author: Dillard, Judge.

text:
    A11A0934.
    BITHONEY v. FULTON-DeKALB HOSPITAL AUTHORITY et al.
    (721 SE2d 577)
   Dillard, Judge.

Dr. William Bithoney, M.D., relocated from New York to Atlanta after accepting employment in an executive capacity at Grady Memorial Hospital. But the night before his anticipáted start date, Bithoney was informed that Grady’s governing body, the Fulton-DeKalb Hospital Authority (the “Authority”), did not approve of his hiring and would not permit him to commence work. Bithoney subsequently filed suit against the Authority and Pamela Stephenson, the chair of the Authority’s board of trustees (the “Board”), for breach of an oral contract for severance, fraud, and negligent misrepresentation. Thereafter, appellees successfully moved for summary judgment on the grounds that the oral contract was barred by the Statute of Frauds and, further, that Bithoney’s claims for fraud and misrepresentation failed as a matter of law. Bithoney appeals the grant of summary judgment to the Authority. For the reasons set forth infra, we affirm.

I. Factual Summary

Viewing the evidence and construing all inferences in the light most favorable to Bithoney, the facts show that in early 2007, he served as the physician-in-chief of St. Vincent Catholic Medical Centers of New York and vice dean of New York Medical College. Because Bithoney was hired for the purpose of navigating St. Vincent through a bankruptcy and major reorganization resulting in the sale and/or closing of six of the seven hospitals, his employment in that capacity was, by its very nature, finite in duration.

Around April 2007, Otis Story, the then-CEO of Grady—who had previously worked with Bithoney in New York—contacted Bithoney to gauge his interest in coming to work for Grady. Story indicated to Bithoney that he had been given the authority to create an executive team, and that he hoped Bithoney would consider running the day-to-day operations of the hospital. Bithoney was familiar with Grady and its commitment to treating poor and underserved ethnic and cultural minorities (a cause about which he was passionate), and he was excited about the employment opportunity.

Bithoney made several trips to Atlanta during the summer of 2007 to visit Grady and explore the possibility of his employment there. During their discussions, Story indicated that it was his practice to have potential job applicants meet the members of the Board, and requested that Bithoney do so “as a courtesy.” On June 5, 2007, Bithoney traveled to Atlanta to meet with various Board members, including the Board’s vice president. After Bithoney’s meeting, the vice president left a voicemail on Story’s cell phone (which Story later played for Bithoney) expressing enthusiasm about Bithoney’s qualifications and opining that he should be hired immediately.

Following his visit, Bithoney sent an e-mail to Story dated June 9, 2007, in which he communicated his “deeply” held belief in Grady’s mission and expressed his excitement about the prospect of working for the hospital. Bithoney further acknowledged that, having just navigated St. Vincent’s through bankruptcy, he was “nervous about Grady’s finances.” Bithoney nonetheless stated that he would be willing to consider a “solid” employment offer, which he expressly stated must include “appropriate not[-]for[-]cause severance payments.”

During the months of June and July, Bithoney and Story had ongoing telephone discussions regarding Bithoney’s salary needs and other desired employment terms, and Bithoney repeatedly stressed that, because working for Grady would require him to uproot his family (his wife was also a working professional), it was critical to him that he have an appropriate severance package in the event he was terminated from Grady without cause. Story indicated that Grady would be willing to provide him an appropriate severance.

Bithoney made at least two additional trips to Atlanta in July 2007 during his generalized employment discussions with Story. One such visit was for the specific purpose of meeting Stephenson, chair of the Board. During that visit, Stephenson told Bithoney, “[W] el-come to the Grady family, we are looking forward to your joining us.”

The employment discussions between Bithoney and Story became more focused throughout July and it is undisputed that by August, they had reached a verbal agreement pursuant to which Bithoney was to begin work as Grady’s senior vice president of administration on October 15, 2007. It is further undisputed that they agreed on Bithoney’s annual salary, an annual incentive bonus, and the amount Bithoney would receive as reimbursement for relocation and temporary housing expenses. Finally, Bithoney contends that he and Story agreed that he would receive “a severance payment of 15 months’ salary if Grady terminated [his] employment without cause.”

As Bithoney awaited a written draft employment contract, he became “worried” that the “politics at Grady” were causing a delay in the contracting process. Nevertheless, after receiving Story’s assurances that “[w]e will get this done,” Bithoney accepted an offer on his home in New York and began looking at homes in Atlanta to purchase.

By mid-August, Bithoney received a draft employment contract from Grady. This draft included a provision that, in the event Bithoney was terminated without cause, he would receive “full severance payments” which would be “payable for 15 months from the effective date of said termination.” Bithoney coordinated with Michael Black, Grady’s then-vice president of human resources, to construct a final draft of the agreement, which was then approved by Story and submitted to Grady’s legal department for approval.

Bithoney informed Story that, based upon Story’s “verbal guarantee that we shall move forward on signing the . . . contract,” he made an offer on a home in Atlanta. And because the employment contract was not yet executed, Bithoney and Story signed an offer letter to effectuate the home closing, in which Grady “ confirm [ed]” Bithoney’s acceptance of Grady’s offer of employment (the “Offer Letter”). The Offer Letter included Bithoney’s agreed upon title, start date, salary, annual incentive payment, and reimbursement of moving/relocation expenses. It concluded, “[t]his letter is intended only to confirm your initial employment status as an employee at-will and serves as a framework for the development of a [f] or mal [cjontract.” Upon receipt of the Offer Letter, Bithoney sent an e-mail to Black acknowledging that the offer letter did not contain certain terms, including the not-for-cause severance provision, which Bitho-ney had been advised needed to be left for the formal contract. Bithoney nonetheless reiterated his intent that the severance provision be included in any such contract.

Despite not having an executed employment agreement, Bithoney moved to Atlanta in early October 2007 in anticipation of his October 15 start date. On October 14, the night before he was to begin work, Story informed Bithoney that his employment had been blocked by the Board, and Bithoney was never permitted to begin work with Grady in the position for which he was hired.

II. Summary of Trial Court Proceedings

Thereafter, Bithoney filed suit against the Authority and Stephenson, alleging breach of contract, fraud and negligent misrepresentation, and asserting entitlement to punitive damages and attorney fees. Specifically, Bithoney alleged that he and Story entered into an oral contract pursuant to which he was entitled to “a severance payment equal to 15 months’ salary” for not-for-cause termination, the existence of which he asserted was “re-confirmed” in the draft employment agreement which “contained], among other things, the severance terms agreed upon.” Bithoney further alleged that Stephenson’s statement, “[Wjelcome to the Grady family, we are looking forward to your joining us,” amounted to fraud and/or negligent misrepresentation insomuch as it communicated that the Board was agreeable to Bithoney’s employment and otherwise concealed the existence of the Board’s opposition to his hiring.

The Authority served Bithoney with discovery, which included an interrogatory question asking him to explain the basis of his contention that he had entered into a contract with Story. As he had in his complaint, Bithoney maintained in a verified response that he and Story orally agreed that he would receive “a severance payment of 15 months’ salary if [Grady] terminated [his] employment without cause,” the “terms” of which were “contain[ed]” in the draft employment agreement.

The Authority also conducted a videotaped deposition of Bithoney. Again in his deposition, Bithoney contended that he and Story orally agreed to “a severance payment of 15 months’ salary” for termination without cause. The Authority then directed Bithoney to the assertion in both his complaint and interrogatory response in which he alleged that the draft employment agreement “contain[edJ ” the “severance terms” agreed upon. The Authority handed Bithoney four draft employment contracts that had been exchanged between he and Black, and asked him to identify which document contained language describing the severance to which he and Story had agreed:

[Authority]: Look at these four documents and tell me, please, whether you can identify either one of them as containing or as being the document that you referred to as having been sent to you . .. which contain[s] language that you contend describes the severance arrangement that you claim to have reached with Mr. Story.
[Bithoney]: Well, in going over these as you handed them to me, I immediately looked at the one that. . . handwritten on it is 8/29—
[Authority]: All right.
[Bithoney]: —which I assume is 8/29/07. And on page 3 . . . it says, “Employee shall receive full severance payments upon separation^’] and . . . [“]shall be payable for 15 months from the effective date of said termination.” [Authority]: And is it your testimony and contention that the document you have identified . . . contains the language and terms that you claim describe the oral severance agreement that you claim to have reached with Mr. Story? [Bithoney]: We did agree on 15 months severance for not, not-for-clause [sic] termination.
[Authority]: And my question to you is whether the document contains the language of that agreement as you contend it existed.
[Bithoney]: Yes.
[Authority]: And is that, to the best of your knowledge, the same document ... in which you allege in your complaint the existence of a writing which contained, among other things, the severance terms that you claim were agreed upon?
[Bithoney]: This is one of the documents that states the severance. Yes.
[Authority]: [After marking the document for identification] ... I hand you again the document . . . and just ask that you identify it again for the record as the document that you identified that contains a written description of the severance terms that you claim you and Mr. Story agreed upon.
[Bithoney]: Yes, it does.

Following the deposition, the Authority filed a motion for summary judgment, contending that the oral agreement as Bithoney alleged it existed fell within the Statute of Frauds because it could not be performed within one year of its making and was therefore unenforceable in the absence of a signed writing by the Authority. In response, Bithoney filed an affidavit explaining that he and Story discussed and agreed on the amount of severance to which he would be entitled if terminated without cause (i.e., 15 months of salary), but that at no time did they discuss or negotiate how or when the severance would be paid (i.e., whether it would be paid in a lump sum or paid over time). Bithoney further explained that during his deposition, he understood the Authority’s counsel to be asking him whether any of the draft contracts contained the 15-month severance provision that had been part of the oral agreement, but that he did not understand the question to be referring to the other provisions of the paragraph, including the payment schedule. Bitho-ney added that, had he been asked directly whether the oral agreement specified how the severance would be paid, he would have responded in the negative.

