author: Miller, Judge.

text:
    A11A2025.
    A11A2026.
    UNION CARBIDE CORPORATION et al. v. FIELDS et al. KUHLMAN ELECTRIC CORPORATION v. FIELDS et al.
    (726 SE2d 521)
   Miller, Judge.

This appeal arises from a pending products liability lawsuit that plaintiffs/appellees Rhonda and Gary Fields filed against a number of manufacturers, suppliers, and sellers of certain asbestos-containing products, including defendants/appellants Union Carbide Corporation (“Union Carbide”), Georgia-Pacific, LLC (“Georgia-Pacific”), CBS Corporation, a Delaware Corporation, f/k/a Viacom, Inc., Successor by Merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation (“CBS-Westinghouse”), and Kuhlman Electric Corporation (“Kuhlman”) (collectively, “Defendants”). The Fieldses moved for partial summary judgment on the issue of nonparty fault, seeking to preclude Defendants from presenting the potential fault of numerous nonparty entities for purposes of apportioning Defendants’ potential damages. The trial court granted the Fieldses’ motion. Union Carbide, Georgia-Pacific, and CBS-Westinghouse appeal this ruling in Case No. A11A2025; Kuhlman appeals the same partial summary judgment ruling in Case No. A11A2026. As Kuhlman’s appeal in Case No. A11A2026 presented the same issue for review, this Court granted Kuhlman’s motion to consolidate with Case No. A11A2025. Union Carbide also includes an additional enumeration of error in Case No. A11A2025, in which it challenges the denial of its motion for summary judgment on the grounds that the Fieldses failed to present admissible expert testimony establishing that Union Carbide’s product was the cause of Mrs. Fields’ mesothelioma. For the foregoing reasons, we (1) affirm the grant of the Fieldses’ motion for partial summary judgment and (2) affirm the denial of Union Carbide’s motion for summary judgment.

The standards for reviewing summary judgments are settled. Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law.... Where a... [moving party] discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010).

Moreover, on appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Gallagher v. Buckhead Community Bank, 299 Ga. App. 622, 623 (683 SE2d 50) (2009).

So viewed, the record shows that Mrs. Fields allegedly contracted peritoneal mesothelioma as a result of her childhood exposure to asbestos dust from various sources. These sources included her father’s work clothing — the Fieldses allege that her father was exposed to asbestos-containing products during his 1966 to 1988 employment with Georgia Power Company. Another alleged source of exposure was a joint compound product used in the 1973 construction of Mrs. Fields’ family home. The Fieldses also asserted that Mrs. Fields was exposed to asbestos from her family’s performance of automotive brake work. In their complaint, the Fieldses alleged that Defendants, along with a number of other companies, were responsible for either mining, manufacturing, processing, importing, converting, compounding, selling, or distributing the asbestos-containing products to which Mrs. Fields was exposed.

1. Fieldses’ Motion for Partial Summary Judgment. In their respective answers, each Defendant in this case affirmatively pled the defense of nonparty fault, seeking to attribute fault to nonparties to the litigation instead of themselves. Pursuant to a 2005 amendment, Georgia law permits the allocation of fault to a nonparty for purposes of apportioning damages among the named defendants. See OCGA § 51-12-33 (c) (“In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.”); see also Custer v. Terex Corp., 196 Fed. Appx. 733, 737-738 (III) (A) (1) (11th Cir. 2006) (noting that subsection (c) of OCGA § 51-12-33 amended Georgia’s comparative negligence statute to permit the allocation of fault to a nonparty). “Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties,” and findings of fault against a nonparty “shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.” (Punctuation omitted.) OCGA § 51-12-33 (f) (1), (2). Thus, under this State’s statutory scheme, the effect of a successful nonparty defense is the reduction of the plaintiff’s potential award and the defendant’s possible liability. As with other affirmative defenses, Defendants have the burden at trial to prove the defense of nonparty fault. Cf. Hodge v. SADA Enterprises, 217 Ga. App. 688, 691 (2) (458 SE2d 876) (1995) (indicating that a defendant has the burden at trial to prove affirmative defenses of contributory and comparative negligence).

Here, as required by OCGA § 51-12-33 (d), Defendants filed their respective notices of nonparties at fault. The Fieldses moved for partial summary judgment regarding Defendants’ nonparty defense as it pertained to 51 entities designated in Defendants’ notices. The Fieldses asserted that the Defendants had failed to produce any evidence creating a jury question as to whether these nonparties were responsible for any asbestos-containing products to which Mrs. Fields was exposed. The trial court granted the Fieldses’ motion with respect to 45 specific entities, as well as any other nonparty identified or described in Defendants’ notices of nonparty fault; as a result, the jury will be precluded from assessing the potential fault of these nonparties for the purposes of apportioning damages among Defendants. Defendants appeal the trial court’s ruling only with respect to the following 16 nonparty entities: Georgia Power Company (“Georgia Power”); Ford Motor Company (“Ford”); Genuine Parts Company (“Genuine Parts”); Chrysler LLC (“Chrysler”); General Motors (“GM”); Central Moloney, Inc. (“Central Moloney”); Nehring Electrical Works Company (“Nehring”); Phelps Dodge Cable & Wire (“Phelps Dodge”); Southern States LLC (“Southern States”); Southwire Company (“South-wire”); Asbestos Corporation Ltd. (“Asbestos Corp.”); Atlas Asbestos (“Atlas”); Johnson Mines; Keasby & Mattison (“Keasby”); Nicolet Industries (“Nicolet”); and Pacific Asbestos.

At the summary judgment stage, the Fieldses, as the moving parties, had the initial burden of piercing Defendants’ affirmative defense, including that of nonparty fault. See Clay v. Oxendine, 285 Ga. App. 50, 56 (1) (645 SE2d 553) (2007). The burden then shifted to Defendants to set forth facts showing that there was a genuine issue for trial. Id. ‘Where the evidence of record pierced appellants’ defensive pleadings and appellants failed to demonstrate that any issue of fact remains with regard to those defenses, it was not error to grant appellees summary judgment for any reasons urged on appeal.” (Citation and punctuation omitted.) Id.

(a) Georgia Power. Defendants assert that it was error for the trial court to grant the Fieldses’ summary judgment motion as to nonparty Georgia Power, asserting that even if Georgia Power owed no legal duty to Mrs. Fields, it could still be at fault for purposes of apportioning damages under OCGA § 51-12-33 (c). We disagree.

Pursuant to OCGA § 51-12-33 (c), “the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” This Court recently applied this statute in Barnett v. Farmer, 308 Ga. App. 358, 362 (2) (707 SE2d 570) (2011), and held that the negligence of a nonparty was properly considered where there was evidence from which the jury could conclude that both the nonparty and the defendant were negligent, despite the fact that the nonparty was immune from suit and could not be named as a party. Here, however, Defendants cannot present any evidence from which a jury could conclude that Georgia Power was at fault. Georgia Power was the entity that employed Mrs. Fields’ father during the relevant time period. And in Georgia, an employer owes no “duty of care to a third-party, non-employee, who comes into contact with its employee’s asbestos-tainted work clothing at locations away from the workplace.” CSX Transp. v. Williams, 278 Ga. 888, 891 (608 SE2d 208) (2005). “In the absence of a legally cognizable duty, there can be no fault or negligence.” (Citation omitted.) Ford Motor Co. v. Reese, 300 Ga. App. 82, 84 (1) (a) (684 SE2d 279) (2009). Thus, Georgia Power bore no “fault” that could be assessed under OCGA § 51-12-33, and it was proper to grant summary judgment on Defendants’ nonparty defense as it pertained to Georgia Power.

(b) Ford and Genuine Parts. Defendants assert that it was error for the trial court to grant summary judgment on their nonparty defense as it pertained to the potential fault of Ford and Genuine Parts. Defendants specifically contend that (i) settled entities should be automatically included on the verdict form for purposes of apportioning fault among defendants; or in the alternative, (ii) they presented sufficient evidence to survive summary judgment on their nonparty defense as it pertained to the potential fault of Ford and Genuine Parts.

(i) Pursuant to OCGA§ 51-12-33 (d) (1), the “[n]egligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.” According to Defendants, the language of OCGA§ 51-12-33 (d) (1) “singles out settled parties” and requires the automatic consideration of their fault for purposes of apportioning damages among Defendants. Defendants’ interpretation of the statute is erroneous. See Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (“Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.”) (citation omitted); ALLTEL Ga. Communications Corp. v. Ga. Public Svc. Comm., 270 Ga. 105, 107 (505 SE2d 218) (1998) (viewing statute “as a whole to construe all parts of a statute together to make all its parts harmonize”) (citation, punctuation and footnote omitted). By its plain terms, a nonparty’s fault “shall be considered” in either of the two situations — either where the nonparty has settled with the plaintiff or where the nonparty has been identified by the defendant in a timely and proper notice of fault. See OCGA § 51-12-33 (d) (1). Moreover, when OCGA § 51-12-33 (d) (1) is read together with OCGA § 51-12-33 (c), a defending party still must show that a settled entity “contributed to the alleged injury or damages” before its fault can be assessed by a trier of fact. Otherwise, there would be no basis for the apportionment of fault between the settled entity and the defendant. See McReynolds v. Krebs, 307 Ga. App. 330, 334 (1), 335 (3) (705 SE2d 214) (2010) (rejecting defendant’s contention that trier of fact should have apportioned damages between her and a settled party where the defendant presented no evidence on which apportionment of liability could be based and thus waived any issue with regard to the verdict form). We therefore decline to interpret OCGA§ 51-12-33 (d) (1) as requiring a trier of fact to automatically consider the potential fault of a settled entity.

