text:
    A11A0816.
    FARM CREDIT OF NORTHWEST FLORIDA, ACA v. EASOM PEANUT COMPANY et al.
    (718 SE2d 590)
   McFadden, Judge.

This dispute arises out of the bankruptcy of a peanut broker, Fidelity Foods. At issue are competing claims to proceeds from the sale of 2008 peanut crops. Easom Peanut Company, which warehoused and processed the peanuts, brought this action against multiple peanut growers and Farm Credit of Northwest Florida, ACA, which had loaned money to Fidelity, the now-bankrupt broker. The several parties raise a large number of issues in support of their claims that their interests in the proceeds are superior to the other parties’ interests. We conclude that Farm Credit has a perfected security interest in the proceeds and that the growers have an unperfected security interest in the proceeds. Easom has a bailee’s lien in the proceeds, and it may have an independent right to be paid. Whether a lack of good faith may alter the priorities of the parties’ interests in the proceeds is a fact question.

The trial court granted summary judgment to Easom, ruling it was entitled to the entire amount it sought. Subject to Easom’s claims, the court granted summary judgment to the growers. It denied Farm Credit’s motions for summary judgment. Farm Credit appeals, contending that its security interest in the peanuts was superior to the growers’; that the trial court lacked the authority to re-order the priority of the security interests; that it was entitled to summary judgment on the growers’ tort and breach of contract cross-claims; and that any lien Easom had over the peanut proceeds was inferior.

We find that Farm Credit had a security interest in the peanuts. In so finding, we hold, as to what appears to be an issue of first impression in Georgia, that the term “possession” as used in § 9-110 of the UCC includes constructive possession. But we find that whether Farm Credit’s security interest is superior to the growers’ and Easom’s interests depends on an issue that the factfinder must resolve: whether Farm Credit acted in bad faith. We therefore reverse the grant of summary judgment to the growers on these issues but affirm the denial of summary judgment to Farm Credit. We affirm the trial court’s denial of Farm Credit’s motion for summary judgment on the growers’ conversion claims because whether Farm Credit had the right to exercise dominion over the peanuts depends on the priority of the parties’ interests, which, in turn, depends on a resolution of the factual issue of bad faith. We reverse the trial court’s denial of Farm Credit’s motion for summary judgment on the growers’ claims for punitive damages because, as a federal instrumentality, Farm Credit is immune from punitive damages awards. We affirm the trial court’s denial of Farm Credit’s motion for summary judgment on the growers’ claims for indemnity and contribution because whether Farm Credit and the growers are joint obligors is not clear at this point. We affirm the trial court’s denial of Farm Credit’s motion for summary judgment on the growers’ claims of fraud and misrepresentation, because whether Farm Credit misrepresented Fidelity’s financial condition to the growers, thereby fraudulently inducing them to sell their peanuts to Fidelity, is a question for the factfinder. We reverse the trial court’s denial of Farm Credit’s motion for summary judgment on J. E. Golden Farms, Inc.’s breach of contract and promissory estoppel claims because enforcement of these claims is barred by the statute of frauds. We find that although Easom has a bailee’s lien in the peanut proceeds, whether the lien has priority depends on whether the parties’ priorities should be re-ordered because of bad faith, and thus reverse the trial court to the extent that it held otherwise. Finally, we find that the trial court erred in calculating the amount to which Easom may be entitled under a theory of quantum meruit; we reverse and remand on this issue so that the amount to which Easom is entitled under the doctrine of quantum meruit, if any, can be determined.

A trial court properly grants a motion for summary judgment when there is no genuine issue of material fact and the movant demonstrates entitlement to judgment as a matter of law. We review, de novo, a grant of summary judgment, viewing the evidence, and all reasonable conclusions and inferences drawn therefrom, in a light most favorable to the nonmovant.

(Punctuation omitted.) Bank of Dawson v. Worth Gin Co., 295 Ga. App. 256 (671 SE2d 279) (2008).

1. Fidelity Foods is a peanut broker, now in bankruptcy. In January 2008, Farm Credit, a cooperative bank, extended a $5 million line of credit to Fidelity to fund its operations. In exchange, Fidelity granted Farm Credit a security interest in its inventory, accounts, and other assets, including collateral, defined as “[a]ll peanuts of every kind and description shelled and unshelled, and wherever located and including but not limited to all peanuts owned by Debtor and stored at and/or processed by companies listed on ‘Exhibit A.’ ” Listed on Exhibit A were six companies, including Easom. On January 10, 2008, Farm Credit filed UCC financing statements in the applicable jurisdictions. The financing statements described the property in which Farm Credit had a security interest in the same words as those used in the security agreement. In March 2008, Fidelity entered agreements with Easom for the shelling and storage of peanuts.