Applying the rule set forth by our Supreme Court in Prophecy Corp. v. Charles Rossignol, Inc., the trial court held that Bithoney affirmatively testified that the language of the draft employment agreement reflected the terms of the agreed upon oral severance agreement (i.e., that it would be paid over a 15-month period), and that the explanation given in his later-filed affidavit contradicting that testimony was not reasonable. The trial court therefore construed the conflicting testimony against Bithoney and concluded that the alleged oral severance agreement included a provision that it be paid over a period of 15 months, and its enforcement was thus barred by the Statute of Frauds. The trial court further held that Stephenson’s statements were insufficient as a matter of law to support a claim for either fraud or negligent misrepresentation. This appeal follows the trial court’s grant of summary judgment to appellees.

III. Analysis

1. Bithoney argues that the trial court misapplied the Prophecy rule in construing his testimony against him and granting appellees summary judgment on his breach-of-contract claim. We disagree.

Under Georgia law, the Statute of Frauds requires, inter alia, that “[a]ny agreement that is not to be performed within one year of the making thereof” be in writing and signed by the party to be charged. To fall within the ambit of this statutory provision, a contract must be incapable of being performed within a year; “the possibility of performance of the contract within one year is sufficient to remove it from the Statute of Frauds.” Thus, in the event that Bithoney’s oral severance agreement contained a provision that it be paid over the span of 15 months’ time, its enforcement is barred by the Statute of Frauds. If the payment terms were otherwise unspecified, the oral agreement would not fall within the statute.

In the case sub judice, the trial court based its finding that the 15-month payment schedule was a term of the severance agreement on Bithoney’s deposition testimony. And as a result of the trial court’s determination that Bithoney’s deposition responses constituted a “clear and unambiguous” admission of the 15-month payment term, the trial court rejected Bithoney’s averments that he and Story did not discuss how the severance was to be paid.

Under the rule set forth in Prophecy, a trial court faced with a party’s self-contradictory sworn testimony must construe the testimony against that party on a motion for summary judgment, unless he or she offers a reasonable explanation for the contradiction. Significantly whether a reasonable explanation has been offered is a question of law for the trial court, and we must uphold a trial judge’s determination on the issue unless it is clearly erroneous . In other words, this Court must affirm the trial court’s ruling if there is any evidence to support it.

And here, we cannot say that the trial court’s ruling as to the reasonableness of Bithoney’s explanation was clearly erroneous. Although Bithoney is not a lawyer and may have been less sensitive to the significance attached to certain words, the Authority’s counsel clearly and unambiguously asked if the draft employment agreement—which provided that the severance “shall be payable for 15 months from the effective date of said termination”— “contained] a written description of the severance terms” that he and Story had agreed upon, and Bithoney answered in the affirmative. This representation mirrored the allegation made by Bithoney in his complaint and repeated in his interrogatory response that the draft employment agreement “contain[ed],” among other things, “the severance terms” agreed upon. Moreover, at no time during or after the deposition did Bithoney seek clarification of the questions or attempt to correct or explain his responses. Thus, because we cannot say that there is no evidence to support the trial court’s ruling, we are constrained to conclude that it did not clearly err in applying the rule of Prophecy to hold that enforcement of the oral severance agreement was barred by the Statute of Frauds.

2. Bithoney further contends that the trial court erred in granting summary judgment to appellees on his claims for fraud and negligent misrepresentation. Again, we disagree.

In order to establish a claim of fraud under Georgia law, a plaintiff must prove “(1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff.” In turn, to prove negligent misrepresentation, “a plaintiff must show that (1) the defendant negligently supplied false information to foreseeable persons, known or unknown[;] (2) such persons reasonably relied upon that false information[;] and (3) economic injury proximately resulted from such reliance.” To survive summary judgment on either claim, “there must be some evidence from which a jury could find each element of the tort.” And significantly, “when the representation consists of general commendations or mere expressions of opinion, hope, expectation and the like, the party to whom it is made is not justified in relying upon it,” and thus, it cannot serve as the basis for either a fraud or a negligent misrepresentation claim.

And here, it is undisputed that Bithoney’s claims of fraud and negligent misrepresentation are based solely upon Stephenson’s statement, “[W]elcome to the Grady family, we are looking forward to your joining us.” But Bithoney admitted in his deposition that at the time of Stephenson’s statement, he had not yet accepted employment at Grady, nor had he and Story agreed to the material terms of his employment contract—including his position, salary, and benefits. Indeed, Bithoney testified that, although he and Story had engaged in generalized conversations as to his salary and other employment terms at that time, those discussions did not become more specific until after he had met Stephenson.

It follows, then, that Bithoney could not have reasonably believed Stephenson’s statement to be anything more than an expression of optimism and courtesy at the time it was made. We simply cannot agree with Bithoney’s assertion that Stephenson’s remark can be properly characterized as a confirmation of his employment and/or an indication of Board approval when, by his own admission, the essential terms of his employment had not yet even been discussed.

Moreover, critical to any claim of fraud or negligent misrepresentation is proof that a plaintiff “actually and justifiably relied” on the representation forming the basis of his or her claim. Even assuming that Stephenson’s statement could be construed in the nature asserted by Bithoney, he cannot establish that he actually relied upon her representation in his decision to accept employment at Grady. By Bithoney’s own admission, aside from the “courtesy meeting,” he never discussed with Stephenson his anticipated employment or the terms thereof, and at no time did he believe any such discussions to be necessary. Indeed, in Bithoney’s mind, Stephenson was an irrelevant factor in his hiring.

Thus, while we are deeply sympathetic to Bithoney’s position, we cannot escape the conclusion that his claims for fraud and negligent misrepresentation fail as a matter of law. And because Bithoney cannot establish the essential elements of the underlying torts he alleges (thereby rendering his claims fatal), he is not entitled to any recovery sounding in compensatory damages, much less punitive damages. Accordingly, we affirm the judgment of the trial court.

Decided November 30, 2011

Reconsideration denied December 16, 2011

Buckley & Klein, Daniel M. Klein, for appellant.

Rogers & Hardin, Richard H. Sinkfield, Catherine M. Bennett, Holland & Knight, Charles S. Johnson III, Robert S. Highsmith, Jr., Joshua I. Bosin, for appellees.

Judgment affirmed.

Mikell, C. J., and Smith, P. J., concur.

        Brock Built, LLC v. Blake, 300 Ga. App. 816, 816-17 (686 SE2d 425) (2009).

       St. Vincent Catholic Medical Centers of New York consisted at that time of seven different hospitals.

       Bithoney testified in his deposition that Story had gone so far as to show him a copy of Story’s offer letter, which purportedly stated in explicit terms that Story would have the authority to hire his own senior team at Grady.

       Instead of using the term “without cause,” the draft agreement referred to an “involuntary termination” without “the occurrence of a major infraction” as that term was defined in “Exempt Employee severance policy,” which was expressly incorporated into the agreement but was not included in the appellate record.

       The record contains several drafts of the agreement, all of which contain the pertinent language quoted infra regarding the severance agreement.

       The offer was contingent upon Bithoney submitting the necessary pre-employment information and passing a physical examination and drug test.

        See OCGA § 13-5-30 (5).

       256 Ga. 27 (343 SE2d 680) (1986).

       OCGA § 13-5-30 (5). But see Daniel E O’Gorman, The Statute of Frauds and Oral Promises of Job Security: The Tenuous Distinction Between Performance and Excusable Nonperformance, 40 Seton Hall L. Rev. 1023, 1032 (2010) (“It is not known for sure . . . why contracts that were not to be performed within one year were included in the Statute [of Frauds], and the provision’s purpose has baffled courts, lawyers, and historians.”).

        Parker v. Crider Poultry, Inc., 275 Ga. 361, 362 (1) (565 SE2d 797) (2002).

        See, e.g., Edwards v. Cent. Ga. HHS, Inc., 253 Ga. App. 304, 305 (558 SE2d 818) (2002) (“An oral contract of employment for a term beyond one year is unenforceable under the statute of frauds.” (punctuation and citation omitted)).

        See, e.g., Parker, 275 Ga. App. at 362 (“An employment contract containing no definite term of employment is terminable at the will of either party . . . [and] does not fall within the Statute of Frauds.”).

       256 Ga. at 28 (1) (“The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf... is to be construed most strongly against him when it is self-contradictory, vague or equivocal.” (punctuation omitted)); see also Rhodes v. ABC Sch. Supply, Inc., 223 Ga. App. 134, 135 (1) (476 SE2d 773) (1996) (“[Wlhere the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover, the opposing party is entitled to summary judgment unless a reasonable explanation is offered for the contradiction.” (punctuation omitted)).

        See Rhodes, 223 Ga. App. at 136 (1); White v. Shamrock Bldg. Sys., Inc., 294 Ga. App. 340, 349 (669 SE2d 168) (2008); Bass Custom Landscapes, Inc. v. Cunará, 258 Ga. App. 617, 621 (575 SE2d 17) (2002).

        See, e.g., Sitton v. Print Direction, Inc., 312 Ga. App. 365, 366 (1) (718 SE2d 532) (2011) (“The clearly erroneous test is the same as the any evidence rule.” (punctuation omitted)); Katz v. Crowell, 302 Ga. 763, 764 (691 SE2d 657) (2010) (“Because the clearly erroneous test is in effect the same standard as the any evidence rule, appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.” (punctuation omitted)).

        See Nghiem v. Allstate Ins. Co., 292 Ga. App. 588, 590-91 (664 SE2d 925) (2008) (holding appellant’s contradictory testimony as to the frequency of his girlfriend’s use of his automobile was insufficient to create a genuine issue of material fact on summary judgment); Touchton v. Amway Corp., 247 Ga. App. 269, 270-71 (543 SE2d 782) (2000) (affirming trial court’s rejection of appellant’s contradictory testimony as unreasonable and subsequent grant of summary judgment to appellee); Gill v. B & R Int’l, Inc., 234 Ga. App. 528, 532 (2) (507 SE2d 477) (1998) (construing appellant’s self-contradictory statements against him and concluding that a severance pay agreement was unenforceable); Rhodes, 223 Ga. App. at 135-36 (1) (affirming trial court’s grant of summary judgment to appellees and holding that appellant’s affidavit in which he claimed to be confused during his deposition did not reasonably explain his contradictory testimony).