Defendants nevertheless contend that the trial court’s refusal to automatically include settled entities on the verdict form will lead to impermissible double recovery. We disagree. If a settled entity is not included on the verdict form because there was no evidence that the settled entity in fact contributed to the plaintiff’s injury, then it cannot be said that a plaintiff will have received double recovery for that injury. See Broda v. Dziwura, 286 Ga. 507, 509 (689 SE2d 319) (2010) (“Basic fairness and justice dictate that a tortfeasor should not benefit from a plaintiff’s good fortune in reaching settlements with other potential defendants not determined to be liable.”) (citation and punctuation omitted).

(ii) Defendants alternatively contend that they presented sufficient evidence to defeat the Fieldses’ motion for partial summary judgment with respect to Ford and Genuine Parts. Again, we disagree.

As explained in the above subdivision, the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact “contributed to the alleged injury or damages.” OCGA § 51-12-33 (c). Given this focus on the concept of causation in OCGA § 51-12-33 (c), we turn to the causation standards imposed upon a plaintiff in an asbestos product liability case. Under Georgia law,

the threshold for every theory is proof [i.e., strict liability or negligence] that an injured plaintiff was exposed to asbestos-containing products for which the defendant is responsible. That is, the plaintiff must present evidence that a particular defendant’s asbestos-containing product was used at the job site and that the plaintiff was in proximity to that product at the time it was being used.

(Citation, punctuation and footnotes omitted.) Hoffman v. AC&S, Inc., 248 Ga. App. 608, 611 (2) (548 SE2d 379) (2001); accord Adamson v. Gen. Elec. Co., 303 Ga. App. 741, 744 (3) (694 SE2d 363) (2010) (“To survive summary judgment, the appellant needed to present evidence that the manufacturer defendants’ asbestos-containing product was used at the location of [the plaintiff’s] employment and that he was in proximity to that product at the time it was being used.”) (citation and punctuation omitted). “A plaintiff may testify to this information from personal knowledge; he may also meet this burden other ways, including by offering the testimony of a co-worker who can identify the plaintiff by name as having worked with or around a particular defendant’s asbestos-containing products.” (Citation and punctuation omitted.) Adamson, supra, 303 Ga. App. at 744 (3). Beyond this threshold requirement, a plaintiff must also make a showing of specific causation, i.e., whether a substance caused a particular individual’s injury. Butler v. Union Carbide Corp., 310 Ga. App. 21, 25 (1), 31 (2) (712 SE2d 537) (2011). “Absent reliable expert testimony that exposure to a [company’s] product contributed to the development of [plaintiff’s] mesothelioma, there is insufficient evidence to create a jury issue as to causation.” (Footnote omitted.) Id. at 30 (2).

In response to the Fieldses’ motion for summary judgment, Defendants point to deposition testimony showing that Mrs. Fields was exposed to brake work performed on her family’s vehicles, and that some of the vehicles were manufactured by Ford. Despite Mrs. Fields’ lack of knowledge as to whether asbestos was contained in any vehicles or products utilized during her family’s brake work, Defendants rely upon testimony of the Fieldses’ expert, who identified brake work by Mrs. Fields’ father as one source of her asbestos exposure.

Defendants’ designated evidence, however, does not show whether Mrs. Fields was exposed to any Ford vehicles or Genuine Parts products that in fact contained asbestos. See Hoffman, supra, 248 Ga. App. at 611 (2). Nor do Defendants specify any evidence showing that either Ford or Genuine Parts manufactured or supplied products that contributed to the development of Mrs. Fields’ mesothelioma. See Butler, supra, 310 Ga. App. at 25 (1). Defendants instead rely on an inference that Ford vehicles and Genuine Parts products contributed to Mrs. Fields’ mesothelioma. “When a party is relying on inferences to prove a point, not only must those inferences tend in some proximate degree to establish the conclusion sought, but must also render less probable all inconsistent conclusions.” (Citations and punctuation omitted.) Adamson, supra, 303 Ga. App. at 747 (3) (c). Here, however, Defendants’ evidence does not render less probable the possibility that Mrs. Fields was exposed solely to Ford and Genuine Parts nonasbestos products. Cf. id. at 746-747 (3) (b), (c) (“Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”) (citation and punctuation omitted). Thus, we conclude that Defendants failed to demonstrate that any issue of fact remained as to whether Ford or Genuine Parts contributed to the Fieldses’ injury or damages as was required to assess those entities’ potential fault under OCGA§ 51-12-33 (c). Therefore, it was not error to grant summary judgment on Defendants’ nonparty defense as it pertained to Ford and Genuine Parts.

(c) Chrysler and GM. Defendants likewise assert that there was sufficient evidence, in the form of deposition testimony, to defeat summary judgment on their nonparty defense as it pertained to the potential fault of nonparties Chrysler and GM. We disagree.

Defendants contend that the same evidence offered for the above-mentioned settled entities (Ford and Genuine Parts) establishes that Mrs. Fields was exposed to asbestos through her family’s brake work on vehicles that included those manufactured by Chrysler and GM. As with Ford and Genuine Parts, however, Defendants have not introduced any evidence to show whether the Chrysler and GM vehicles or products to which Mrs. Fields was allegedly exposed in fact contained asbestos. Defendants again rely on an inference that Chrysler and GM products contributed to Mrs. Fields’ mesothelioma; but the evidence does not render less probable the possibility that Mrs. Fields was exposed solely to Chrysler and GM nonasbestos products. Cf. Adamson, supra, 303 Ga. App. at 747 (3) (c) (“The appellant relies solely on an inference that [company’s] products constitute [d] a proximate cause of [the plaintiff’s] injury; and the evidence does not render less probable the possibility that [the plaintiff] worked solely with [the company’s] nonasbestos products.”) (footnote omitted). Thus, Defendants failed to present evidence sufficient to create a triable issue of fact as to whether Chrysler or GM contributed to the Fieldses’ injury or damages as was required to assess those entities’ potential fault under OCGA§ 51-12-33 (c). The trial court did not err in granting partial summary judgment on Defendants’ nonparty defense as it pertained to Chrysler and GM.

(d) Central Moloney, Nehring, Phelps Dodge, Southern States, and Southwire. Defendants assert that they presented sufficient evidence, in the form of allegations contained in the Fieldses’ complaint and in Mrs. Fields’ sworn information form, to preclude summary judgment on their nonparty defense as it pertained to the potential fault of nonparties Central Moloney, Nehring, Phelps Dodge, Southern States, and Southwire. We disagree.

Defendants specifically point to the fact that the Fieldses named Central Moloney, Nehring, Southern States, and Southwire in their original complaint, and then alleged in their complaint that all named defendants manufactured or supplied products that exposed Mrs. Fields to asbestos. Defendants also rely upon allegations in Mrs. Fields’ sworn information form that she had been exposed to asbestos emanating from products manufactured by Central Moloney, Nehring, Phelps Dodge, Southern States, and Southwire.

As an initial matter, unverified allegations in a plaintiff’s complaint are generally not evidence for purposes of defeating summary judgment. See Jones v. City of Willacoochee, 299 Ga. App. 741, 742 (683 SE2d 683) (2009). Nor are allegations in a verified complaint. See Fletcher v. Hatcher, 278 Ga. App. 91, 93 (2) (628 SE2d 169) (2006) (“We do not consider the allegations in plaintiffs’ verified complaint to be evidence, because the verification therein was based on ‘the best of plaintiffs’ knowledge and belief.’ ”) (punctuation omitted). “As personal knowledge (not belief) is required in a verification for summary judgment purposes, plaintiffs’ complaint contains mere allegations and not sworn statements.” (Citation and footnote omitted.) Id. Mrs. Fields’ sworn information form is no different than a verification form submitted in support of a complaint — that is, Mrs. Fields’ form explicitly stated that the information contained therein was based upon the “best of her knowledge and belief.”

Moreover, even to the extent that Defendants could avail themselves of the foregoing allegations, see OCGA § 24-3-30, this evidence alone was not sufficient to defeat summary judgment on Defendants’ nonparty defense as it pertained to the potential fault of Central Moloney, Nehring, Phelps Dodge, Southern States, and Southwire. Notably, beyond the above-referenced allegations contained in the Fieldses’ complaint and in Mrs. Fields’ sworn information form, Defendants have not offered any evidence, expert or otherwise, showing that Mrs. Fields’ alleged exposure to these five nonparties’ products in fact contributed to the development of Mrs. Fields’ mesothelioma. See Butler, supra, 310 Ga. App. at 25 (1). Without any such specific causation evidence, Defendants failed to raise an issue of material fact as to whether these five nonparties may have in fact contributed to the Fieldses’ injury or damages as was required to assess those nonparties’ potential fault under OCGA § 51-12-33 (c). Therefore, it was not error to grant partial summary judgment on Defendants’ nonparty defense as it pertained to Central Moloney, Nehring, Phelps Dodge, Southern States, and Southwire.