Later in 2008, Fidelity entered contracts with the growers for the purchase of their 2008 peanut stock. Most of the contracts provided that

the Seller retains all beneficial interest thus having control and title in the Peanuts until such time as title to said Peanuts is transferred to [Fidelity] and the warehouse receipt(s) relating to such Peanuts are delivered to [Fidelity]. Until such time, any damage to the Peanuts remains the responsibility of the Seller.

The contracts did not specify how title would transfer, nor how or where the peanuts would be delivered. No warehouse receipts were ever delivered.

Before entering the contracts, some of the growers spoke with Rick Bitner, Farm Credit’s East Region Lending Manager, about Fidelity’s financial stability and ability to pay for the peanuts.

Fidelity directed that the peanuts be delivered to Easom and sent trucks to the farms for that purpose. Some of the growers were only partially paid and others were never paid at all. Fidelity paid Easom $547,134.87 of the $1,109,802.09 invoiced for its services in processing and storing the peanuts. Fidelity filed for bankruptcy protection on April 14, 2009. The bankruptcy court allowed Easom to sell the peanuts, and the proceeds were put in escrow pending the resolution of this lawsuit. The parties have agreed that any rights they may have had in the peanuts have become equivalent rights in the proceeds.

Easom filed this lawsuit against Fidelity, Farm Credit, and 17 growers, seeking to recover the reasonable value of its services. The growers answered and filed cross-claims against Farm Credit. Farm Credit answered and filed motions for summary judgment against four growers. The growers moved for partial summary judgment against Farm Credit, and Easom moved for summary judgment. The trial court granted summary judgment to Easom for the full value of its claim and to the growers, awarding them their proportionate shares in the proceeds remaining after Easom is paid. It denied Farm Credit’s summary judgment motion on the growers’ cross-claims. Farm Credit filed this appeal.

2. The Priorities of Farm Credit’s and the Growers’ Security Interests

Farm Credit argues that its perfected security interest in the peanuts was superior to the growers’ unperfected security interests. The trial court found that Farm Credit did not have a valid security interest.

(a) Choice of Law

Both the security agreement between Fidelity and Farm Credit and the contracts between Fidelity and most growers provide that Florida law controls. It is unnecessary to decide whether the Florida or the Georgia version of the Uniform Commercial Code governs the priorities of the growers’ and Farm Credit’s interests, however, because both Georgia and Florida have adopted the uniform versions of the provisions of the Uniform Commercial Code that are at issue. Compare Mull Drilling Co. v. SemCrude, L.P., 407 BR 82 (Bankr. D. Del. 2009) (engaging in choice of law analysis when Kansas, one of the three jurisdictions at issue, had enacted a nonuniform amendment to its version of the Uniform Commercial Code).

(b) Priorities

Georgia and Florida law both require that the “debtor [have] rights in the collateral or the power to transfer rights in the collateral to a secured party” before a security interest will attach to the collateral. OCGA § 11-9-203 (b) (2); Fla. Stat. § 679.2031 (2) (b). “[I]t is self-evident that in the absence of special circumstances a security interest can attach only to the extent of the interest of the debtor. . . . One cannot encumber another man’s property in the absence of consent, estoppel, or some other special rule.” First Nat. Bank & Trust Co. v. Smithloff, 119 Ga. App. 284, 290 (5) (167 SE2d 190) (1969). Contrary to Farm Credit’s argument, Fidelity had to have rights in the peanuts for Farm Credit’s security interest to attach, notwithstanding the broad language in the security agreement and UCC financing statement purporting to grant Farm Credit a security interest in “[a]ll peanuts of every kind and description shelled and unshelled, and wherever located and including but not limited to all peanuts owned by Debtor. ...”

However, we agree with Farm Credit that, in fact, the growers transferred title to the peanuts to Fidelity — and Farm Credit’s security interest thus attached — when the growers delivered the peanuts to Easom. The trial court held that the growers did not transfer title to the peanuts to Fidelity because Fidelity never paid for or possessed the peanuts and because the contracts between Fidelity and most of the growers expressly reserved to the growers all “beneficial interest” until title was transferred to Fidelity and warehouse receipts were delivered to Fidelity, events which, the trial court found, did not happen.