        Pyle v. City of Cedartown, 240 Ga. App. 445, 447 (1) (524 SE2d 7) (1999).

        Boeing Co. v. Blane Int’l Group, 276 Ga. App. 672, 676 (3) (624 SE2d 227) (2005).

        Crawford v. Williams, 258 Ga. 806, 806 (375 SE2d 223) (1989); see Holmes v. Grubman, 286 Ga. 636, 640-41 (1) (691 SE2d 196) (2010) (“[T]he only real distinction between negligent misrepresentation and fraud is the absence of the element of knowledge of the falsity of the information disclosed.” (punctuation omitted)); Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 524 (2) (448 SE2d 271) (1994) (“The same principles apply to both fraud and negligent misrepresentation cases.”).

        Anderson v. Atlanta Comm, for the Olympic Games, Inc., 261 Ga. App. 895, 900 (2) (584 SE2d 16) (2003); see also DaimlerChrysler Motors Co., LLC v. Clemente, 294 Ga. App. 38, 51 (3) (668 SE2d 737) (2008).

       In fact, as of July 26, 2007 (the date Stephenson allegedly made the statement to Bithoney), Story had not even presented the Board with his proposal for the position he had in mind for Bithoney.

       A month after the July 26, 2007 meeting between Bithoney and Stephenson, as a result of a series of discussions in which Stephenson played no part, Bithoney and Story negotiated the terms of an at-will employment relationship, the proposed terms of which were memorialized in an August 30, 2007 letter.

        Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 835 (8) (637 SE2d 763) (2006) (“[Pllaintiffs must show they actually and justifiably relied on the representations in [defendant’s] reports before they may recover for their losses under a common law negligent misrepresentation theory of recovery.” (punctuation omitted)); see also Condios, Inc. v. Driver, 145 Ga. App. 537, 538 (1) (244 SE2d 85) (1978) (“One of the essential elements of an action for fraud is justifiable reliance by the plaintiff.” (punctuation omitted)).

        See generally DaimlerChrysler Motors Co., LLC, 294 Ga. App. at 51 (3) (holding claims for fraud and negligent misrepresentation could not be based upon franchisee’s display of its “Five Star certification,” which constituted a “general commendation! ] or mere expression! ] of opinion, hope, expectation and the like”); Anderson, 261 Ga. App. at 900 (2) (holding appellee’s statement that Atlanta would be “the safest place on the planet” during the Olympic Games was merely an expression of “opinion, hope, and expectation” and could not sustain a claim for fraud or negligent misrepresentation). Cf. Jarema v. Olin Corp., 4 F3d 426, 427 (6th Cir. 1993) (Boggs, J.) (characterizing the statement “We feel that you have a great career ahead of you with Olin . . as “[a]n expression of optimistic hope for the future”).

        See, e.g., Stiefel v. Schick, 260 Ga. 638, 639 (398 SE2d 194) (1990) (holding that “a party is not entitled to punitive damages if the party fails to set out a cause of action in tort”).


source: Caselaw Access Project

author: Ellington, Judge. MILLER, Presiding Judge, DOYLE, Judge,

license: Public Domain

text:
    A11A0951.
    NORFOLK SOUTHERN RAILWAY COMPANY v. EVERETT.
    (721 SE2d 591)
   Ellington, Judge.

In this suit under' the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq., Norfolk Southern Railway Company (“Norfolk Southern”) appeals from the final judgment and jury verdict in favor of Michael Everett on his negligence suit for emotional damages arising out of a train derailment and collision into a commercial building. Norfolk Southern contends that the trial court erred in granting Everett’s motion in limine concerning the “zone of danger” test, in denying Norfolk Southern’s motion for a directed verdict, and in refusing to give certain jury charges. Because the trial court’s ruling on the motion in limine erroneously removed from the jury’s consideration an essential element of the plaintiffs case, the judgment must be vacated and this case remanded for a new trial.

1. Norfolk Southern contends that the trial court erred in granting Everett’s pretrial motion in limine on the issue of whether Everett was within the zone of danger. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” (Citation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). The undisputed facts relevant to the resolution of this question of law are as follows.

This is the second appearance of this case before us. In Norfolk Southern R. Co. v. Everett, 299 Ga. App. 420 (682 SE2d 621) (2009) (“Norfolk I”), we affirmed an order of the trial court denying Norfolk Southern’s motion for summary judgment on Everett’s FELA claim. Specifically, we held that the trial court correctly found that Everett had presented sufficient evidence from which a reasonable factfinder might conclude that he was within the zone of danger, a legal prerequisite for a finding of liability in a negligent infliction of emotional distress case. As the plaintiff presented sufficient evidence demonstrating a disputed issue of material fact, we held that the trial court correctly denied Norfolk Southern’s motion for summary judgment. Id. at 425-426.

The facts of this case were summarized in Norfolk I as follows:

[O]n March 6, 2006, Everett was employed as an engineer for Norfolk Southern and was tasked with moving a six-car train filled with auto parts down an incline into the Ford Hapeville auto plant. Assisted by two other Norfolk Southern employees standing on the outside of the leading railroad car, Everett operated the locomotive that pushed the cars toward the Ford plant. One of the employees misinformed Everett that the train derailment device was in the “off” position when in fact it was in the “on” position. Acting at the direction of his supervisor, Everett moved the train forward, and, due to the position of the derailment device, the cars began derailing about 150 feet from the plant’s entrance. The derailed cars continued toward the plant, and the train’s emergency brakes immediately activated. Everett, assuming that the train had derailed, quickly applied the engine brakes. Before the train came to a complete stop, it traveled approximately 300 feet from the point of derailment, causing a total of three of the train’s six cars to derail, with two of those cars crashing into the Ford plant, setting off a fire alarm light and the building’s fire sprinklers. Everett was “slightly pulled” in his seat during the incident but suffered no physical injury. Everett made unanswered radio calls to the two other employees and waited in the locomotive until someone came to him and announced the derailment and that no one had been hurt. When Everett went home, he experienced severe emotional distress from the incident, resulting in his temporary hospitalization. He has not been able to return to work.

(Punctuation omitted.) Id. at 421.

In Norfolk I, we set forth the law applicable to the zone of danger test, id. at 421-423, which we reiterate here. Negligent infliction of emotional distress is a cognizable claim under FELA. Consolidated Rail Corp. v. Gottshall, 512 U. S. 532, 549-550 (III) (A) (114 SC 2396, 129 LE2d 427) (1994). In Gottshall, the High Court held that, “as part of its ‘duty to use reasonable care in furnishing its employees with a safe place to work,’ a railroad has a duty under FELA to avoid subjecting its workers to negligently inflicted emotional injury.” (Citation and punctuation omitted.) Id. Because that duty “is not self-defining[,]” id., the Supreme Court adopted the zone of danger test to define the scope of the duty FELA places on employers to avoid imposing emotional distress on their employees. The zone of danger test, the Court said, was “well established” when FELA was passed in 1908, id. at 554 (III) (C), is still presently in use in many states, id. at 555 (III) (C), and is “consistent with FELA’s central focus on physical perils.” Id.

Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not. Railroad employees thus will be able to recover for injuries — physical and emotional — caused by the negligent conduct of their employers that threatens them imminently with physical impact.

Id. at 556 (III) (C). Thus, under the zone of danger test adopted in Gottshall, the railroad employer’s duty under FELA for the negligent infliction of emotional distress is limited to “those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of a physical harm by that conduct.” Id. at 547-548 (II) (B). As we explained in Norfolk I, “[t]he zone of danger inquiry is necessarily fact-based,” and requires a review of the unique risks to which a plaintiff is exposed in each case. 299 Ga. App. at 423. But, because the zone of danger test resolves a question of duty based upon an objective evaluation of the facts demonstrating the physical risk to which the employee was exposed, whether an employee was within the zone of danger may be, in most cases, resolved by the court. If the facts cannot be resolved by the court, however, then whether the plaintiff was within the zone of danger remains an issue for the jury upon proper instructions.

After this Court affirmed the trial court’s denial of summary judgment in Norfolk I and remanded the instant case, Everett filed a motion in limine moving the trial court for an order preventing Norfolk Southern from arguing to the jury that he was not within the “zone of danger.” Specifically, Everett moved the court for the following:

[Norfolk Southern] must be prohibited from arguing that Plaintiff Everett was not within the “zone of danger” when the train derailed, that Everett’s apprehension of physical harm as a result of the derailment was unreasonable!,] or that he was not exposed to an immediate risk of physical harm as a result of the derailment and ensuing collision. These arguments speak to questions of law that have been decided in Plaintiff’s favor by this Court and the Georgia Court of Appeals.

The trial court granted the motion in limine, holding that “a FELA action is a creature of federal law and, under federal law, the zone of danger test is a legal question for the Court.” Although the trial court noted that, in Norfolk I, this Court held that disputed issues of fact remained for jury resolution, it nevertheless concluded, based upon other statements in our opinion, that the zone of danger issue “does not appear to be subject to jury determination” and that “there does not appear to be disputed issues of fact underlying this question in any event.” Without entering a summary judgment on the issue in Everett’s favor, which would have been directly appeal-able pursuant to OCGA § 9-11-56 (h), the trial court granted Everett’s motion in limine, barring Norfolk Southern from presenting evidence on or making argument concerning whether Everett was within the zone of danger. The court’s order was erroneous for the following reasons.