(e) Asbestos Corp., Atlas, Johnson Mines, Keasby, Nicolet, and Pacific Asbestos. Defendants assert that there was sufficient evidence to defeat summary judgment with respect to their nonparty defense as it pertained to the potential fault of nonparties Asbestos Corp., Atlas, Johnson Mines, Keasby, Nicolet, and Pacific Asbestos. We disagree.

Defendants specifically point to record evidence showing that United States Gypsum Company (“U. S. Gypsum”) manufactured a joint compound product that contained asbestos, andthatMrs. Fields was exposed to asbestos dust from U. S. Gypsum’s joint compound during the construction of her family home. Defendants rely upon U. S. Gypsum’s interrogatory response, which identifies, among other companies, Asbestos Corp., Atlas, Johnson Mines, Nicolet, and Pacific Asbestos as companies known to have been approved suppliers of asbestos to U. S. Gypsum. Defendants contend simply that “[i]f Mrs. Fields was exposed to asbestos contained in the [U. S. Gypsum] joint compound, it is certainly reasonable to infer that she more than likely was exposed to the asbestos supplied by the respective non-parties.” As discussed above, however, “[w]hen a party is relying on inferences to prove a point, not only must those inferences tend in some proximate degree to establish the conclusion sought, but must also render less probable all inconsistent conclusions.” (Citation and punctuation omitted.) Adamson, supra, 303 Ga. App. at 747 (3) (c). Defendants have not succeeded in showing such here. Indeed, the same interrogatory response upon which Defendants rely also shows that the nonparties were among several other suppliers and that U. S. Gypsum lacked knowledge as to which company supplied the asbestos for each of U. S. Gypsum’s particular products, at which mines the raw asbestos was mined, or from which locations the asbestos was shipped. U. S. Gypsum’s interrogatory response also indicated that suppliers Atlas and Pacific Asbestos shipped only to California. Thus, Defendants’ evidence does not render less probable the possibility that neither Asbestos Corp., Atlas, Johnson Mines, Nicolet, nor Pacific Asbestos, as compared to U. S. Gypsum’s other asbestos suppliers, supplied the asbestos that U. S. Gypsum used to manufacture the joint compound product that was then utilized by the Fieldses in the construction of their family home. Thus, Defendants failed to demonstrate that any issue of fact remained as to whether these five nonparty entities contributed to the Fieldses’ injury or damages as was required to assess those entities’ potential fault under OCGA § 51-12-33 (c). Therefore, it was not error to grant summary judgment on Defendants’ nonparty defense as it pertained to Asbestos Corp., Atlas, Johnson Mines, Nicolet, and Pacific Asbestos.

2. Union Carbide’s Motion for Summary Judgment. Mrs. Fields was allegedly exposed to Union Carbide’s Calidria asbestos contained in certain joint compound products used in the 1973 construction of Mrs. Fields’ family home. The record evidence shows that from 1963 through 1985, Union Carbide mined and milled chrysotile asbestos and sold it under the trade name, “Calidria.” According to the record evidence, there are two major families of asbestos fiber — amphibole and serpentine. Chrysotile asbestos is in the serpentine family, and all other types of asbestos minerals are in the amphibole family. The record contains expert testimony reflecting that amphibole asbestos can cause mesothelioma. With respect to chrysotile asbestos, however, Union Carbide argued that there was a lack of scientific foundation showing that it can cause mesothelioma. Union Carbide thus moved under Daubert v. Merrill Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993), to preclude the Fieldses’ experts from testifying on that point. The trial court entered an order granting Union Carbide’s Daubert motion and prohibiting the Fieldses’ expert witnesses “from testifying as to their opinion that pure chrysotile asbestos can cause peritoneal mesothelioma.”

Union Carbide moved for summary judgment, asserting that the trial court’s Daubert order effectively excluded all of the Fieldses’ scientific evidence of specific causation. The trial court denied Union Carbide’s motion for summary judgment, finding that the scientific evidence appeared to show that chrysotile, when combined with other types of asbestos to which Mrs. Fields was exposed, could cause her mesothelioma. Union Carbide appeals. Concluding that there was sufficient evidence to create a jury issue as to causation, however, we affirm the trial court’s denial of summary judgment.

A defendant may obtain summary j udgment by showing that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.... Causation is an essential element of a toxic tort case, and proof of causation in such cases generally requires reliable expert testimony. Absent reliable expert testimony that exposure to a [company’s] product contributed to the development of [plaintiff’s] mesothelioma, there is insufficient evidence to create a jury issue as to causation.

(Punctuation and footnotes omitted.) Butler, supra, 310 Ga. App. at 30 (2).

Here, in opposition to Union Carbide’s motion for summary judgment, the Fieldses contended that despite the trial court’s Daubert order, a genuine issue of material fact still remained as to whether chrysotile asbestos, when combined with exposure to other asbestos fibers, can cause mesothelioma. The Fieldses rely on deposition testimony of their expert, opining that exposure to chrysotile and amphiboles together can cause an increased incidence of mesothelioma. The record also reflects affidavit testimony from Union Carbide’s expert stating that mesothelioma is caused by the total dose of asbestos, regardless of the fiber type, that the patient experiences.

Union Carbide attempts to overcome this evidence by arguing that there is no scientific foundation for the Fieldses’ purported “mixed exposure” theory of causation. To the extent that Union Carbide is contending that the Fieldses’ expert testimony on this point did not meet the reliability requirements of OCGA § 24-9-67.1 (b) and Daubert, however, the record does not show that Union Carbide raised this objection in the court below or that it was ruled upon by the trial court. Cf. Mays v. Ellis, 283 Ga. App. 195, 199 (2) (641 SE2d 201) (2007). Accordingly, Union Carbide cannot raise this issue on appeal. Cf. id. Significantly, it is the role of the trial court, and not this Court, to act as a gatekeeper in determining the admissibility of an expert opinion. See Burroughs v. Mitchell County, 313 Ga. App. 8, 14 (2) (b) (720 SE2d 335) (2011). Moreover, “we note that, under Daubert, disputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.” (Citation and punctuation omitted.) Mays, supra, 283 Ga. App. at 199 (2), n. 3.

Decided March 20, 2012

Reconsiderations denied April 12, 2012

Alston & Bird, William C. Massey, Evert, Weathersby & Houff, Ivan A. Gustafson, Frances L. Spinelli, Chilivis, Cochran, Larkins & Bever, John D. Dalbey, Nelson, Mullins, Riley & Scarborough, Lee Ann S. Anand, for appellants (case no. A11A2025).

Taylor, English & Duma, Alison M. Ballard, for appellant (case no. A11A2026).

Robert C. Buck, for appellee.

Union Carbide further contends that even assuming a “mixed exposure” causation theory was based on reliable expert testimony, there is no evidence that Mrs. Fields was exposed to amphibole asbestos. In support, Union Carbide points to the testimony of the Fieldses’ expert indicating that, based solely upon his review of the Fieldses’ allegations of exposure and not his own personal knowledge, this case appeared to be one involving chrysotile exposure. However, this testimony does not conclusively demonstrate the absence of a genuine issue of material fact. To the contrary, the Fieldses’ expert also testified that given the various sources of asbestos to which Mrs. Fields was exposed, it was “difficult for [him] to really sort out whether or not there was . . . mixed exposure or chrysotile only exposure.” “[S]uch contradictions go solely to the expert’s credibility, and are to be assessed by the jury when weighing the expert’s testimony.” (Punctuation and footnote omitted.) Thompson v. Ezor, 272 Ga. 849, 853 (2) (536 SE2d 749) (2000).

Thus, in light of the expert testimony that exposure to Union Carbide’s product, when combined with other asbestos fibers, could have contributed to Mrs. Fields’ mesothelioma, the Fieldses have demonstrated the existence of a genuine issue for trial as to causation. Therefore, the trial court properly denied Union Carbide’s motion for summary judgment.

Judgments affirmed.

Ellington, C. J., and Doyle, P. J., concur.

       We note that this Court granted General Electric Company’s motion to withdraw its appeal from Case No. A11A2025.

       OCGA§ 51-12-33 (d) provides as follows:
      (d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
      (2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

       That is, “[t]he notice shall he given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.” OCGA § 51-12-33 (d) (2).

       If it were otherwise, we agree with the appellees that there would he no limitation on the number of potential nonparties that a trial court would be required to include on the verdict form for purposes of assessing fault under OCGA § 51-12-33 (c).

       This sworn information form was included with the Fieldses’ complaint as is required by OCGA§ 51-14-7 in all asbestos claims.

       Each of these four entities was eventually omitted as a named defendant in the Fieldses’ subsequent amended complaints.

       We note that during the summary judgment hearing, Defendants also pointed to certain portions of Jerry Johnson’s (Mrs. Fields’ father) deposition testimony as additional evidence of fault on the part of nonparties Phelps Dodge and Southwire. However, while the designated testimony shows that Johnson may have used cable manufactured by Phelps Dodge, it does not demonstrate that Phelps Dodge made any asbestos-containing cable that in fact contributed to Mrs. Fields’ mesothelioma. Nor does the designated deposition testimony establish that Southwire manufactured any asbestos-containing cables that in fact contributed to Mrs. Fields’ mesothelioma.

