This argument is belied by the undisputed fact that the City’s kitchen equipment is not mentioned in the 1993 Amended Lease. Sheraton also argues that the trial court properly disposed of the City’s quantum meruit claim because the City failed to prove that Sheraton was in possession of any of the disputed kitchen equipment.

Although the City has not proved the existence of each and every item of kitchen equipment that remained in the hotel’s kitchen area when Sheraton took possession of the premises, there is proof that the City equipped the hotel’s kitchen in 1983 at a cost of $400,000. This evidence, and the absence of proof that this equipment was removed from the hotel’s kitchen before Sheraton took possession of the premises, raises genuine issues of material fact as to the City’s right to recover in quantum meruit for whatever equipment remains.

Decided November 16, 1998

Reconsideration denied December 3, 1998.

Glaze & Glaze, Kirby A. Glaze, Thomas M. Conway, Bruce R. Vail, for appellant.

Sutherland, Asbill & Brennan, John H. Fleming, Rebecca L. Burnaugh, for appellee.

5. We also hold that the disputed facts and the City’s unchallenged pleadings in the case sub judice raise genuine issues of material fact as to the City’s claim for tortious conversion. “In an action for conversion, proof of title to the property in the plaintiff, right of possession in the plaintiff, possession in the defendant, demand for possession, refusal to surrender, and value of the property,. . . make a prima facie case. [Cits.]” Buice v. Campbell, 99 Ga. App. 334, 335 (3) (108 SE2d 339).

6. The City offers no citation of authority or meaningful argument in support of its claim that the trial court erred in granting Sheraton’s motion for summary judgment as to the City’s claim under Georgia’s Racketeering Influenced and Corrupt Organizations Act. Accordingly, this assertion is deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2). Martin v. State, 179 Ga. App. 551, 555 (8) (347 SE2d 247).

Judgment affirmed in part and reversed in part.

Blackburn and Eldridge, JJ., concur.


text:
    A98A1035.
    PHILLIPS v. KEY SERVICES, INC. et al.
    (510 SE2d 304)
   Ruffin, Judge.

Bruce Phillips sued Key Services, Inc. (“KSI”) and Howard Blair, its president and principal shareholder, for breach of contract and for conversion after Phillips was terminated from KSI. KSI and Blair filed a joint motion for partial summary judgment on the issue of whether Phillips had been terminated from KSI for cause. The trial court granted the motion, and Phillips appeals. For reasons which follow, we reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). If a defendant, as the moving party, shows “that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a . . . genuine issue as to any essential element of the plaintiff’s claim,” then the plaintiff, as the non-moving party, “cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Emphasis supplied.) Id. “In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence.” Eastside Properties v. Dept. of Transp., 231 Ga. App. 217 (498 SE2d 769) (1998).

Viewed in a light most favorable to Phillips as the nonmovant, the record shows that KSI is a corporation of which Blair was the sole shareholder. In 1987, Blair hired Phillips as KSI’s sales manager. At the time Phillips was hired, he told Blair that he hoped eventually to become the majority owner of KSI. They discussed Phillips’ intentions several times over the course of his employment with KSI. In addition, they discussed selling a percentage of Blair’s stock in KSI to Phillips.

On December 20, 1990, Blair and Phillips executed an Employment Agreement and a Stock Purchase and Buy-Sell Agreement (“Buy-Sell Agreement”) to formalize their discussions. According to the Buy-Sell Agreement, Blair agreed to sell ten percent of his KSI stock to Phillips and to transfer an additional twenty percent of KSI stock in May 1992 if certain performance standards were met. In the event Phillips was terminated, the Buy-Sell Agreement required Phillips to sell back his KSI stock either to Blair or to KSI. If Phillips was terminated for good cause, the value of his stock would be calculated based upon the lesser of the fair market value or the book value. However, if Phillips was not terminated for cause, the value of his stock would be calculated based upon the greater of the fair market or book value. Under Phillips’ employment contract, KSI would have good cause to terminate Phillips “if, in the determination of the Board of Directors of the Company, [Phillips] has engaged in conduct or activities materially damaging to the business of the Company (it being understood, however, that neither conduct nor activities pursuant to [Phillips’] exercise of his good faith business judgment . . . shall be a ground for such determination by the Board of Directors of the Company).”

After the agreements were signed, Phillips continued to discuss with Blair his desire to purchase a controlling interest in KSI. However, negotiations between Blair and Phillips did not begin in earnest until 1995, when Phillips obtained financial backing from an investment group. In the beginning of December 1995, Phillips told Blair that, if the negotiations were not successful, he intended to resign.

In February 1996, Phillips suspected Blair was not negotiating in good faith for the sale of KSI. In addition, he believed he was in danger of losing his financial backers. In order to bring matters to a head, on February 5, 1996, Phillips tendered his resignation, which provided that his last day at work would be March 8,1996. According to Phillips, Blair asked him to reconsider resigning and asked him not to break off negotiations for the purchase of KSI.

When Phillips tendered his February 5 resignation, John Alexander, marketing manager for KSI, tendered his resignation as well. Although Alexander was not involved in Phillips’ attempt to purchase KSI, Alexander supported Phillips’ efforts. At the time Alexander gave two weeks notice, he was in the final stages of completing a bid proposal for a project for the Centers for Disease Control (CDC). However, Blair asked Alexander to leave immediately. Phillips asked Blair to reinstate Alexander because he needed his help in completing the CDC bid. Blair refused. Nevertheless, Alexander continued to work on the project with Phillips at Phillips’ home. Phillips agreed to pay Alexander a five percent commission for completing the project, but Alexander subsequently renounced any right to a commission.