The record reveals that only Norfolk Southern moved for summary judgment. The question the railroad presented to the trial court was whether Everett’s claim for negligent infliction of emotional distress was cognizable as a FELA claim under the facts of this case. This inquiry required an analysis of whether the objective evidence, viewed in the light most favorable to the nonmovant, placed Everett outside the zone of danger as a matter of law. The trial court denied Norfolk Southern’s motion, holding that it could not conclude that Everett “was not within the zone of danger or that the fears experienced by [him] . . . were unreasonable under the circumstances.” Thus, the trial court did not rule as a matter of law that Everett was within the zone of danger, in essence granting summary judgment to Everett on this issue, but only that the undisputed evidence did not establish that he was outside of it. Although the trial court’s order contained statements suggesting that the evidence adduced by Everett demonstrated that he was within the zone of danger, the trial court never expressly issued such a ruling nor did it conclude that Everett’s account of facts was undisputed, and one may not infer from the denial of a motion for summary judgment that the facts have been resolved conversely in the opponent’s favor. See Northside Equities v. Hulsey, 275 Ga. 364, 365 (567 SE2d 4) (2002) (“It is important to remember that this case is not at a stage of presenting evidence to a factfinder in order to resolve issues of fact. This case involves summary judgment, and the non-movant is not required to produce evidence demanding judgment for that party, but only to present evidence which raises a material issue of fact.”). Finally, when a court denies summary judgment, it does not actually resolve the issues presented such that they have the conclusive effect of a judgment. Thus, a party’s renewed or second motion for summary judgment on the same issue may be considered, even if no new evidence has been introduced since the denial of the first motion for summary judgment. See, e.g., Southeastern Metal Products v. Horger, 166 Ga. App. 205, 206 (1) (303 SE2d 536) (1983).

Pursuant to a granted interlocutory appeal, Norfolk Southern challenged the trial court’s order denying its motion for summary judgment, and we affirmed the trial court’s order on that narrow legal issue. Finding that Everett presented sufficient evidence to dispute the facts presented by Norfolk Southern, we held: “[W]e cannot conclude that Everett was, as a matter of law, outside the zone of danger here.” Norfolk I, 299 Ga. App. at 425-426. Although this Court, like the trial court, made statements which could be construed as a belief that the evidence adduced by Everett showed that he was within the zone of danger, our appellate review was necessarily limited to the scope of the ruling in the trial court. Coweta County v. Simmons, 269 Ga. 694 (507 SE2d 440) (1998); Adamson v. Adamson, 220 Ga. App. 716, 718 (2) (470 SE2d 289) (1996) (“The scope of our review is limited to the scope of the ruling in the trial court as shown by the trial record.”) (citations and punctuation omitted). See also Capital Land USA v. Mitsubishi Motors Credit &c., 308 Ga. App. 71, 73 (1) (706 SE2d 590) (2011). (“It is well established that this Court is limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.”) (citation and punctuation omitted). Thus, in Norfolk I, our review was limited to the issue actually adjudicated by the trial court and which was before us on appeal, that is, whether the undisputed facts entitled Norfolk Southern to summary judgment as a matter of law. Coweta County v. Simmons, 269 Ga. at 694. Any statements of opinion beyond the scope of our holding were obiter dicta, and dicta does not constitute the law of the case. Because Everett did not move for summary judgment in his favor in the trial court and obtain a ruling on that issue, whether the facts demanded a judgment in his favor was not before us and we were without authority to consider it. Id.

[D]ue process requires that a party be given reasonable opportunity to contest a claim that there are no genuine issues of material fact. There having been no notice to [Norfolk Southern] that the Court of Appeals might consider the merits of the issue [of whether Everett was within the zone of danger as a matter of law], a holding that [is] tantamount to an award of summary judgment against [it], would deny [it] due process.

(Citations omitted.) Id. Therefore, because neither the trial court in its summary judgment order nor this Court in Norfolk I ruled as a matter of law that the undisputed facts established that Norfolk Southern owed Everett a legal duty under the zone of danger test, that question remained for jury resolution and it was incumbent upon Everett to prove that element of his case by a preponderance of the evidence.

Finally, the trial court’s ruling on Everett’s motion in limine was not harmless. It relieved Everett of his burden of proving by a preponderance of the evidence that Norfolk Southern owed him a legal duty of care, a duty that is defined by the zone of danger test. It prevented Norfolk Southern from effectively arguing a key element of its defense, that Norfolk Southern owed Everett no legal duty based upon its position that Everett was outside the zone of danger. Even the trial court’s ruling denying Norfolk Southern’s motion for a directed verdict was based upon an assumption that the zone of danger question had already been decided rather than upon a reasoned assessment of’ the facts adduced at trial. Finally, it improperly took from the jury the question of whether the facts supported, by a preponderance of the evidence, that Everett was within the zone of danger such that his claim for the negligent infliction of emotional distress is cognizable under FELA. The court rejected Norfolk Southern’s written request to charge the jury concerning the zone of danger test, denying it the framework of legal principles necessary for a proper determination of the scope of Norfolk Southern’s duty and whether damages for mental anguish could appropriately be awarded given the scope of that duty. Instead, it charged the jury that “the only issue for you to decide is what [of Everett’s] damages, if any, were legally caused in whole or in part by the derailment event.”

Because the trial court erred in granting Everett’s motion in limine, and because that error was not harmless, the jury’s verdict must be vacated and this case remanded for a new trial.

2. Because we can only speculate about how the evidence and any argument upon that evidence would have been different but for the trial court’s ruling on Everett’s motion in limine, it is impossible for this Court to engage in any meaningful review of whether Norfolk Southern would have been entitled to a directed verdict or whether the jury charges it requested, even if legally correct, were adjusted to the evidence. Consequently, Norfolk Southern’s remaining claims of error, that the trial court erred in denying its motion for a directed verdict and in refusing to give certain jury charges, are declared moot.

3. Everett’s motion for frivolous appeal penalties is denied.

Judgment vacated and case remanded for new trial.

Smith, P. J., Phipps, P J., and Andrews, J., concur. Miller, P. J., Doyle and McFadden, JJ., dissent.

MILLER, Presiding Judge,

dissenting.

While I concur fully with the dissent of Judge Doyle, I write separately to emphasize the explicit holding of Norfolk Southern R. Co. v. Everett, 299 Ga. App. 420 (682 SE2d 621) (2009) (“Norfolk /”) is the law of the case. In light of the trial court’s finding, this Court in Norfolk I, supra, 299 Ga. App. at 420, 423, held that “the trial court correctly concluded that Everett was within the zone of danger caused by the [train] derailment” as a matter of law. Whether rightly or wrongly decided, the train has already left the station and this Court’s holding in Norfolk I established the law of the case. See OCGA § 9-11-60 (h) (“[A]ny ruling by . . . the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in . . . the Court of Appeals . . . .”) (punctuation omitted); see also Hicks v. McGee, 289 Ga. 573, 577-578 (2) (713 SE2d 841) (2011).

I write further to emphasize that, in this case, had the evidence presented a disputed fact on the zone of danger issue, then I would agree with the majority that the issue would be one for the jury to decide. The majority, however, has not cited to any evidence in the record that presented a disputed issue of fact on the matter. For this reason, the trial court properly applied the holding of Norfolk I at trial by excluding any arguments regarding the zone of danger issue, and instead limiting the trial to the remaining issues of breach of duty, causation, and damages.

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

DOYLE, Judge,

dissenting.

I respectfully dissent. Under FELA, the zone of danger question is always a legal issue for resolution by the trial court, not the jury. This is true irrespective of whether certain facts about a railroad injury are in dispute.

Earlier in this case, the trial court properly addressed and denied Norfolk Southern’s motion for summary judgment based on the record at the time of the motion, which denial was affirmed by this Court in Norfolk I. Later, at the close of trial, Norfolk Southern moved for a directed verdict on the zone of danger issue based on the evidence adduced at trial, and the trial court appropriately and correctly denied that motion. As explained below, the trial court properly resolved the zone of danger question, and, in the absence of other error,1 would affirm the trial court’s judgment entered on the jury’s verdict.

1. Norfolk Southern argues that the trial court erred when it granted Everett’s motion in limine prohibiting it from arguing to the jury that Everett was outside of the zone of danger. I find no error.

FELA provides that a common carrier engaged in interstate commerce “shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” Negligence under FELA is a question of federal law, which generally turns on common law principles of negligence and injury.

“A FELA plaintiff must prove the traditional common law elements of negligence — duty, breach, damages, causation, and foreseeability.”

Duty is an essential element of negligence, and the determination of any question of duty — ... whether the law imposed upon the defendant the obligation to protect the plaintiff against the consequences which occurred — is a question of law, and is not for the jury. Thus, while a jury does indeed determine whether a defendant has breached a duty, the question of whether a duty exists in the first place remains with the court.

As described in Gottshall, the zone of danger test delineates the scope of a railroad’s “duty under FELA to avoid subjecting its workers to negligently inflicted emotional injury.” Thus, the scope of a railroad’s duty under FELA, as delineated by Gottshall’s zone of danger test and as applied in subsequent federal cases following its precedent, remains a legal question for resolution by the court.

In light of this framework, I disagree with the majority’s conclusion that the trial court “improperly took from the jury the question of whether the facts supported, by a preponderance of the evidence, that Everett was within the zone of danger such that his claim for the negligent infliction of emotional distress is cognizable under FELA.” The zone of danger analysis defines the legal duty owed to Everett, and determining the limits of this duty was a legal question reserved solely for the trial court. That there could be factual disputes material to resolving the zone of danger question does not change the rule that the trial court must ultimately decide the legal question of whether Everett was within the zone of danger. In the case before us, the trial court properly made the decision no less than three times, the final time at the close of the evidence at trial.

As astutely noted by the trial court, our opinion in Norfolk I was inartfully worded and confusing on this issue. Nevertheless, this Court determined in Norfolk I that “because of the nature of the incident here, a three-car train derailment and two-car building collision, . . . Everett met his burden under Gottshall”] thus, we held that “[b]ecause the trial court correctly concluded that Everett was within the zone of danger caused by the derailment, we affirm.” The summary judgment standard of review did not impede resolution of the legal question at the summary judgment stage because there was no genuine dispute of material fact. The trial court’s summary judgment order we affirmed in Norfolk I reveals a clear ruling by the trial court adjudicating the merits of the zone of danger issue — not a ruling identifying a factual dispute precluding summary judgment:

On the question of whether the Plaintiff was in immediate risk of physical harm, or, as the Defendant has framed the question, whether the Plaintiff has demonstrated “a reasonable apprehension of physical harm,” the [trial c]ourt concludes that the Plaintiff has shown that he was in such immediate risk of physical harm and that his apprehension of physical harm was reasonable.

Thus, the trial court’s order resolved the issue, and resolution of potentially dispositive legal questions is routinely done by way of a defendant’s motion for summary judgment. Norfolk I affirmed that disposition, and it should be viewed no differently, despite our recitations of the summary judgment standard for addressing factual issues.