       We note that the trial court’s Daubert ruling is not at issue on appeal.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A11A2054.
    In the Interest of J. C. W. et al., children.
    (727 SE2d 127)
   Boggs, Judge.

A mother appeals from a superior court order granting the petition of foster parents to terminate her parental rights with regard to her two-year-old twins, after the juvenile court had already issued an order placing custody of the twins with their maternal aunt and uncle until their eighteenth birthdays. The mother contends on appeal that (1) the superior court lacked jurisdiction; (2) the doctrine of res judicata barred the foster parents’ petition to terminate; (3) the legal custodians of the children should have been made parties to and received notice of the termination and adoption proceedings; and (4) the superior court erred by terminating her rights based upon sealed juvenile court orders unlawfully in the possession of the foster parents’ attorney. Based on our conclusion that the superior court lacked jurisdiction because the juvenile court had already taken jurisdiction of the issue, we vacate its order terminating the mother’s parental rights.

Juvenile Court Proceedings

The complicated procedural history of this case begins with the twins’ birth on February 10,2009. Shortly after their birth, the twins, along with their 16-month-old brother, were placed in DFACS’ temporary legal custody by the Juvenile Court of Fulton County. On March 22, 2009, the twins and their older brother were placed with the foster parents, who were not interested in adopting the children at that time. When the foster parents became overwhelmed by caring for three very young children, DFACS initially determined that it would move all three children to another home, but later decided to move only the older child to another home. The foster mother testified that the older child “had some disciplinary issues, you know, acting out.”

During a hearing on June 3, 2009, the mother stipulated to the deprivation petition filed by DFACS. On July 9, 2009, the juvenile court issued an order finding the children deprived based upon findings that the mother did not have adequate housing for herself and the children, that she did not have adequate income to support herself and the children, that the mother “has mental health issues,” that one of the twins was diagnosed “as failure to thrive,” that the mother allowed one of the twins to fall out of her lap causing visible physical injuries, and that the mother failed to cooperate with DFACS. The mother did not appeal the juvenile court’s deprivation order.

In April 2010, the maternal aunt and uncle learned that the twins were in DFACS custody and were asked to consider taking custody of the three children. After praying about it and discussing it with other members of the extended family, they agreed to take in the children. The home evaluation process began in April 2010, and the aunt and uncle were approved in October 2010.

DFACS began scheduling visits between the twins and their aunt and uncle in August 2010. Beginning in October, the aunt and uncle had two-hour visits that progressed into all-day, overnight, and then weekend visits. On November 5, 2010, the twins’ older brother was placed with them. The foster mother expressed to DFACS at some point during the visitations that she did not like the relatives and admitted being irritated that the mother was present during one of the twins’ visits with the aunt and uncle.

On August 10, 2010, DFACS moved to terminate the parental rights of both parents. Following a hearing on September 23, 2010, the juvenile court noted that the mother had complied with the following portions of her reunification plan: “the mother has completed the psychological evaluation, is participating in parenting classes, visits the children and participates in therapy.” It also noted, however, that “returning to the home would be contrary to the welfare of the children because the mother has not completed parenting classes and is without appropriate housing for herself and her children” and “has not provided verifiable documentation of employment or the means to provide for the financial needs of the children.” On October 8, 2010, the juvenile court scheduled DFACS’ petition for the termination of parental rights for a hearing on November 18, 2010.

On November 15, 2010, the foster parents moved to intervene in the juvenile court proceeding and sought custody of the twins based upon their intention to adopt following a termination of parental rights. On November 16, 2010, DFACS moved the juvenile court to cease all reunification efforts based upon a permanency plan to place all three children with the maternal aunt and uncle. In the motion, DFACS also took the position that “ [t] ermination of parental rights is not in the best interest of the children” based upon the permanency plan to place all of the children with fit and willing relatives. On the same date, DFACS petitioned the court to modify custody and place all three siblings with the aunt and uncle until their eighteenth birthdays. Neither of these petitions references a stipulation of nonreunification by the mother.

At the beginning of the hearing, the child advocate attorney asked the associate juvenile judge sitting “pro hac vice” for a continuance “so that Judge Hodges can hear the termination,” to which the associate judge responded “okay.” Counsel for DFACS then asked the judge to rule on the pending motion for nonreunification and modification of custody to the aunt and uncle. DFACS’ counsel declined to dismiss its pending petition to terminate parental rights, stating, “We’ll make that determination once the [cjourt has ruled on the motion for non-reunification and the petition to modify.” Counsel for the mother stated that she had “no objection to the motion for non-reunification,” and “stipulate[d] to the petition to modify custody” to the aunt and uncle.

Based on the mother’s consent, the juvenile court orally granted DFACS’ motion for nonreunification before ruling on the custody issues. The judge then declined to continue the custody issues until the juvenile judge who had been handling the case from the beginning could hear it. After hearing testimony from the foster mother and the maternal uncle on issues of custody only, the juvenile judge ruled from the bench and denied DFACS’ motion to modify custody of the twins to the aunt and uncle and granted custody of the twins to the foster parents over the objection of the mother and DFACS. It entered a written order to this effect on January 19,2011 at 3:01 p.m., which also relieved DFACS of custody over the twins. The associate judge hearing the motions on custody and nonreunification at no time issued a ruling on DFACS’ pending petition to terminate the parental rights, and evidence was not submitted on this issue.

In a written order entered the same day at 3:02 p.m., the judge found that “[t]he mother, through counsel, consented to the Motion [for nonreunification]. Based on the consent of mother through counsel, the [c]ourt finds that [the mother] of the . . . children, has failed to achieve the goals in the case plan designed to enable her to be reunited with her children.” After a recitation of facts concerning the mother’s fitness and conduct stated in the motion, for which no evidence was introduced in the hearing, the juvenile judge concluded that parental misconduct existed within the meaning of OCGA § 15-11-94 (b) (4) (A) (i)-(iv). It then concluded, that “non-reunification of these children with their parents is in their best interest. Therefore, reunification efforts by the Department shall cease, in accordance with OCGA § 15-11-58 (h). Custody of the children remains with [DFACS].” (Emphasis supplied.)

On January 13, 2011, the mother moved for rehearing under OCGA § 15-11-21 (e). The chief juvenile court judge granted the motion for rehearing on February 1, 2011. On February 28, 2011, the chief juvenile judge issued an 11-page order in which she conducted a de novo review under Uniform Juvenile Court Rule 19.2. In this order, the chief juvenile judge concluded

that it is not in the best interest of [the children] to be separated from their sibling by being placed with the foster parents, but it is in the best interest of all three children to be placed together which was the original plan of the Department when they placed all three children with the foster parents and they were separated only at the request of the foster parents.

Additionally, it concluded that “[b]y failing to adopt the permanency plan of the Motion for Non-Reunification, the court failed to give proper consideration to the agreement reached between the mother and the Department wherein the permanency plan was changed to placement with a fit and willing relative.” And, according to the chief juvenile judge, additional error resulted from the court hearing evidence on a motion to change custody to the foster parents when the nonreunification motion it had orally granted included a permanency plan for placement with the aunt and uncle. “When the court placed the twins with the foster parents, the mother did not get the benefit of her bargain and now risks losing the children forever as the foster parents wish to adopt.” Based on these findings, the chief juvenile judge vacated the associate juvenile judge’s January 19, 2011 order and awarded custody to the aunt and uncle under OCGA § 15-11-58 (i) until the twins’ eighteenth birthdays.

In In the Interest of J. C. W., 311 Ga. App. 894 (717 SE2d 512) (2011), we vacated the chief juvenile judge’s February 28, 2011 order based upon her failure to make a finding that “referral for termination of parental rights and adoption was not in the twins’ best interest.” See OCGA § 15-11-58 (i). After the case was remanded, the chief juvenile judge issued an order on October 21, 2011, in which she found that termination of parental rights would not be in the best interest of the children. On October 31, 2011, the child advocate attorney filed a notice of appeal from this order, and that appeal is now pending in this court as Case No. A12A1341.

Superior Court Proceedings

On December 15, 2010, following the oral grant of their request for custody, the foster parents filed a petition for adoption in Fulton County Superior Court that also sought termination of the mother’s parental rights. This petition was not served on DFACS or the aunt and uncle, and the foster parents did not obtain consent for the adoption from DFACS before filing it. See OCGA §§ 19-8-3 (b) and 19-8-13 (a) (2); Owen v. Watts, 303 Ga. App. 867, 869 (2) (695 SE2d 62) (2010).

On March 9, 2011, the foster parents sought termination of parental rights through a summary judgment motion relying upon certified copies of petitions and orders filed in the juvenile court. The superior court held a hearing on March 11, 2011, and issued orders the same day terminating parental rights and granting the foster parents’ petition for adoption of the twins. The order terminating parental rights was based upon the facts contained in the certified juvenile court records, not evidence submitted during the hearing. The juvenile court records reviewed by the superior court did not include any DFACS internal records, such as case plans or reports of any psychiatric assessments of the mother.

1. In this appeal, the mother asserts that the superior court lacked jurisdiction to rule on the foster parents’ petition to terminate. We agree.

OCGA§ 15-11-28 (a) (2) (C) provides that juvenile courts

shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action . . . [involving any proceedings ... [Qor the termination of the legal parent-child relationship . . . other than that in connection with adoption proceedings under Article 1 of Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship. . . .