Under Georgia’s enactment of the Uniform Commercial Code, Fidelity took title to the peanuts upon the growers’ tender. Diamond Crystal Brands v. Food Movers Intl., 593 F3d 1249, 1266 (11th Cir. 2010). OCGA § 11-2-401 (2) provides that “[ujnless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods. ...” Florida law is the same. Fla. Stat. § 672.401 (2). The agreements between the growers and Fidelity do not define how title passes. Therefore, when the growers completed their performance under the contracts with Fidelity by delivering the peanuts to Easom, title passed to Fidelity.

And under OCGA § 11-2-401 (1), which mirrors Fla. Stat. § 672.401 (1), the growers’ attempted reservation of title amounted to a security interest. That statute provides in part, “[a]ny retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest.”

The fact that the seller retains title to the collateral that has been sold to the debtor does not give the seller any right beyond an unperfected security interest in the goods, with the result that if there is no perfecting of the seller’s interest in a manner specified by the Uniform Commercial Code, the interest of the seller is merely an unperfected security interest and therefore is subordinate to any perfected interest.

68A AmJur2d Secured Transactions § 814.

It is uncontested that the growers never perfected their security interests. And Farm Credit’s security interest was perfected, as it had filed financing statements and the security interest had attached. OCGA §§ 11-9-308 (a); 11-9-310 (a); Fla. Stat. §§ 679.3081 (1); 679.3101 (1). Therefore, Farm Credit’s perfected security interest had priority over the growers’ unperfected security interests, absent some exception. OCGA § 11-9-322 (a) (2); Fla. Stat. § 679.322 (1) (b); Dixie Bonded Warehouse & Grain Co. v. Allstate Financial Corp., 693 FSupp. 1162, 1164 (M.D. Ga. 1988).

The trial court found applicable the exception based on the debtor’s lack of possession. Farm Credit challenges that finding. We agree with Farm Credit.

Under OCGA § 11-9-110 and Fla. Stat. § 679.1101, the growers, as sellers, retained a reservation of a security interest in the peanuts. Further, “until the debtor obtain[ed] possession of the goods . . . [t]he security interest ha[d] priority over a conflicting security interest created by the debtor.” OCGA § 11-9-110 (4); Fla. Stat. § 679.1101 (4). In other words, the trial court found that until Fidelity obtained possession of the peanuts, the growers’ reserved security interest in the peanuts had priority over Farm Credit’s security interest, which had been created by debtor Fidelity.

The trial court’s reasoning depends upon the assumption that possession means “actual possession.” We conclude that it does not. The code provision at issue does not define possession at all, much less as limited to actual possession. No Georgia case defines possession in the context of § 9-110 of the Uniform Commercial Code. In another context — involving the preservation of creditors’ rights — Georgia courts have concluded that constructive possession is sufficient to allow a lien to attach. See Hardeman & Sparks v. De Vaughn, 49 Ga. 596, 599 (1873); Kollock v. Jackson, 5 Ga. 153, 154-156 (1848). We therefore construe the term “possession” in Uniform Commercial Code § 9-110 to include constructive possession. See United Bank of Iowa v. Independent Inputs, 538 F3d 858, 863-865 (8th Cir. 2008) (construing “possession” in another provision of Iowa’s version of the Uniform Commercial Code, § 9-109, to include not only physical possession but also constructive possession). See also Hong Kong & Shanghai Banking Corp. v. HFH USA Corp., 805 FSupp. 133 (W.D. N.Y. 1992) (holding delivery to warehouse amounted to possession); O’Brien v. Chandler, 765 P2d 1165, 1169 (N.M. 1988) (holding that debtor had possession of cattle when unpaid seller, who had not perfected any security interest in cattle, delivered cattle to feedlot pursuant to parties’ agreement, and therefore bank’s perfected security interest in cattle had priority).

Because the peanuts were delivered to Easom at Fidelity’s direction where Fidelity had the right to control them, Fidelity exercised constructive possession. “[B]oth the power and the intention at a given time to exercise dominion or control over a thing” amounts to constructive possession. (Punctuation omitted.) Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). Accordingly, the growers’ unperfected security interests did not have priority under OCGA § 11-9-110 (4) or Fla. Stat. § 679.1101 (4).