Furthermore, at trial Norfolk Southern moved for a directed verdict at the close of the evidence and again argued that the evidence — as adduced at trial — demonstrated that Everett was not within the zone of danger. To the extent that the trial evidence shed new light on the zone of danger issue, Norfolk Southern might have made a meritorious argument warranting the grant of a directed verdict. But here, the evidence before and during trial was essentially consistent, i.e., Everett was driving a six-car train, three cars derailed, and two collided with a building. There was, at trial, a variation in the witnesses’ estimates of the length of each car, so there was some difference in the estimate of the distance between Everett and the building collision, but this difference was not sufficient to alter the trial court’s conclusion, nor ours in this appeal. Thus, the trial court again properly considered Norfolk Southern’s argument based on the trial evidence and correctly denied the motion, leaving nothing for resolution by the jury on the zone of danger issue.

Nevertheless, even if the majority is correct that , “neither the trial court nor this Court determined as a matter of law that Norfolk Southern owed Everett a legal duty under the zone of danger test,” that did not convert the issue into a jury question. The zone of danger issue, as always, remained for the trial court. Thus, a new trial is not necessary, and on remand the trial court could explicitly (and again) resolve the issue and enter a judgment accordingly.

Because the zone of danger issue was a legal question for the trial court, and because the trial court appropriately addressed and resolved the question at each stage of litigation, I respectfully disagree with the majority’s conclusion that Norfolk Southern was entitled to present argument to the jury that Everett was not within the zone of danger. Therefore, in my view, the trial court correctly prohibited Norfolk Southern from making such an argument.

It is, however, necessary to evaluate whether the scope of the motion in limine was in some way overly broad or improperly limited Norfolk Southern’s ability to litigate the remaining issues: breach of duty, causation, and damages. The question of breach was conceded by Norfolk Southern, so the focus of the trial was appropriately limited to causation and damages. The trial court’s order granting the motion in limine did not exclude any evidence. Instead, it simply prohibited Norfolk Southern from arguing that Everett was not in the zone of danger. A review of the record shows that Norfolk was allowed to elicit and examine the material facts surrounding the derailment, and it was allowed to argue that Everett’s actual risk of injury was too trivial to have caused him emotional harm. The trial court even gave a jury charge stating that FELA only authorizes recovery for injuries resulting “from a reasonable apprehension on [the plaintiffs] part that he was at risk of imminent physical harm.” Under these circumstances, the grant of the motion in limine was not so broad as to have harmed Norfolk Southern.

2. Norfolk Southern also contends that the trial court erred when it denied its motion for directed verdict on the zone of danger issue. Normally, the denial of a motion for a directed verdict on evidentiary grounds is reviewed on appeal under the “any evidence” standard. But Norfolk Southern’s argument was premised on the legal determination that Everett was in the zone of danger, so we apply the de novo standard.

Decided December 1, 2011

Reconsideration denied December 16, 2011

Weissman, Nowack, Curry & Wilco, William C. Thompson, for appellant.

Michael J. Warshauer, Douglas C. Dumont, Lyle G. Warshauer, for appellee.

Norfolk Southern supported its motion by reviewing the factual circumstances as presented at trial and emphasizing any favorable discrepancies. Based on the trial evidence, Norfolk Southern again argued that Everett was outside the zone of danger. The trial evidence and renewed argument was not sufficiently different to persuade us to change our conclusion from Norfolk I, i.e., that Norfolk Southern had a duty of care to Everett under the circumstances of this train derailment and building collision.

In light of the trial court’s appropriate rulings on the zone of danger question, I would affirm the judgment entered on the jury’s verdict.

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

       Under federal law, “[wlhether an employee’s claim satisfies the zone of danger test is a legal question, which [an appellate court] review[s] de novo.” (Citations omitted.) Smith v. Union Pacific R. Co., 236 F3d 1168,1170 (I) (10th Cir. 2000); K. A. C. v. Benson, 527 NW2d 553, 558 (a) (Minn. 1995) (“[w]hether plaintiff is within a zone of danger is an objective inquiry”). See also Nelson v. Metro-North Commuter R., 235 F3d 101, 113 (II) (D), n. 12 (2d Cir. 2000) (“unlike the question of whether there is negligence or not, the inquiry into the weightiness of the physical risk to which a plaintiff is exposed, would, even in FELA cases, be performed by courts and not primarily by juries”) (emphasis supplied).

       See Gentry v. Norfolk Southern R. Co., 1997 Tenn. App. LEXIS 505 (Tenn. Ct. App. July 22, 1997) (jury verdict in FELA case affirmed; trial court properly instructed jury on zone of danger). See also City of Mobile v. Taylor, 938 S2d 407 (Ala. Civ. App. 2005) (In non-FELA negligent infliction of emotional distress case, the trial court erred in refusing to give a jury charge on the zone of danger. The appellate court observed: “The trial judge refused to give the requested instruction because he concluded that whether the plaintiffs were actually in a zone of danger was a question of law for the judge. That is not a correct conclusion, at least where, as here, the facts are in dispute. It appears that the trial court was led astray by an analogy to those cases that hold that duty is a question of law for the court.”) (citations omitted).

       See Pattern Jury Instructions, 11th Cir. 2005, Federal Claims Instructions § 7.1, p. 371 (zone of danger test).

         In concluding that Everett was within the zone of danger, the trial court quotes this portion of our opinion: “[B]ecause Everett was actually on the train as half of its cars derailed and two cars collided into a building, the 300-foot distance did not remove him from the zone of

        danger in this case.” (emphasis supplied by trial court).

       See Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008) (The language in the cases relied upon by the appellant “was obiter dicta lacking the force of an adjudication because it was a statement in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand.”) (citations and punctuation omitted). See also Rivers v. Brown, 200 Ga. 49, 52 (36 SE2d 429) (1945) (“An adjudication on any point within the issues presented by the case cannot be considered a dictum, and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement in the opinion as to a matter on which the decision is predicated.”) (citation and punctuation omitted).

       See South Ga. Med. Center v. Washington, 269 Ga. 366, 367 (1) (497 SE2d 793) (1998).

       To recover under a FELA negligence claim, a plaintiff must prove by a preponderance of the evidence “traditional common law elements of negligence: duty, breach, foreseeability, and causation.” (Citations and punctuation omitted.) Bagley v. CSX Transp., 219 Ga. App. 544, 545 (1) (465 SE2d 706) (1995). See also Leonard B. Sand et al., 4 Modern Federal Jury Instructions (Civil; FELA) § 89.04, at 89-27 (2011) (accord).

       I respectfully disagree with the majority’s suggestion that the holding of Norfolk I was mere “dicta,” as opposed to the law of the case. See South Ga. Med. Center v. Washington, 269 Ga. 366, 367 (1) (497 SE2d 793) (1998) (“An adjudication on any point within the issues presented by the case cannot be considered a dictum, and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement in the opinion as to a matter on which the decision is predicated.”) (citation and punctuation omitted). The trial court’s order reviewed in Norfolk I made a finding “that [Everett] has shown that he was in such immediate risk of physical harm and that his apprehension of physical harm was reasonable.” This Court in Norfolk I affirmed the trial court’s express finding on the zone of danger issue, and therefore its holding was not dictum. See id.

       See Smith v. Union Pacific R. Co., 236 F3d 1168, 1170 (I) (10th Cir. 2000); Nelson v. Metro-North Commuter R., 235 F3d 101, 113 (II) (D), n. 12 (2d Cir. 2000); K. A. C. v. Benson, 527 NW2d 553, 558 (a) (Minn. 1995); Bloom v. Consolidated Rail Corp., 41 F3d 911, 913 (I) (3d Cir. 1994).

       In the present case, there essentially was no dispute about the actual circumstances of the derailment in which Everett was involved. Thus, procedurally, once presented with the facts (first on summary judgment and again on motion for directed verdict), it was up to the trial court to determine if Everett was within the zone of danger, i.e., whether Norfolk Southern owed Everett a duty. But if, for example, the circumstances of a railroad injury are in material dispute, such as the engineer claims to have been located on the same track (track A) as an explosion/derailment, but the railroad presents evidence that the engineer was actually located safely on track B, then this factual dispute — track A versus track B — would need to be resolved by the jury. Nevertheless, the court would decide whether or not the engineer was within the zone of danger of the derailment if he is found to have been located on track A by the jury. Procedurally, if the jury finds that the engineer was located on track B, a directed verdict in favor of the railroad is proper because the engineer was outside the zone of danger and was owed no duty by the railroad. If the jury finds the engineer was located on track A, the court having already decided that a legal duty exists in this scenario, then the jury would proceed to resolving the remaining elements of the tort claim, e.g., breach, causation, and damages. See, e.g., State Farm Fire & Cas. Co. v. Owen, 729 S2d 834, 840 (Ala. 1998).

        Norfolk Southern R. Co. v. Everett, 299 Ga. App. 420 (682 SE2d 621) (2009).

       The majority does not address the remaining enumerations.

       My review of the record leads me to conclude that the motion in limine ruling was confined to deciding what argument Norfolk Southern could present to the jury, and it did not meaningfully limit the evidence presented at trial. Everett’s motion in limine sought only to
      prohibit Norfolk Southern from arguing that Plaintiff Everett was not within the “zone of danger” when the train he was on derailed, that Everett’s apprehension of physical harm as a result of the derailment was unreasonable!,] or that he was not exposed to an immediate risk of physical harm as a result of the derailment and ensuing collision.
      The trial court’s order granted Everett’s motion on the ground that the zone of danger issue is not “subject to jury determination . . . and there does not appear to be [a] disputed issue of fact underlying this question in any event.” While Norfolk Southern argues that this ruling limited its ability to present its defense at trial, the motion in limine did not materially limit the evidence adduced at trial, and Norfolk Southern proffers no evidence that was improperly excluded.

       45 USC § 51.

       See Consolidated Rail Corp. v. Gottshall, 512 U. S. 532, 543 (114 SC 2396, 129 LE2d 427) (1994).