Decided March 8, 2012

Reconsideration denied April 12, 2012

Janine M. Carson, for appellant.

In cases involving issues of concurrent jurisdiction between juvenile courts and superior courts, Georgia courts have repeatedly held that “the first court taking jurisdiction will retain it.” Segars v. State of Ga., 309 Ga. App. 732, 735 (710 SE2d 916) (2011). See also Breeden v. Breeden, 202 Ga. 740, 741 (6) (44 SE2d 667) (1947); Dunbar v. Ertter, 312 Ga. App. 440, 441 (718 SE2d 350) (2011); Long v. Long, 303 Ga. App. 215, 218-219 (692 SE2d 811) (2010). The policy behind this rule “is to keep down litigation and avoid a multiplicity of suits.” Hood v. Cooledge, 39 Ga. App. 476, 480 (147 SE 426) (1929).

The competing orders issued concerning the mother’s parental rights regarding the twins demonstrate the wisdom of this rule. The juvenile court has issued an order concluding that termination of the mother’s parental rights is not in the best interest of the children, and the superior court has entered an order reaching the opposite conclusion. Because it is undisputed that a termination petition was first filed in juvenile court, we conclude the superior court erred by exercising jurisdiction over the issue of termination. See Dunbar, supra; Segars, supra; Long, supra.

2. The remaining enumerations of error are rendered moot by our holding in Division 1.

Judgment vacated.

Mikell, P. J., and Dillard, J., concur.

James B. Outman, Diana R. Johnson, for appellee.

       After terminating the parental rights of both parents, the superior court granted the foster parents’ application for adoption of the twins.

       In the petition to which the mother stipulated, DFACS alleged that the mother suffers from schizophrenia and bipolar disorder.

       It appears that the mother initially instructed DFACS not to contact her family members because she wanted to be reunified with her children.

       The juvenile judge ordered that the twins’ older brother he placed with the aunt and uncle.

       This finding regarding DFACS’ custody contradicts the order entered one minute before that granted custody to the foster parents. The previous order stated that DFACS “is relieved of any further custodial responsibilities towards the children.”

       This rule provides:
      Arehearing of an associate judge’s order under OCGA § 15-11-21 (e) will be by a review by the juvenile court judge of the pleadings, recorded, electronic, or written transcript and evidence of the original proceeding to be obtained at the request and expense of the party appealing said ruling of the associate judge. The standard of proof for such review shall be the same as for the original case.

       It appears this ease was not assigned to a Family Division judge as required hy Fulton County Superior Court Family Division Case Management Rules 100-2, 100-3, and 400-1.

       The certified copies of the juvenile court records were provided to the foster parents’ counsel by the child advocate attorney who represented the children in juvenile court.

       Our opinion in Snyder v. Carter, 276 Ga. App. 426-427 (623 SE2d 241) (2005), does not require a different result because in Snyder, the termination petition was filed in juvenile court after a petition for termination and adoption was filed in superior court. The issue before us in Snyder was whether a pending deprivation proceeding precluded a superior court from exercising jurisdiction over the adoption and termination petition. Additionally, the Snyder court relied upon a decision, Edgar v. Shave, 205 Ga. App. 337 (422 SE2d 234) (1992), issued at a time when the superior court had exclusive rather than concurrent jurisdiction over termination petitions filed in connection with adoption. Snyder, 276 Ga. App. at 427. Compare OCGA § 15-11-5 (a) (2) (C) (1992) with current OCGA§ 15-11-28 (a) (2) (C).


author: Andrews, Judge. PHIPPS, Presiding Judge,

text:
    A11A2133.
    RITE AID OF GEORGIA, INC. v. PEACOCK et al.
    (726 SE2d 577)
   Andrews, Judge.

On appeal from the certification of a class in this action arising from its sale of customers’ medication information to another pharmacy, Rite Aid of Georgia, Inc. argues that the evidence does not support the trial court’s determination that plaintiff Richard Peacock and the class he seeks to represent meet the requirements of OCGA § 9-11-23 (a) and (b) (3). We agree and therefore reverse.

Plaintiffs have the burden of establishing their right to class certification, and we review the trial court’s decision in certifying or refusing to certify a class action for an abuse of discretion. Jones v. Douglas County, 262 Ga. 317, 323-324 (418 SE2d 19) (1992).

Although “we will not reverse the factual findings in a trial court’s class certification order unless they are clearly erroneous,” Village Auto Ins. Co. v. Rush, 286 Ga. App. 688 (649 SE2d 862) (2007), the facts relevant to this appeal are not in dispute. In anticipation of closing its Swainsboro pharmacy, and because the nearest other Rite Aid location was more than 40 miles away, Rite Aid sold the prescription records of more than 4,000 of its customers to a nearby Walgreens on August 27, 2008. Between August 16 and August 19, Rite Aid placed signs at the pharmacy entrance and on its counter to the effect that the Swainsboro location was closing and that all prescription information would be transferred to Walgreens. After the Swainsboro Rite Aid closed, Walgreens placed signs there and sent letters to Rite Aid customers regarding their ability to fill prescriptions at Walgreens.

On August 19, 2008, Richard Peacock, a detective with the Swainsboro Police Department, went to the Swainsboro Rite Aid to pick up a prescription for his wife. Employees informed Peacock that the store was closing and that his prescriptions would be transferred to Walgreens. Ten days later, and two days after the Swainsboro Rite Aid closed, Peacock went to Walgreens to fill a prescription. The Walgreens clerk had trouble opening Peacock’s prescription information and informed Peacock that he would need to go back to his doctor for a new prescription. Peacock refused, telling the clerk that “[t]he prescriptions were up to date” and were “sent to you from Rite Aid.” Walgreens resolved the problem, and Peacock received his prescription that day.

In February 2010, Peacock filed this action for breach of duty, breach of contract, and unjust enrichment in Emanuel County Superior Court, later amending his complaint to render it a class action. In April 2011, the trial court certified the class as consisting of “[a]ll Georgia residents who were customers of [Rite Aid’s] pharmacy in Emanuel County and whose pharmacy records were transferred by [Rite Aid] to Walgreens in 2008,” but excluding “any employees of [Rite Aid] and any employees of the Superior Court of Emanuel County.” On appeal, Rite Aid argues that the trial court erred when it found that the class had sufficient commonality, typicality, and adequacy of representation as required by OCGA § 9-11-23 (a) (2), (3), and (4), as well as the suitability required by OCGA § 9-11-23 (b) (3).

1. OCGA§ 9-11-23 provides:

(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) [t]he class is so numerous that joinder of all members is impracticable; (2) [t]here are questions of law or fact common to the class; (3) [t]he claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) [t]he representative parties will fairly and adequately protect the interests of the class.

(Emphasis supplied.) In determining whether a class action should proceed under OCGA § 9-11-23, “the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of OCGA § 9-11-23 (a) have been met.” McGarry v. Cingular Wireless, 267 Ga. App. 23, 25 (599 SE2d 34) (2004). When necessary, we look to federal as well as Georgia case law for guidance concerning the propriety of a class certification. Sta-Power Indus. v. Avant, 134 Ga. App. 952, 953-954 (216 SE2d 897) (1975).

The United States Supreme Court has recently explained the burden of proof facing a class representative as follows:

A party seeking class certification must affirmatively demonstrate his compliance with [Federal Rule of Civil Procedure 23 (a)] — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We [have] recognized . . . that sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 (a) have been satisfied----Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action. Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation.

(Emphasis supplied.) Wal-Mart Stores v. Dukes,_U. S._,_(II) (A) (131 SC 2541, 180 LE2d 374) (2011).

(a) Commonality. As Dukes also noted, “any competently crafted class complaint literally raises common questions.” (Citation and punctuation omitted.) Dukes, 131 SC at 2551. Thus the Supreme Court of Georgia has held that where federal regulations authorized the sending of junk faxes to some but not all recipients having an “established business relationship” with the sender, a trial court properly denied class certification for lack of commonality. Carnett’s, Inc. v. Hammond, 279 Ga. 125, 129 (4) (610 SE2d 529) (2005). The Carnett’s Court rejected plaintiffs’ assertion that a common question existed as to whether the solicitation by fax was wrongful:

[A] common question is not enough when the answer may vary with each class member and is determinative of whether the member is properly part of the class... . [T]he question of solicitation is both a merits question and a class question, and thus the trial court acted within its discretion in reaching it.

(Emphasis supplied.) 279 Ga. at 129 (4).

Thus a plaintiff seeking to represent a class must do more than draft a complaint; instead, he must show “that the class members ‘have suffered the same injury,’ [which] does not mean merely that they have all suffered a violation of the same provision of law.” (Emphasis supplied.) Dukes, 131 SC at 2551, quoting Gen. Telephone Co. &c. v. Falcon, 457 U. S. 147, 157 (102 SC 2364, 72 LE2d 740) (1982). This Court has likewise held that a class not sharing a common injury is not properly certified. In Doctors Hosp. Surgery Center v. Webb, 307 Ga. App. 44 (704 SE2d 185) (2010), for example, we reversed a trial court’s certification order concerning plaintiffs’ action for breach of contract, rescission, and negligence because the proposed class — patients arguably affected by a hospital’s failure to sterilize the instruments used in its colonoscopies — could not show that common injuries predominated over individualized ones. Id. at 48-49 (2); see also John E. King & Assoc. v. Toler, 296 Ga. App. 577, 578 (675 SE2d 492) (2009) (physical precedent only) (reversing certification of class pleading common injury from a chiropractic clinic’s referral of class members to personal injury attorneys on the ground that no injury resulting from the referral had been shown).