The trial court further found that, even if the growers’ security interests did not have priority, the court could reorder the priority of the security interests, given Farm Credit’s bad faith. We agree with the trial court that “a lack of good faith on the part of a secured creditor may alter the priorities which would otherwise be determined by Article 9 provisions.” Central Soya Co. v. Bundrick, 137 Ga. App. 63, 66 (1) (222 SE2d 852) (1975). See also Central Bank of Alabama v. American Charms, 149 Ga. App. 218 (253 SE2d 857) (1979) (affirming denial of secured party’s motion for summary judgment since a material issue of fact existed as to whether it acted in good faith); Graniteville Co. v. Bleckley Lumber Co., 687 FSupp. 589, 592 (M.D. Ga. 1988) (“[T]he absence of good faith in the conduct of a secured party is a consideration which, if sufficiently established by the evidence, may result in a reordering of the priorities among creditors.”).

However, the trial court erred in granting summary judgment based on its finding of sufficient evidence that Farm Credit did not act in good faith, thereby permitting such reordering. The evidence as to that finding is disputed. “A trial court properly grants a motion for summary judgment when there is no genuine issue of material fact.” Bank of Dawson, supra.

Under the Uniform Commercial Code, “ ‘good faith’ means honesty in fact and the observance of reasonable commercial standards of fair dealing.” OCGA § 11-9-102 (a) (44); Fla. Stat. § 679.1021 (1) (qq). The growers presented at least some evidence that, in spite of Farm Credit’s concerns, Rick Bitner, Farm Credit’s East Region Lending Manager, assured the growers of Fidelity’s financial stability and assured them that they would be paid. Farm Credit, on the other hand, presented evidence that nothing Bitner said to the farmers was untrue. Given the disputed evidence and the growers’ failure to demonstrate that they were entitled to judgment as a matter of law, the trial court erred by granting summary judgment to the growers on the issue of Farm Credit’s lack of good faith, and we reverse the trial court’s ruling reordering the priorities of the security interests on this basis. We agree with the trial court that Farm Credit is not entitled to summary judgment on this issue because disputed questions of fact remain, and Farm Credit has not demonstrated that it is entitled to judgment as a matter of law. We thus affirm the trial court’s denial of Farm Credit’s motion for summary judgment. See Central Soya, supra at 66-67 (“The good faith of a transaction is peculiarly a question for the trier of fact.”).

3. The Growers’ Contract and Tort Claims

Farm Credit contends that it was entitled to summary judgment on some of the growers’ contract and tort claims. Again, we must determine which law controls. Georgia courts apply the lex loci delicti rule, which provides that “a tort action is governed by the substantive law of the state where the tort was committed.” Dowis v. Mud Slingers, 279 Ga. 808, 809 (621 SE2d 413) (2005). As for contract actions, we apply the lex loci contractus rule, which provides that when a contract is made and to be performed in one state, its validity, nature, construction, and interpretation are governed by the substantive law of that state. Godinger Silver Art Co. v. Olde Atlanta Mktg., 269 Ga. App. 386, 389 (2) (604 SE2d 212) (2004). When a contract is made in one state and is to be performed in another state, the substantive law of the state where the contract is to be performed applies. Id.

(a) Farm Credit argues that the trial court erred in denying its summary judgment motion on the growers’ conversion claims. It moved for summary judgment on this issue against J. E. Golden Farms, Inc., a Florida resident, and Jay Ag Air, Inc., a Florida resident. These growers alleged that Farm Credit wrongfully exercised dominion and control over the peanuts, which were located in Georgia. Therefore, if a conversion was committed, it was committed in Georgia. Since Georgia follows the lex loci delicti rule, Dowis, supra, Georgia law governs these claims. See also Charash v. Oberlin College, 14 F3d 291, 296 (6th Cir. 1994) (holding that a conversion takes place where the converter handled the property and under lex loci delecti, that place’s law controls).

The trial court ruled that Farm Credit was not entitled to summary judgment on the conversion claims because whether Farm Credit wrongfully asserted dominion over the growers’ property was a question of fact. Farm Credit contends that its assertion of dominion over the peanuts was not wrongful since it had a perfected security interest in the peanuts, superior to any interest the growers may have had.

Under Georgia law, “[conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” (Punctuation omitted.) Trey Inman & Assocs. v. Bank of America, 306 Ga. App. 451, 457 (4) (702 SE2d 711) (2010). “Any distinct act of dominion wrongfully asserted over another’s property in denial of his right or inconsistent with it is a conversion.” Bromley v. Bromley, 106 Ga. App. 606, 610 (1) (127 SE2d 836) (1962). Whether Farm Credit had the authority to exercise the right of ownership over the peanuts depends on the issue of the priorities of the parties’ interests. And, as we held in Division 2 (b), the issue of the priorities of the parties’ interests depends on a resolution of the factual issue of bad faith. Therefore, the trial court did not err in denying Farm Credit summary judgment on the conversion claims.