        Stevens v. Bangor & Aroostook R. Co., 97 F3d 594, 598 (II) (1st Cir. 1996). Foreseeability has never been an issue in this case.

       (Emphasis supplied.) Fulk v. Rlinois Central R. Co., 22 F3d 120,125 (II) (7th Cir. 1994). See also Rasnick v. Krishna Hospitality, Inc., 289 Ga. 565, 567 (713 SE2d 835) (2011) (“The existence of a legal duty is a question of law for the court.”); Smith, 236 F3d at 1170 (FELA case); Nelson, 235 F3d at 113, n. 12 (FELA case); K. A. C„ 527 NW2d at 558 (a) (FELA case).

        Gottshall, 512 U. S. at 550 (III) (A).

       See, e.g., Smith, 236 F3d at 1170 (I); Nelson, 235 F3d at 113 (II) (D), n. 12. Gentry v. Norfolk Southern R. Co., 1997 Tenn. App. LEXIS 505 (Term. Ct. App. July 22, 1997), relied upon by the majority as an example of a jury resolving the zone of danger question, is inapposite. That case addressed a scenario where the injured employee suffered a fatal heart attack while investigating a train derailment as part of his employment with the railroad’s police department. His claim alleged that the railroad was negligent in failing to diagnose his heart disease, in failing to warn him of his condition, and in continuing to place him in a stressful work environment. In that case, the jury instruction at issue focused on the Supreme Court’s refusal to allow recovery under FELA solely for stress in the ordinary course of employment. The viability vel non of stress-related claims is not relevant to the claim presented here. Similarly inapposite is City of Mobile v. Taylor, 938 S2d 407 (Ala. Civ. App. 2005), which was a non-FELA case.

       Cutting through the bewildering legal thicket created by our emphasis of the summary judgment standard in Norfolk I, the trial court keenly observed in its 'order granting the motion in limine that the zone of danger issue was not one for the jury.

        Norfolk I, 299 Ga. App. at 424.

        Id. at 420.

       See, e.g., Rasnick, 289 Ga. at 566-567 (resolving as a matter of law the scope of an alleged tortfeasor’s legal duty while adjudicating the defendant’s motion for summary judgment).

       (Citation omitted.)

       See, e.g., Rasnick, 289 Ga. at 567 (1).

       Even Norfolk Southern in its brief characterizes the zone of danger issue as a legal question for the trial court. It argues: “Everett still had to establish at trial that he was in the ‘zone of danger;’ the trial court had to make that legal decision based on the evidence present at trial; and this Court reviews such a decision as reviewing an error of law.” (Emphasis supplied.) Thus, neither party is arguing that the zone of danger question is for the jury.

       Indeed, after ruling on the directed verdict motion on the zone of danger issue, the trial court explicitly stated “I still think you can argue everything you just argued. [‘]There shouldn’t be any award. [Everett] didn’t know about [the derailment or building collision]. . . . [Everett] sat there for 30 minutes. This is a cumulative thing. We don’t think it caused his mental illness.]’] I just don’t think you can argue that he was not in the' zone of danger.” Consistent with this, Norfolk Southern argued to the jury that Everett lacked any apprehension of harm based on the relative safety of his position on the engine 500 feet away from the building collision.

       (Emphasis supplied.) To the extent that this instruction was functionally a zone of danger charge, any resulting error benefitted Norfolk Southern and was harmless.

       See F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

       See Bloom, 41 F3d at 913 (I).


author: BARNES, Presiding Judge.

text:
    A11A1025.
    OMNI BUILDERS RISK, INC. v. BENNETT.
    (721 SE2d 563)
   BARNES, Presiding Judge.

Omni Builders Risk, Inc., n/k/a Best Value Insurance Services, Inc. (“Omni”) appeals from the order of the trial court enforcing a mediated settlement agreement between Omni and Lori Bennett. The trial court granted Bennett’s motion for partial summary judgment upon finding that the parties entered into a binding settlement agreement during mediation, and denied Omni’s cross-motion for summary judgment in which it had argued that Omni never entered into a binding settlement agreement. Upon our review, we reverse.

The relevant facts show that after Lori Bennett was terminated from Omni, she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) claiming that she was discharged because she had become pregnant shortly after employment. During the pendency of the EEOC claim, per Bennett’s employment contract with Omni, on November 2, 2008, the parties attended a mediation at which James Dillard, the president and majority shareholder of Omni, Bennett and their respective attorneys were present.

The four attendees signed a mediation agreement which provided guidelines for the mediation process. During the subsequent mediation, the parties preliminarily agreed to settle the claim for $65,000, after which the mediator prepared a “settlement memorandum” which had signature lines for both parties and their attorneys. The memorandum provided that Bennett would release all claims and withdraw the discrimination charge filed with the EEOC, and accept $65,000 in damages, and Omni would pay the mediation costs. The memorandum included a provision for $2,000 in liquidated damages for breach of the settlement agreement. Bennett and Dillard were in separate caucus rooms during this time, and Dillard’s attorney averred that the mediator prepared the memorandum after several hours of negotiation and took the proposal to Bennett and her attorney first for their signatures. After Bennett and her attorney signed the memorandum, the mediator took the memorandum to Dillard and his attorney. The attorney signed the document, but Dillard refused and left the mediation. The mediator returned to Bennett and her attorney and told them about the incident.

On May 20, 2009, Bennett sued Omni for breach of contract, expenses of litigation, and fraudulent inducement. She also filed a motion to enforce the settlement agreement. Omni answered and counterclaimed, alleging that the agreement was the result of a mutual mistake as to the applicability of Title VII and should be rescinded. Omni also asserted a counterclaim for breach of contract. On cross-motions for summary judgment, the trial court granted Bennett’s renewed motion to enforce her settlement agreement, which she restyled as a motion for summary judgment, and denied Omni’s motion. In its order, the trial court found that Bennett had presented a “straightforward breach of contract claim” because

the Settlement Memorandum, memorializing the terms of the oral agreement, is an enforceable written contract on its face. Based upon the theory of apparent authority, [Omni] is bound by the signature of its attorney. . . . Georgia law dictates that an agreement is enforceable against the client when an attorney of record has the apparent authority to enter into an agreement on behalf of his client.

The trial court further found pursuant to OCGA § 15-19-5, Rule 4.12 of the Uniform Superior Court Rules (“USCR”), and Brumbelow v. Northern &c. Co., 251 Ga. 674 (308 SE2d 544) (1983), that the attorney was acting as Omni when he signed the settlement memorandum, and “[i]f there was any restriction on [the attorney’s] authority, [Bennett] was unaware of it. Even after Dillard stormed out of the mediation, no one ever mentioned that he had refused to sign the document or otherwise did not agree to the terms on the Settlement Memorandum.”

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 judgment as a matter of law.” OCGA § 9-11-56 (c).

1. Omni first contends that the trial court erred in denying its motion for summary judgment because the uncontroverted evidence shows that Omni never entered into a binding settlement agreement. It maintains that the attorney did not possess apparent authority to bind Omni, and that thus there was no enforceable contract without Dillard’s signature.

“An attorney has apparent authority to enter into a settlement agreement on behalf of a client; and the client will be bound by such agreement, even in the absence of express authority, where the opposite party is unaware of any limitation on the attorney’s authority.” Devereaux v. C & S Nat. Bank, 172 Ga. App. 53 (322 SE2d 310) (1984); see Brumbelow v. Northern cfee. Co., supra. OCGA § 15-19-5 provides in pertinent part that “[attorneys have authority to bind their clients in any action or proceeding by any agreement in relation to the cause, made in writing . . . Likewise, under USCR 4.12, “[attorneys of record have apparent authority to enter into agreements on behalf of their clients in civil actions.”

“Apparent authority” is an agency concept which refers to an agent’s authority as it is apparent to third parties. Apparent authority is that which the principal’s conduct leads a third party reasonably to believe the agent has; it creates an estoppel allowing third parties to bind a principal to the agent’s acts on account of the principal’s conduct, reasonably construed by third parties acting in innocent reliance thereon. Where there were no manifestations of authority by the principal to a third party, apparent authority is not in issue.

(Citation omitted.) Morris v. Williams, 214 Ga. App. 526, 527 (2) (448 SE2d 267) (1994). The acts of the principal which create apparent authority may include “written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” (Citations and punctuation omitted.) Inti. Indem. Co. v. Odom, 174 Ga. App. 6, 7 (2) (329 SE2d 307) (1985).

This authority is determined by the contract between the attorney and the client and by instructions given the attorney by the client, and in the absence of express restrictions the authority may be considered plenary by the court and opposing parties. The authority may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties. Therefore, from the perspective of the opposing party, in the absence of knowledge of express restrictions on an attorney’s authority, the opposing party may deal with the attorney as if with the client, and the client will be bound by the acts of his attorney within the scope of his apparent authority.

(Citations omitted.) Rodebaugh v. Robbins, 180 Ga. App. 338, 339 (349 SE2d 195) (1986). “Such evidence must show that the principal either intended to cause the third person to believe that the agent was authorized to act for him, or he should have realized that his conduct was likely to create such belief.” (Citations and punctuation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 109 (2) (661 SE2d 578) (2008).

In this case, Bennett averred that she was never “informed or became otherwise aware that [Omni] placed any restriction or limitation on its lawyer’s representation,” and that she believed that Omni’s attorney “had full authority to act on [Omni’s] behalf.” In his affidavit, Omni’s attorney recalled that

[s]hortly after the mediation began, the parties moved to separate caucus rooms and remained there until the conclusion of the mediation. After several hours of negotiations, [the mediator] took a Settlement Memorandum to Bennett and her attorney. . . . He then returned with the Settlement Memorandum signed by both [Bennett’s attorney] and [Bennett], . . . [The mediator] handed me the Settlement Memorandum and I signed it. I did not sign it intending or expecting that my signature, alone, would bind [Omni] to the terms of the document because the document required [Dillard’s] signature as the principal.

He further averred that he would not have signed the document, had Dillard been offered the document first and refused to sign it.