With these precedents in mind, we turn to the question whether the facts of this case present sufficiently common questions of fact and law as to whether Rite Aid committed any legally cognizable wrong when it sold the pharmacy records to Walgreens.

(i) Lack of Injury. Under OCGA § 26-4-80 (d), and although medication records are defined as “confidential,” they maybe released without the patient’s written consent to parties including the patient, his prescribing doctor or other licensed practitioners, and “another licensed pharmacist.” See also OCGA § 26-4-5 (5) (defining “confidential information” as including medication records which “may be released only to the patient or, as the patient directs,” to other professionals where, “in the pharmacist’s professional judgment, such release is necessary to protect the patient’s health and well-being”); Ga. Comp. R. & Regs. r. 480-16-.07 (d) (4) (medicationrecords may be released to “[a]nother licensed pharmacist for purposes of transferring a prescription or as a part of a patient’s drug utilization review, or other patient counseling requirements”). The trial court held without explanation that Rite Aid’s “single transaction” of selling its customers’ medication information to Walgreens resulted in “a common impact” on each class member.

Pretermitting whether the sale here violated the statutes quoted above or any other law, Peacock’s deposition testimony makes clear that although he felt that the sale of his prescription information to Walgreens was “illegal,” he could not say that he had suffered any actual financial or physical injury, including to his professional or personal reputation, as a result of that sale. Peacock also admitted that given his family’s medical needs, including his own continuing prescriptions for the antidepressants Xanax and Zoloft, he had chosen and might well continue to choose Walgreens as the only practical replacement for the closed Swainsboro Rite Aid.

This undisputed testimony establishes that even if the sale to Walgreens amounted to a violation of law, and whatever other plaintiffs might have suffered as a result, Peacock himself has suffered no injury from that sale. Peacock can only speculate that criminals he has had a hand in apprehending may associate with a Walgreens employee having access to his prescription information, given the absence of evidence that a Walgreens employee has harmed him or a member of his family by misuse of that information. Nor does it suffice to assert that the class may be able to recover nominal damages for breach of contract or fiduciary duty. Any contractual duty Rite Aid may have owed these class members would be based not on a single contract, but on some unspecified amalgam of the interactions between Rite Aid and each class member, including any privacy guidelines circulated to them, in the context of relevant statutes and regulations. As this Court held in Willett v. Russell M. Stookey, P.C., 256 Ga. App. 403 (568 SE2d 520) (2002), moreover, “some injury is necessary to show even nominal damages for a breach of fiduciary duty.” Id. at 411 (7); see also Conner v. Hart, 252 Ga. App. 92, 93-94 (1) (a) (555 SE2d 783) (2001) (affirming grant of directed verdict on breach of fiduciary duty claim where plaintiff had failed to show “actual damage” or any other injury).

(ii) Individualized Wrongs and Defenses. As we have already suggested, Georgia appellate courts have refused to condone the certification of a class when the circumstances surrounding a member’s actual response to the defendant’s allegedly wrongful act could vary widely. See Carnett’s, 279 Ga. at 130 (5) (noting other jurisdictions’ determinations that “individual questions of whether fax recipients gave their oral or written permission rendered class certification inappropriate” regardless of the business relationship between the parties); Peck v. Lanier Golf Club, 304 Ga. App. 868, 872 (1) (697 SE2d 922) (2010) (affirming denial of motion for class certification as to golf course closure when plaintiffs’ purchases of their land lots “arose out of multiple projects by different developers and resulted in different subdivisions with separate sections”).

When Peacock admits that he demanded that the neighboring Walgreens fill his prescription on his first visit there with the information sold to it by Rite Aid and that he has continued to use Walgreens to fill his prescription needs, he raises a substantial possibility that Rite Aid may defeat the action by asserting that Peacock waived or ratified the sale at issue. Peacock’s contradictory response to that sale — protesting its wrongfulness, but insisting that Walgreens fill his prescription nonetheless — also highlights his failure to prove that any or most other class members share not only his apparent outrage concerning the sale of the prescription information but also his tacit acceptance of that event. See Carnett’s, 279 Ga. at 130 (6) (rejecting a request to remand case for further discovery when plaintiff had “relied on her argument” that an established business relationship existed between all parties); Pop’s Pancakes, Inc. v. NuCO2, Inc., 251 FRD 677, 682-683 (II) (B) (2) (S.D. Fla. 2008) (finding no commonality when the leading issue presented by the motion to certify was whether defendant’s invoices “[were] deceptive to [a] particular plaintiff”); Brenntag Mid South v. Smart, 308 Ga. App. 899, 904-905 (2) (a) (iii) (710 SE2d 569) (2011) (refusing to certify one of three representatives as typical when she had previously signed a release concerning the claim at issue in the class action).

Finally, and to the extent plaintiffs are claiming that Rite Aid committed the tort of unauthorized disclosure of medical information, we repeat two observations already made: that there is no evidence in the record before us of any “public” disclosure of Peacock’s data, and that such cases are bound to turn on individual rather than common questions. See Haughton v. Canning, 287 Ga. App. 28, 30 (3) (650 SE2d 718) (2007) (affirming a doctor’s motion for directed verdict when plaintiff could not show that the defendant doctor’s sharing of medical information with other physicians amounted to a “public” and thus wrongful disclosure).

(b) Typicality and Adequacy. As the United States Supreme Court has noted, “[t]he commonality and typicality requirements of [Federal] Rule 23 (a) tend to merge.” Gen. Telephone Co. &c. v. Falcon, supra, 457 U. S. at 157, n. 13. Given Peacock’s failure to prove that his response to the closing of the Swainsboro Rite Aid was shared by other members of the class, we do not share the trial court’s confidence in his status as a “typical” class representative as required by OCGA § 9-11-23 (a) (3). In the very recent case of In re Fla. Cement and Concrete Antitrust Litigation, 278 F.R.D. 674 (S.D. Fla. 2012), for example, the federal district court ruled that class representatives who had not suffered any actual “impact” from a defendant’s alleged price-fixing conspiracy failed to satisfy the typicality requirement of Federal Rule 23. Id. at 681. Given Peacock’s lack of actual injury, moreover, he is unlikely to “vigorously litigate the action on behalf of the class,” just as it follows from his atypical position that he “cannot adequately prosecute the action.” Id.

For the above reasons, we conclude that the trial court erred when it found that Peacock and the proposed class of Swainsboro Rite Aid customers shared common questions of law and fact and that Peacock was a sufficiently typical representative of that class under OCGA § 9-11-23 (a) (2) and (a) (3).

2. Given our holding in Division 1, we need not reach Rite Aid’s remaining contentions.

Judgment reversed.

Mikell, P. J., Dillard and Boggs, JJ., concur. Barnes, P. J., Phipps, P. J., and McFadden, J., dissent.

PHIPPS, Presiding Judge,

dissenting.

I believe that the trial court did not abuse its discretion in finding that, for purposes of OCGA § 9-11-23 (a), Peacock and the class of Swainsboro Rite Aid customers shared common questions of law and fact and that Peacock was a sufficiently typical representative of the class. Accordingly, I disagree with the majority that the trial court erred in so finding.

Peacock’s breach of duty, breach of fiduciary duty, breach of contract, and unjust enrichment claims are based on Rite Aid’s alleged duty to protect the confidentiality of the class members’ pharmacy records. He claims that Rite Aid breached that duty by selling those records to Walgreens without Peacock’s and the class members’ written consent. “What matters to class certification ... is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”

The class members, whose prescriptions were sold in a single transaction, were similarly situated both factually and legally insofar as, for example, the application of the statutes and regulations governing the confidentiality and the transfer of pharmacy records to that discreet sale. Whether Rite Aid did or did not violate statutory and common law in selling the records can provide common answers needed to resolve the litigation. The majority, however, concludes that because (i) Peacock could not show that he suffered any actual financial or physical injury and (ii) there were individualized wrongs and defenses, the evidence did not present sufficiently common questions of fact and law as to whether Rite Aid committed any legally cognizable wrong when it sold the pharmacy records to Walgreens. The majority also concludes that the trial court erred in finding that Peacock was a sufficiently typical representative of the class.

“One or more members of a class may sue or be sued as representative parties on behalf of all only if... (2) There are questions of law or fact common to the class.” As recognized by the majority, Peacock must show that the class members suffered the same injury. But even assuming that Peacock was unable to point to any actual financial or physical injury arising from the sale of his pharmaceutical information, “[t]he law infers some damage from the tortious invasion of rights and allows nominal damages when there is no evidence of a particular loss to vindicate the rights of the plaintiff.” Further, the Plaintiffs allege the unlawful disclosure of confidential pharmaceutical records for money.“[ B] reach of fiduciary duty negates the unfaithful agent’s right to any compensation____” Thus, Peacock showed a single transaction that, if unlawful, would result in an injury common to all class members.