On February 9, 1996, Phillips presented Blair with a final offer for the purchase of KSI. Since Phillips and his financial backers considered Alexander to be a key employee at KSI, they required that he be reinstated as part of the sales agreement, but Blair refused. Blair acknowledged that requiring reinstatement of Alexander was the “deal killer.”

On February 13, 1996, after the deal fell through, Phillips left a note for Blair advising him that his February 5 resignation still stood and that he was taking several days of vacation. Phillips also left Blair a copy of the CDC bid proposal which Phillips contends was 90 percent complete. Upon returning from vacation, Phillips planned to complete the bid proposal.

Upon receiving Phillips’ February 13 note, Blair acknowledged he became “disappointed, upset [and a] little angry.” He immediately decided to terminate Phillips “for cause.” He called an emergency meeting of the Board of Directors (consisting of him and his wife) to formalize the decision to terminate Phillips. However, Blair stated he “made the decision on [his] own. It didn’t need to go to the director’s meeting.”

In two enumerations of error, Phillips contends the trial court erred in granting partial summary judgment on the issue of whether he was terminated for cause. The trial court found that, pursuant to the December 1990 employment agreement, KSI’s “Board of Directors determined that [Phillips’] conduct justified a termination for good cause.” As with any contract, however, “this contract imposed upon each party a duty of good faith and fair dealing in the performanee and completion of their respective duties and obligations.” Toncee, Inc. v. Thomas, 219 Ga. App. 539, 543 (4) (466 SE2d 27) (1995). In ruling in favor of the movants, the trial court found that Phillips failed to come forward with sufficient evidence to support a finding that the Board of Directors, in terminating him for cause, was not acting in good faith. We disagree.

In motions for summary judgment, a defendant, as the movant, can prevail by showing that no jury issue exists regarding an essential element of the plaintiff’s claim. Lau’s Corp., supra. However, the plaintiff, as the nonmovant, “will survive summary judgment by presenting any evidence which establishes a jury issue regarding that element. Even slight evidence will be sufficient to satisfy the plaintiff’s burden of production of some evidence on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from evidence presented.” (Citations omitted; emphasis in original.) Garrett v. NationsBank, 228 Ga. App. 114, 115-116 (491 SE2d 158) (1997). In the present case, we are persuaded that Phillips presented sufficient evidence of bad faith to survive summary judgment.

As an initial matter, we note that both the appellees and the trial court place significance on the fact that the decision to terminate Phillips was made by the Board of Directors. We have previously noted that it can be difficult to infer lack of good faith on the part of decision-makers when numerous people were involved in making the decision. See, e.g., Johnson v. Auto/Mend, 183 Ga. App. 311, 312 (359 SE2d 10) (1987) (summary judgment appropriate where six board members averred that they terminated an employee based on a good faith determination that the termination was in the best interest of the company). In this case, however, Blair made the decision to terminate Phillips and acknowledged that the Board of Directors’ meeting was superfluous. Consequently, we look to Blair’s actions in determining whether the Board acted in good faith.

Blair decided to terminate Phillips immediately after Phillips tendered his February 13 letter of resignation. We note that by resigning, Phillips triggered the provision in the Buy-Sell Agreement that required either Blair or KSI to repurchase Phillips’ stock in KSI. The purchase price of the stock would decrease if Phillips was fired for cause. In other words, Blair and KSI stood to gain financially by terminating Phillips for cause before the effective date of his resignation.

Moreover, the evidence, construed in Phillips’ favor, supports an inference that Blair’s stated reasons for terminating Phillips were contrived. According to Blair, his decision to terminate Phillips was based, in part, on “Phillips’ activity ... in attempting to take over the Company by means of heavy-handed power plays and threats.” However, the record shows that Blair knew about Phillips’ desire to take over KSI from the time he hired him. Moreover, despite any allegedly damaging effects “takeover” negotiations had on the company, Blair willingly negotiated with Phillips for the sale of KSI.

Decided December 3, 1998.

Smith, White, Sharma & Halpern, Furman Smith, Jr., for appellant.

Powell, Goldstein, Frazer & Murphy, W. Scott Sorrels, James B. Richardson, for appellees.

Blair claims that he terminated Phillips because of “threats” Phillips made. However, despite Phillips’ threat to resign if settlement negotiations were not successful, the record reveals that while Phillips made this threat in early December, he was not actually fired until mid-February. Moreover, when Phillips first tendered his resignation on February 5, 1996, Blair made no move to fire him based on any implied threat. It was only after Phillips reiterated his decision to resign eight days later that Blair called for his termination for cause.

Blair also contends that Phillips was terminated for “disrupting the morale of the Company’s employees.” In support of this contention, Blair provided affidavits from three current employees of KSI who stated that Phillips’ efforts to purchase the company were disruptive and had a negative impact on morale. However, any such disruption on Phillips’ part did not stop Blair from continuing to negotiate with Phillips for the sale of KSI.

Finally, Blair asserts that Phillips’ abandonment of his work warranted his termination for cause. Specifically, Blair testified in his deposition that KSI’s sales were declining and that Phillips failed to meet his obligations with regard to completing the CDC bid. On the other hand, Blair acknowledged that although the number of sales declined, revenues had increased during Phillips’ tenure. With regard to the CDC bid, it is undisputed that, despite Phillips’ alleged abandonment of the project, the bid was completed in time and KSI was a finalist on the project.

Based on the foregoing, we find that there is some evidence from which a jury could infer lack of good faith on the part of Blair in terminating Phillips. Therefore, the trial court erred in granting partial summary judgment on the issue of whether Phillips was fired for good cause.

Judgment reversed.

Pope, P. J, and Beasley, J, concur.