In Powerhouse Custom Homes v. 84 Lumber Co., 307 Ga. App. 605 (705 SE2d 704) (2011), during a mediation session, the parties’ counsel signed a mediation agreement, but one party expressly rejected the settlement proposal. We found that the mediation agreement did not amount to an enforceable settlement of the suit, but by its express terms, the mediation agreement merely set forth a “proposal,” amounting to a settlement offer that was subject to acceptance or rejection.

Here, Dillard, the principal in the negotiations, was present during the mediation, and the Settlement Agreement expressly provided for his signature as the president of Omni. There was a separate line under the space provided for Dillard to sign for his attorney’s signature. Further, the mediation agreement signed by the parties at the start of mediation provided for signatures of all of the attendees as well. There was nothing in these circumstances indicating that Dillard’s attorney had apparent authority to act for Dillard.

“Apparent authority” is only indicated when the principal’s conduct leads a third party reasonably to believe the agent has authority to act for the principal. Where, as here, there were no manifestations of authority by the principal to a third party, apparent authority is not in issue. See Morris v. Williams, 214 Ga. App. at 527 (2).

Based on this evidence, Bennett had no reason to believe that Omni’s attorney had apparent authority to enter into the Settlement Agreement, notwithstanding Dillard’s refusal to sign. The document expressly reflected that Dillard’s signature was required, just as Bennett’s signature was required. The evidence did not show that Dillard either intended to make Bennett believe that the attorney was authorized to act for him, or realized that his conduct was likely to create such belief. Capital Color Printing v. Ahern, 291 Ga. App. at 109 (2).

Thus, because Omni’s attorney did not have apparent authority to bind it to the proposed Settlement Agreement and there was otherwise no enforceable settlement agreement, the trial court erred in denying Omni’s motion for summary judgment.

Decided November 29, 2011

Reconsideration denied December 16, 2011.

Gary Gerrard, M. Katherine Durant, for appellant.

Barrett & Farahany, Amanda A. Farahany, Eleanor M. Attwood, for appellee.

2. For the reasons discussed in Division 1, the trial court also erred in granting Bennett’s motion for partial summary judgment, and in enforcing the Settlement Agreement.

Judgment reversed.

Adams and Blackwell, JJ., concur in judgment only.

       Bennett could not recall if the other terms of the agreement were negotiated after the $65,000 figure was reached. In her deposition, she testified that she did not know if Dillard “agreed to the amount and then I decided ... I want the non-compete clause lifted, and then the EEOC [claim withdrawn], I don’t know how that transpired.”

       On May 26, 2009, the EEOC dismissed Bennett’s charge of discrimination upon finding that Omni did not have the required number of employees and thus was not an “employer” for purposes of Title VII.


text:
    A11A1149.
    HARRIS et al. v. THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, INC. et al.
    (721 SE2d 906)
   BARNES, Presiding Judge.

The Southern Christian Leadership Conference, Inc. (“SCLC”), its Board of Directors, and three individuals (collectively, “SCLC”) sued six former or current members of its Board of Directors (“the Defendants”), seeking an order enjoining them from interfering with the SCLC’s corporate governance or with its use and enjoyment of the corporate headquarters. The SCLC also sought a declaratory judgment identifying its board members and officers, alleging that the Defendants had breached their fiduciary duty to the corporation, and seeking the repayment of corporate money the Defendants used to pay legal fees in a previous lawsuit. The SCLC also sued Wachovia Bank, N.A., and Citizens Trust Bank, seeking an injunction directing that the SCLC accounts be controlled by the Board of Directors.

Following a lengthy hearing, the trial court issued a thoughtful, detailed, 37-page order granting a permanent injunction against the Defendants from interfering with the SCLC’s governance, from interfering with the SCLC’s use of its property and assets, and from holding themselves out as corporate officers unless they are reelected, reinstated, or appointed by the Board. The court also declared the identity of the members of the Board of Directors as of June 1, 2010, and held that acts taken by that board and its successors in accordance with the SCLC’s constitution and bylaws were binding on the corporation.

The trial court found that the bank accounts at Wachovia and Citizens Trust should be managed and controlled by the Board of Directors, and ordered the banks to lift any freezes on the accounts and to grant access to authorized representatives of the Board. The court then found that some of the Defendants breached their fiduciary duties to the SCLC by using corporate funds to pay for the previously-dismissed lawsuit, the institution of which was not approved by the Board of Directors, and entered judgment against three of the six Defendants for $12,240.

In a separate order, the trial court denied the Defendants’ motion to disqualify the SCLC’s attorney, their motion seeking a hearing on allegations of perjury, and the SCLC’s motion to disqualify the Defendants’ attorney. The Defendants enumerate seven errors on appeal, and for the reasons that follow, we affirm.

A permanent injunction is proper in “clear and urgent cases” to prevent a party from being damaged and left without an adequate legal remedy, and we review a trial court’s grant of a permanent injunction for a manifest abuse of discretion. (Citation omitted.) Smith v. DeKalb County, 288 Ga. App. 574, 576 (2) (654 SE2d 469) (2007). We review issues of law de novo, applying the “plain legal error” standard of review. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). In contrast, with respect to factual issues we construe the evidence in favor of the trial court’s findings and affirm if there is any evidence to support them, regardless of whether the evidence would also support opposite findings. Cannon Air Transport Sues. v. Stevens Aviation, 249 Ga. App. 514, 516 (2) (548 SE2d 485) (2001). Guided by these principles, we turn to the record in the present case.

This dispute arose after two factions emerged following a disagreement among the members of the SCLC’s National Board of Directors (“Board Members”).

The SCLC is a nonprofit corporation, to which “the fundamental rules and principles of law of profit and business corporations are equally applicable,” unless otherwise specifically noted in the Georgia Nonprofit Corporation Code. Shorter College v. Baptist Convention of Ga., 279 Ga. 466, 469 (1) (614 SE2d 37) (2005). A nonprofit corporation must have a board of directors, and “all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, its board.” OCGA § 14-3-801 (a), (b). A corporation’s bylaws “may authorize a person or persons to exercise some or all of the powers which would otherwise be exercised by a board.” OCGA § 14-3-801 (d).

The SCLC’s constitution and bylaws define which of the corporation’s members are entitled to vote during the annual meeting to elect a Board of Directors, whose members serve staggered three-year terms. The Board Members then elect national officers, and six of those officers, in addition to five more members appointed by the Chair, constitute the Executive Committee. The bylaws also provide that the Executive Committee may act for the Board of Directors. Both sides agree that the SCLC held its Annual Convention and properly elected 44 Board Members in August 2009, who then elected national officers, including an interim president. The trial court found that the Board Members met on October 29, 2009, to elect an incoming president. During the meeting, allegations arose regarding sexual harassment claims against Board Member Raleigh Trammell, who had been elected Chair of the Board, and allegations of financial improprieties by both Trammell and Board Member Spiver Gordon, who had been elected Treasurer. Board Members called for an investigation, and an advisor to the Board recommended that Trammell and Gordon step aside as officers during the investigation.

The Board Members held several meetings in November 2009 to address the issue of Trammell and Gordon continuing to serve as the Chair and Treasurer while being investigated. During one meeting, a resolution was introduced seeking to remove the two men from their positions as officers until the investigation was completed, but it was apparently never put to a vote. Notice of a second meeting in November 2009 indicated that one purpose was to remove Trammell and Gordon from the Board of Directors until the investigation was complete. The Vice Chair testified that a quorum of the Board of Directors was present during the meeting, at which the Board Members voted to temporarily remove the two men from their positions as officers until the investigation was completed.

As the trial court put it, “[t]wo distinct factions [of the SCLC Board] developed in the November to December time frame.” One faction included Gordon and Trammell, and the other faction included Tucker. Members of Gordon and Trammell’s faction filed suit against members of Tucker’s faction on December 28, 2009 (“the 2009 lawsuit”), alleging that those defendants had conducted meetings without notice, sought to remove and replace Board Members improperly, changed locks on SCLC property, and improperly handled SCLC bank accounts.

The trial court issued three temporary consent orders providing, among other things, that the SCLC’s corporate structure would remain as it was on October 29, 2009, with Trammell and Gordon serving as the Chair and Treasurer, respectively. In March 2010, the SCLC moved to intervene as a party, and in April 2010, the trial court granted the motion. The court ruled that the SCLC itself was an indispensable party, ordered it joined as a plaintiff, vacated all of its consent orders, held that all actions taken pursuant to those orders had no force or effect, and declared that the parties be returned to the status they held before entry of the now-void orders. Four days later, the 2009 lawsuit was dismissed. Three days after the dismissal, on April 19, 2010, the SCLC filed the petition for injunctive relief and a declaratory judgment that is before this court on appeal.

Between June 2 and July 2, 2010, the trial court heard 11 days of testimony by 27 witnesses. The hearing transcript is lengthy, and the exhibits included in the 30-volume record are voluminous. In its order, the trial court set out in great detail the evidence and contentions of the parties, as well as its findings and conclusions, which we will not reiterate in detail.

1. The Defendants contend that the trial court erred in finding that their meetings were not valid under the SCLC’s constitution and bylaws, and tbat the actions taken at those meetings were void. The trial court carefully analyzed the facts and issues surrounding a December 2009 meeting, before the previous suit was filed, and concluded that the Defendants did not obtain the approval of the Board of Directors to file that suit. The court also determined that no quorum was present for a meeting on January 20, 2010, and thus any actions taken at that meeting were not actions of the Board. The court found that no notice was given for meetings of the purported Executive Committee on January 29, 2010, February 25, 2010, or March 7, 2010, which were chaired by Trammell and attended by Gordon, and thus actions taken during those meetings were void. Those void actions included attempts to reconstitute the Board of Directors by naming new members, a power specifically reserved to the Board and not allowed to be exercised by a committee. OCGA § 14-2-825 (d) (2). Accordingly, participants at those meetings could not have properly set the SCLC’s spring board meeting in Eutaw, Alabama on April 20, 2010; therefore actions taken at that meeting were also void.

After a thorough review of the record, we find no error in the trial court’s findings of fact and conclusions of law related to meetings conducted by the Defendants.