Nor do individualized wrongs or defenses necessarily preclude certification of the class. “[A]s long as the common questions predominate, a class may be certified even if some individual questions of law or fact exist.” As the trial court found, Rite Aid did not obtain written authorization from Peacock or other customers agreeing to the sale of the pharmacy records to Walgreens. It is Peacock’s contention that the statutes, regulations, and documents upon which Rite Aid’s alleged duties rest prohibit the release of confidential pharmaceutical information without prior written consent. Thus, unlike Carnett’s, Inc. v. Hammond, or Perez v. Atlanta Check Cashers, Rite Aid’s liability, should the transfer of the records without written consent be found unlawful, does not require an individualized inquiry into the class members’ relationship to Rite Aid or suggest that there is a need to investigate whether each class member did or did not appropriately consent to the transfer of the pharmacy records.

The majority also concludes that the claims and defenses of Peacock are not typical of the claims and defenses of the class. “The typicality requirement under OCGA § 9-11-23 (a) is satisfied upon a showing that the defendant committed the same unlawful acts in the same method against an entire class.” Peacock has alleged that Rite Aid wronged the members of the class in the same way by unlawfully selling their pharmacy records in a single transaction, and so Peacock is a typical member of the class in that respect. As the majority points out, Peacock also continued to use Walgreens to fulfill his prescription needs following the sale while simultaneously insisting that Rite Aid’s sale of his prescriptions to Walgreens was wrongful. If Peacock’s conduct raises the possibility that he ratified or waived his objections to the sale at issue, it is not clear that his conduct was atypical of the class. Furthermore,

although a defense may arise and may affect different class members differently, this occurrence does not compel a finding that individual issues predominate over common ones. So long as a sufficient constellation of common issues binds class members together, variations in the sources and application of a defense will not automatically foreclose class certification.

Thus, while Peacock has shown that he is typical of the class members insofar as his claims, Rite Aid does not point to evidence that “any potential defenses would yield a different result for any class member other than [Peacock].” Should Rite Aid later show that Peacock is not typical of the class because of Rite Aid’s waiver and ratification defense, or that individualized questions may predominate in light of Rite Aid’s affirmative defenses, the trial court is free to revisit the issue. “It bears emphasis that certification orders are ‘inherently tentative,’ and the trial court retains jurisdiction to modify or even vacate them as may be warranted by subsequent events in the litigation.” But the record does not establish an abuse of discretion by the trial court in finding that Peacock was a typical member of the class.

Decided March 22, 2012

Reconsideration denied April 12, 2012

Alston & Bird, Andrew J. Tuck, James C. Grant, Drew, Eckl & Farnham, Stevan A. Miller, for appellant.

Hamilton & Maddox, Lance J. Hamilton, Bell & Brigham, John C. Bell, Leroy W. Brigham, for appellees.

For these reasons, I respectfully dissent.

I am authorized to state that Presiding Judge Barnes and Judge McFadden join in this dissent.

        Wal-Mart Stores v. Dukes,_U. S._,_(II) (A) (131 SC 2541, 180 LE2d 374) (2011) (citation and punctuation omitted).

       See OCGA § 26-4-80 (d); Ga. Comp. R. & Regs. r. 480-16-,07 (d) (4). Of course, “[a]ny assertion that the named plaintiff cannot prevail on [his] claims does not comprise an appropriate basis for denying class certification.” Village Auto Ins. Co. v. Rush, 286 Ga. App. 688, 692 (2) (649 SE2d 862) (2007) (citation and punctuation omitted).

       Peacock takes the position that its unjust enrichment claim does not necessarily turn on a violation of a legal or contractual duty in selling the records, but whether it would be inequitable for Rite Aid to profit from the sale. But Rite Aid’s conduct can provide common answers to this question as well. See, e.g., Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 721 (698 SE2d 19) (2010) (class action plaintiff contended insurer unjustly enriched itself when it made no effort to determine when unearned premiums were owed and to repay the same); Fortis Ins. Co. v. Kahn, 299 Ga. App. 319, 320 (683 SE2d 4) (2009) (affirming class certification for claims including unjust enrichment).

       OCGA §9-11-23 (a).

        Dukes, supra,_U. S. at_.

       The conclusion that Peacock could show no injury at all from the sale of confidential medical records, no matter how slight, is also inconsistent with the importance of the duties Rite Aid is alleged to have breached. See, e.g., Sletto v. Hosp. Auth. &c., 239 Ga. App. 203, 205(1) (521 SE2d 199) (1999) (noting that “[tjhis case is not simply an action concerning the emotional consequences on a plaintiff arising out of a defendant’s alleged commission of a negligent tort [but] involves the unauthorized release of psychiatric records,” and “to refuse summarily to hold [defendants] accountable for their actions might encourage even more carelessness in the future”).

        Land v. Boone, 265 Ga. App. 551, 554 (594 SE2d 741) (2004) (citations omitted). In addition, we recognized in Land that “to sue a tortfeasor to bring the defendants to public approbation and penitence by an adverse verdict for nominal damages has long been part of our common law.” Id. at 553. See also OCGA § 13-6-6 (“In every case of breach of contract the injured party has a right to damages, but if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action.”); King v. Brock, 282 Ga. 56, 57 (646 SE2d 206) (2007) (“Nominal damages come into play when an injured party establishes a breach of contract, but is unable to prove actual damages.”); Pavesich v. New England Life Ins. Co., 122 Ga. 190, 202 (50 SE 68) (1905) (special damages are not required to recover for breach of privacy).

        Vinson v. E.W. Buschman Co., 172 Ga. App. 306, 309-310 (1) (323 SE2d 204) (1984).

        Rush, supra at 691 (1).

       For example, Peacock points to Rite Aid’s “Notice of Privacy Practices,” which provide that “we will obtain your written Authorization before using or disclosing protected health information” other than for certain listed and authorized purposes.

       279 Ga. 125 (610 SE2d 529) (2005).

       302 Ga. App. 864 (692 SE2d 670) (2010).

        Liberty Lending Svcs. v. Canada, 293 Ga. App. 731, 738 (1) (b) (668 SE2d 3) (2008) (citation and punctuation omitted).

        Davis v. Northside Realty Associates, 95 FRD 39, 43 (N.D. Ga. 1982) (“[s]ince all plaintiffs must establish the same basic elements to prevail and since there are no differences as to the type of relief sought or the theories of liabilities upon which plaintiffs are proceeding, the typicality requirement is met”).

        Fortis Ins. Co., supra at 324 (2) (c).

       Id. (emphasis in original).

       See generally Waste Mgmt. Holdings v. Mowbray, 208 F3d 288, 296 (III) (A), n. 4 (1st Cir. 2000) (“when the defendant’s affirmative defenses . . . may depend on facts peculiar to each plaintiff’s case, class certification is erroneous”) (citation and punctuation omitted).

        J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372, 378 (2) (c) (634 SE2d 123) (2006) (citation omitted).


author: Blackwell, Judge.

text:
    A11A2194.
    REEVES et al. v. UPSON REGIONAL MEDICAL CENTER.
    (726 SE2d 544)
   Blackwell, Judge.

In Slone v. Myers, 288 Ga. App. 8 (653 SE2d 323) (2007), we considered whether OCGA § 9-15-14 (b) permits an award of attorney fees and litigation expenses to a nonparty, and we held that it does. We revisit that question today, and we conclude that Slone is inconsistent with the clear and unambiguous terms of the statute. We now hold that attorney fees and expenses generally can be awarded under OCGA § 9-15-14 (b) only to a party, and we overrule Slone to the extent that it holds otherwise.

Lisa Reeves, a lawyer, represented the plaintiffs in a lawsuit against an Upson County obstetrician for medical malpractice. In the course of that lawsuit, Reeves served a subpoena for the production of documents upon Upson Regional Medical Center, a nonparty. Upson Regional moved under OCGA § 24-10-22 (b) to quash the subpoena, contending that it was unreasonable and oppressive, and Reeves filed a motion to compel Upson Regional to produce the documents requested in the subpoena. But before the court below ruled on these motions, Upson Regional apparently agreed to produce some, but not all, of the documents that Reeves sought, and Reeves withdrew the subpoena. Upson Regional then moved to recover the attorney fees and expenses that it had incurred in connection with the subpoena. Citing OCGA § 9-15-14 (b) and our decision in Slone, the court below ordered Reeves and her law firm to pay Upson Regional more than $23,000 for its attorney fees and expenses. Reeves and the firm filed a petition for discretionary review of that order, arguing, among other things, that OCGA § 9-15-14 (b) does not permit an award of attorney fees and expenses to a nonparty. We granted their petition, and this appeal followed.

1. Before we turn to the merits of the appeal, we must consider whether we properly can exercise appellate jurisdiction in this case. See Warren v. Bd. of Regents of the Univ. System of Ga., 272 Ga. 142, 143 (527 SE2d 563) (2000) (appellate court has obligation to raise and resolve “issues of appellate jurisdiction when necessary”). Upson Regional argues that we are without jurisdiction because the petition for discretionary review was untimely and because, after we granted the petition, Reeves and the firm failed to file a proper notice of appeal. We do not find these arguments persuasive, and we conclude that we properly can exercise appellate jurisdiction in this case.

(a) We first consider whether the petition for discretionary review was timely filed. The court below initially awarded attorney fees and expenses to Upson Regional in July 2010, and more than eight months later, the court amended its award. When a court awards attorney fees and expenses under OCGA § 9-15-14, an appeal from that award ordinarily must be taken by filing a petition for discretionary review, see OCGA § 5-6-35 (a) (10), and the petition must be filed within 30 days of the entry of the award. See OCGA § 5-6-35 (d). Reeves and her firm filed their petition for discretionary review within 30 days of the entry of the amended award, and we granted that petition, allowing this appeal. Upson Regional argues that the original award of attorney fees and expenses was a final order, and Reeves and her firm had only 30 days after the entry of the original award to file a petition for discretionary review, which they failed to do. About the amended award, Upson Regional contends that its entry did not reopen the time for Reeves and the firm to file a petition because the amended award merely corrected clerical errors that appeared in the original award. Consequently, Upson Regional says, the petition for discretionary review was untimely.

We disagree. Within 30 days of the entry of the original award, Reeves and her firm attempted to take an appeal from it, albeit by filing a notice of appeal, not a petition for discretionary review. We dismissed that appeal, in part because Reeves and the firm had failed to file a petition for discretionary review. But we also based our dismissal of that appeal on a finding that the original award was interlocutory and not a final order, such that a certificate of immediate review and application for immediate review were required to take an appeal from it. See OCGA § 5-6-34 (b). Right or wrong, that finding is now the law of the case, and we cannot revisit it. Rice v. Lost Mountain Homeowners Assn., 288 Ga. App. 714, 714 (1) (655 SE2d 214) (2007). Accordingly, the original award was not a final order that was immediately appealable, and the filing of a petition for discretionary review within 30 days of the entry of the amended award was timely.

(b) We next consider whether Reeves and her firm filed a proper notice of appeal. Their notice of appeal bears the signature of Reeves, but her signature apparently was affixed by another with her express permission. Court of Appeals Rule 1 (a) requires that the signature of an attorney of record appear on “[a]ll filings, documents, motions, briefs, requests, and communications relating to appeals,” and it explicitly forbids “signatures by express permission.” Citing Rule 1 (a), as well as our decision in Jaheni v. State, 281 Ga. App. 213 (635 SE2d 821) (2006), Upson Regional argues that the notice of appeal was not properly signed and is, therefore, a nullity.

We are not persuaded. By its own terms, Rule 1 (a) applies only to papers “relating to appeals” that are directed to and filed with this Court, and it does not apply, therefore, to a notice of appeal. And Jaheni is distinguishable, inasmuch as it involved a notice of appeal that was filed by someone not licensed to practice law. See 281 Ga. App. at 214 (“Because Jaheni’s notice of appeal was filed by a person not authorized to practice law in this state, the notice of appeal is ineffectual.”). In this case, the notice of appeal was filed by Reeves — that is, it was delivered to the clerk for filing by her authority, in her name, and under her signature — notwithstanding that her signature was affixed to the notice of appeal by another with express permission. The parties cite no statute, rule, or precedent that absolutely requires a lawyer to personally affix her signature to a notice of appeal, and we have found none. The manner of signing the notice of appeal in this case does not, we conclude, leave us without appellate jurisdiction.

2. Satisfied that we properly may exercise appellate jurisdiction, we turn now to the merits of the appeal. Reeves and her firm contend for several reasons that the award of attorney fees and expenses was error, but we find it necessary to address only one of their contentions. Upson Regional was not a party to the medical malpractice case below, and Reeves and the firm argue that OCGA § 9-15-14 (b) does not permit an award of attorney fees and expenses to a nonparty. We agree.

Under OCGA § 9-15-14 (b), a court may award “reasonable and necessary” attorney fees and expenses if the court finds that a lawyer or party has engaged in certain conduct warranting such an award:

The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.”

In Slone, we noted that the provisions of OCGA § 9-15-14 (b) do not expressly authorize an award under subsection (b) to a nonparty, nor do they explicitly forbid it, unlike OCGA § 9-15-14 (a), which distinctly provides that a court may award fees and expenses under subsection (a) “to any party.” Because subsection (a) identifies explicitly the persons to whom a court may award attorney fees and expenses, and because subsection (b) does not, we reasoned that subsection (b) permits an award of attorney fees and expenses to a nonparty. See 288 Ga. App. at 12 (3). Our decision in Slone, however, conflicts with In re N. S. M., 183 Ga. App. 398 (359 SE2d 185) (1987), in which we held that attorney fees could not properly be awarded to a nonparty under any provision of OCGA § 9-15-14. See 183 Ga. App. at 400 (3). Moreover, Slone says nothing about OCGA§ 9-15-14 (d), which defines the “reasonable and necessary” attorney fees and expenses that can be awarded under both subsections (a) and (b), and that omission, we think, renders the analysis contained in Slone incomplete.

According to OCGA § 9-15-14 (d), attorney fees and expenses awarded under OCGA § 9-15-14 — whether subsection (a) or subsection (b) — cannot “exceed amounts which are reasonable and necessary for defending or asserting the rights of a party! (Emphasis supplied.) As we have explained before, “[w]hen we consider the meaning of a statute, we always must presume that the General Assembly means what it says and says what it means,” Strength v. Lovett, 311 Ga. App. 35, 43 (2) (a) (714 SE2d 723) (2011) (citation and punctuation omitted), and an unambiguous statute must be afforded its plain meaning. See Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 577-578 (1) (707 SE2d 921) (2011). There is no reason to think that “party,” as that term is used in OCGA § 9-15-14 (d), means anything other than a named party to the litigation, and attorney fees and expenses incurred by a nonparty in the defense or assertion of its own rights are not, by definition, fees and expenses “which are reasonable and necessary for defending or asserting the rights of a party.” Consequently, we conclude that attorney fees and expenses under OCGA § 9-15-14 (b) generally cannot be awarded to a nonparty. To the extent that we held otherwise in Slone, we overrule that decision, and we reverse the judgment below, which awarded attorney fees and expenses to Upson Regional, a nonparty.

Decided March 21, 2012

Reconsideration denied April 12, 2012

Lisa R. Reeves, for appellants.

Adams, Barfield & Baity, Ronald Barfield, for appellee.

Judgment reversed.

Ellington, C. J., Barnes, P. J., Phipps, P. J., Mikell, P. J., Doyle, P. J., Andrews, Miller, Adams, Dillard, McFadden, and Boggs, JJ., concur.

       The medical malpractice case eventually was settled.

       In our order dismissing the earlier appeal, we said that the original award “does not appear to be a final order as it appears that litigation continues below.” This finding was based apparently on the fact that, after the entry of the original award, the court below invited Reeves and her firm to file an additional brief on the question of attorney fees and expenses.

       “[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” OCGA § 9-11-60 (h).

       Rule 1 (a) also requires that “[a]U filings, documents, motions, briefs, requests, and communications relating to appeals . . . shall be filed with the Clerk’s office” — meaning, of course, the office of the Clerk of the Court of Appeals — and this requirement signals quite clearly, we think, that Rule 1 (a) applies only to filings that are directed to and filed with this Court. Some filings “relating to appeals” are properly directed to the trial court, and such filings are properly filed with the clerk of the trial court, not the Clerk of this Court. A notice of appeal is among the filings “relating to appeals” that are properly directed to and filed with the trial court. See OCGA § 5-6-37 (“[A]n appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal.”).

       In Jaheni, the notice of appeal was filed by someone not licensed to practice law “ ‘with express permission’ of counsel.” Id. at 213. Alawyer cannot authorize another person, who is not licensed to practice law, to file a legal paper in a lawsuit in the name, and under the signature, of that other person. But that is not the same as a lawyer authorizing another person to affix the signature of the lawyer to a legal pleading and to file the pleading in the name, and under the signature, of the lawyer.

       Although the Appellate Practice Act identifies the necessary contents of a notice of appeal, it says nothing about a signature. See OCGA § 5-6-37. The Civil Practice Act requires that “[e]very pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name,” OCGA § 9-11-11 (a), but a notice of appeal is not a “pleading” within the contemplation of the Civil Practice Act. See OCGA § 9-11-7 (a) (recognizing pleadings allowed in civil cases). And although the Uniform Superior Court Rules require that “[a]ll judgments, orders, pleadings and other documents shall bear the signature of the responsible attorney or party who prepared the document,” they say nothing about whether a lawyer can authorize another to affix her signature. See Uniform Superior Court Rule 36.4.

       Our understanding of OCGA § 9-15-14 is consistent with the principle that a statute in derogation of the common law ought to be construed strictly. Inasmuch as attorney fees generally were not recoverable at common law, a statute authorizing the recovery of such fees is strictly construed. See VSI Enterprises, Inc. v. Edwards, 238 Ga. App. 369, 375 (2) (518 SE2d 765) (1999).

       We offer no opinion about whether attorney fees and expenses might properly be awarded to a nonparty who defends and asserts the rights of a party, such as a nonparty custodian of documents who objects to the production of such documents on the basis of a privilege, or on the basis of a right of privacy, that belongs to a named party. That is not an issue in this case.

       We acknowledge the burden and expense that an unreasonable or oppressive subpoena may impose upon a nonparty, and we likewise acknowledge that a motion to quash such a subpoena may not always afford a complete remedy to a nonparty. But this Court cannot fashion a more complete remedy where the plain terms of the applicable statute do not permit it. If a more complete remedy is to be made available, it must be done by the General Assembly.