2. The Defendants contend that the trial court erred in finding that meetings held by the plaintiffs’ faction of the SCLC Board of Directors on April 10, 2010, April 19, 2010, and June 1, 2010, were legal and in conformity with the SCLC’s constitution and bylaws. The court also found that the April 20, 2010 spring board meeting in Atlanta by the plaintiffs’ faction was not properly noticed and that the May 11, 2010 meeting lacked a quorum, so any actions taken at those meetings were null and void. As noted earlier, we review the trial court’s findings of fact to determine whether “any evidence” supports them, and we conclude that the evidence of record does so. We further find no error in the trial court’s application of law to the facts.

3. The Defendants argue that even if the plaintiffs’ meetings were proper, the removal of any Board Members during those meetings was improper. The trial court held that the meetings on April 10, 2010, April 19, 2010, and June 1, 2010, were held in accordance with Georgia law and the SCLC’s constitution and bylaws, and under OCGA §§ 14-3-808 (removal of directors), 14-3-843 (resignation and removal of officers) and Article III, Section 6 of the SCLC’s constitution and bylaws, the Board of Directors had the authority to remove and replace directors and officers. Therefore, the court concluded, the current SCLC directors and officers were “those individuals [who] were members of the Board who were elected at the August 2009 convention and who have not been removed by the actions of the Board of Directors at meetings this Court has held to be legally conducted.” Finally, the court held that the current directors and officers also included the Board Members appointed at meetings held legal by the court, and named each Board Member. As with the previous two enumerations, some evidence of record supports the trial court’s factual findings in this regard, and we find no error in its application of the law to the facts.

4. The Defendants argue that the trial court erred in finding that defendants Shanklin and Johnson breached their fiduciary duties to investigate allegations of monetary misuse and management regarding payments from SCLC funds to the Eutaw Prison Ministries. Based on the evidence in the record and cited by the trial court, it did not err in making this finding.

5. The Defendants assert that the trial court erred in finding that they breached their fiduciary duties by paying $12,240 from SCLC funds to the attorney who filed the 2009 lawsuit. As addressed earlier, the trial court did not err in finding that defendants Harris, Shanklin, and Johnson proceeded with the 2009 lawsuit without approval from the SCLC and thus breached their fiduciary duties to the corporation. It therefore follows that the court also did not err in granting the SCLC claim against Harris, Shanklin, and Johnson for $12,240.

6. After the main hearing ended, the Defendants moved the trial court to hold another hearing to consider “admissions of peijury,” submitting a memo from SCLC executive director Ron Woods stating that the staff “did everything within the court of law to support Rev. Tucker and all of the meetings/actions that were taken. In some cases violation of perjury may have taken place.” The Defendants also submitted a letter from the SCLC’s general counsel to Trammell and Gordon, written after the hearing, which stated that it “became painfully obvious [to general counsel] over this past year that certain persons seized this opportunity to hijack control of the organization.”

In denying the motion seeking a hearing, the trial court held:
Pursuant to OCGA § 16-10-70, perjury is a crime. The Court finds it inappropriate to initiate an investigation into whether or not perjury was committed in a civil hearing. Furthermore, the Court is not convinced by the arguments of, or by the exhibits submitted by Defendants that the Court was mistaken in the weight it gave to the evidence it found to be credible in making its ultimate decision.

The Defendants argue that the trial court erred as a matter of law in “refusing to consider [their] evidence of perjury” or “inquire into” the matter. Regardless of whether the trial court correctly found it “inappropriate to initiate an investigation into whether or not perjury was committed in a civil hearing,” it is clear that the trial court considered Woods’ memo and the general counsel letter submitted by the Defendants, as shown by the court’s ruling quoted above. Further, we have reviewed those documents, and they provide no evidence of perjury. Rather, they are simply hearsay speculations containing no specifics about which witnesses might have committed perjury or what testimony might have been perjured.

Finally,
to set aside a judgment obtained as a result of corrupt and wilful perjury, it must be shown that the persons charged with such perjury have been convicted thereof. OCGA § 17-1-4; Arnold v. State, 163 Ga. App. 10, 12 (1) (293 SE2d 501) (1982); Marshall v. Russell, 222 Ga. 490, 494 (2) (150 SE2d 667) (1966). There being no allegation of indictment and conviction of any of appellees who were witnesses in the libel and slander case and who allegedly testified falsely, the trial court did not err in dismissing appellant’s claim seeking to set aside the judgment against him. Id.; see generally OCGA §§ 9-11-12 (b) (6), 12 (c) and 56 (c); Wallis v. Clerk, Sup. Court, 166 Ga. App. 775, 776 (305 SE2d 639) (1983).

Sun v. Bush, 179 Ga. App. 140, 141-142 (3) (345 SE2d 873) (1986). While the appellants contend that Sun is inapplicable because it involved setting aside a judgment and they raised the perjury issue before the trial court entered judgment, the appellants presented no evidence that perjury occurred, only someone’s speculation in a hearsay memo that some unspecified perjury might have occurred. This is not sufficient evidence to require the trial court to hold a factfinding hearing to uncover possible perjury.

Accordingly, we find no merit in this enumeration.

7. The Defendants assert that the trial court erred in “refusing to consider” their motion to disqualify the SCLC’s attorney based on a nonwaivable conflict of interest.

Under Rule 1.7 (a) of the Code of Professional Conduct of the State Bar of Georgia, a lawyer shall not without consent represent a client if there is a significant risk that her duties to another client will materially and adversely affect her representation of the client. Under Rule 1.7 (c) (2), the client cannot waive the conflict if the lawyer is representing the opposing party in the same or substantially related proceedings. The Defendants argue on appeal that the SCLC’s attorney had a conflict because he had previously represented Board Member Martin Luther King III and former President-Elect Bernice King in a separate matter, but never disclosed this prior representation to his clients even though Bernice King’s proposed contract regarding the SCLC presidency “was soon to come before the Board.” The appellants also argue that even if the attorney had disclosed the prior representation to the SCLC, the conflict was nonwaivable.

“[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution.” Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981). In addition to the client’s right to counsel, there are practical reasons to approach with caution a motion to disqualify, which if granted will “inevitably delay[ ] the proceedings and work[ ] a unique hardship on the client,” who will lose time, money, and his previous counsel’s knowledge of the situation if forced to obtain new counsel. Lewis v. State, 312 Ga. App. 275, 282 (1) (718 SE2d 112) (2011). Additionally, “courts must cast a skeptical eye toward motions to disqualify counsel of choice because parties often move for disqualification of opposing counsel for tactical reasons.” (Citation and punctuation omitted.) Id.

In this case, the appellants sought a ruling on their motion to disqualify the appellees’ attorney at the start of the hearing on the petition for an injunction and declaratory judgment. While they assert on appeal that the trial court erred in “refusing to consider” their motion, this assertion is simply inaccurate. Instead, the trial court stated that it would hear the evidence with regards to the disqualification motion at the end of the hearing. The appellants sought to make a proffer of the testimony of the Kings, another witness, and a law professor, and the trial court noted that they had made a proffer via the professor’s affidavit, and that it “ha[d] no problem letting you make whatever record you need to make” after hearing evidence on the main issues. The court further noted that if it disqualified the appellees’ attorney first, it would not be able to hear and rule on the petition for a declaratory judgment and injunction. The result would be continued “chaos,” because no one would be in charge and the banks would continue refusing to release the SCLC’s money to pay its employees and “keep the lights on.” The court wanted to consider the issue after hearing the evidence in the main claim seeking an injunction, noting that if it determined that the appellees were not the legitimate directors of the SCLC, then their counsel did not represent the SCLC and the conflict issue would be easy to resolve.

In the last two days of the hearing, the trial court asked the appellants repeatedly if they had any additional witnesses or evidence to present, and the answer repeatedly was no. The appellants closed without calling the previous clients of the SCLC’s attorney or anyone else as witnesses regarding their motion to disqualify the attorney and without making a proffer of their testimony.

A party moving to disqualify counsel for an opposing party bears the burden of “showing that the matters embraced within the pending suit are substantially related to the matters or the cause of action involved in the previous representation.” Cardinal Robotics v. Moody, 287 Ga. 18, 21 (694 SE2d 346) (2010). The appellants made no such showing here, but simply asserted that the appellees’ attorney had previously represented the Kings in matters unrelated to the SCLC, that Bernice King’s contract as President would soon come before the Board, and that therefore the attorney had an “unwaiveable” conflict of interest. The appellants made no showing that the interests of the SCLC and the Kings were directly adverse or otherwise sufficiently conflicting to “materially and adversely affect the representation of” the SCLC and warrant the attorney’s disqualification, Rule 1.7 (a), and their counsel’s conclusory statements are entitled to no weight. Carragher v. Harman, 220 Ga. App. 690, 692 (1) (469 SE2d 443) (1996).

While the appellants asserted after the hearing in an amended motion to disqualify that a memo from the SCLC Chair of the Board to the Board of Directors “vividly illustrated the reality of a conflict of interest in [appellees’ counsel’s] representation of the SCLC and the Board of Directors,” the evidence presented with the motion was hearsay. Even if it were not hearsay, the memo criticizing then-President-Elect King’s upcoming prayer vigil on behalf of the SCLC does not even arguably establish that the SCLC and King were opposing parties.

Decided November 22, 2011

Reconsideration denied December 16, 2011

Thelma Wyatt Cummings Moore, M. Katherine Durant, for appellants.

Hasty Pope, Marion T. Pope, Jr., Charles A. Mathis, Jr., J. Christopher Simpson, Marian P. Johnson, for appellees.

The trial court held that the appellants did not meet their burden of “showing how the matters embraced by this case are substantially related to the matters involved in” previous litigation involving the Kings. After reviewing the testimony and other evidence, we find no error in the trial court’s denial of the Defendants’ motion to disqualify the SCLC’s attorney.

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs in judgment and in Divisions 1-6.

       Sylvia Tucker, Randall Gaines, and Bernard Lafayette.

       Curtis W Harris, Wilburt Shanklin, Randy Johnson, Raleigh Trammell, Spiver W. Gordon, and Markel Hutchins.

       While the Board Members elected Bernice King as president, King ultimately did not accept the position.