(b) Farm Credit contends that the trial court erred in denying its motion for summary judgment on the growers’ claim for indemnity and contribution because contribution comes into play only when entities are jointly liable in tort, which the growers do not allege, and there is no legal relationship between Farm Credit and the growers that would require Farm Credit to pay.

The growers counter that they can assert this claim because Easom alleges that the growers and Farm Credit are joint obligors for costs related to processing and storing the peanuts. OCGA § 23-2-71 provides:

In cases of joint, joint and several, or several liabilities of two or more persons, where all are equally bound to bear the common burden and one has paid more than his share, he shall be entitled to contribution from the others. . . .

The right of contribution is not limited to tort liability. See Goldhill v. Kramer, 122 Ga. App. 39, 40 (3) (176 SE2d 232) (1970). As discussed in Division 4 below, the basis of Easom’s right to payment is not clear. Consequently, it cannot be determined whether Farm Credit and the growers are joint obligors. See Klausman v. Klaus-man, 186 Ga. App. 669, 670 (368 SE2d 185) (1988) (holding contribution is appropriate when parties are jointly liable); Helmet House Corp. v. Stoddard, 861 S2d 1178, 1180 (Fla. App. 2003) (holding contribution is appropriate when the parties have a common obligation). Therefore, we affirm the trial court’s denial of summary judgment to Farm Credit on the growers’ claim for contribution.

(c) Farm Credit argues that the trial court erred in denying its motion for summary judgment on the fraud and negligent misrepresentation claims asserted by J. E. Golden Farms, Inc. and Jay Ag Air, Inc., both Florida residents, and the negligent misrepresentation claim asserted by Todd Wiggins, an Alabama resident.

J. E. Golden Farms alleged that Fidelity told it that as soon as its peanuts were delivered, Farm Credit would issue a check for payment. J. E. Golden Farms contacted Rick Bitner of Farm Credit in Tallahassee to verify Fidelity’s statement. Bitner allegedly confirmed that Fidelity had a line of credit, that Fidelity’s account was in good standing, and that upon receipt of the paperwork for the peanuts, Farm Credit would issue payment directly to J. E. Golden Farms. J. E. Golden Farms thus entered the contract to sell its peanuts to Fidelity. J. E. Golden Farms contends that Bitner made the statements, knowing that payment would not be made, to induce it to deliver the peanuts, which improved Farm Credit’s position as a secured creditor.

Because J. E. Golden Farms is a Florida resident that sustained injury in Florida, if anywhere, Florida law controls. Intl. Business Machines Corp. v. Kemp, 244 Ga. App. 638, 640-641 (1) (a) (536 SE2d 303) (2000). Farm Credit asserts that under Florida’s economic loss rule, J. E. Golden Farms cannot pursue a negligent misrepresentation claim because it is also pursuing a breach of contract claim for the same conduct — Farm Credit’s promise to pay for the peanuts. Under Florida law, “a fraud in the inducement claim is not barred by the economic loss rule so long as the claim is based on conduct that is separate and distinct from the conduct constituting the breach of contract.” Taylor v. Maness, 941 S2d 559, 564 (Fla. App. 2006). J. E. Golden Farms asserts both that Farm Credit knowingly misrepresented Fidelity’s financial condition to induce it to sell its peanuts to Fidelity and also, separately, that Farm Credit agreed to pay for the peanuts itself. Given these allegations of separate conduct, Farm Credit is not entitled to summary judgment on J. E. Golden Farms’ fraud and misrepresentation claim, and we affirm the trial court in this regard.

Farm Credit asserts that it is undisputed that Farm Credit’s agent never spoke to Wiggins or Jay Ag, and thus no misrepresentation was made to those growers. Jay Ag counters that Bitner spoke with grower D. Marcus Golden, who relayed the conversation to his son, Daniel Golden of Jay Ag. Todd Wiggins asserts that Bitner made the statements to his brother, grower Glen Wiggins, who relayed them to him. He adds that since he was in the class of persons whom Farm Credit should have expected to rely on the statements, that he can pursue his claim.

Because Jay Ag is located in Florida, it suffered loss, if any, in Florida, and Florida law controls its claims. Intl. Business Machines, supra. Because Todd Wiggins is a resident of Alabama, he suffered loss, if any, in Alabama, and Alabama law controls his claim. Id.

Under Florida law, “recovery may be had for misrepresentation as to a third party’s financial condition where a person . . . induc[es] another to lend money or sell goods or other chattels on credit to said third person ... by misrepresenting the solvency or financial responsibility of such third person.” Forbes v. Auerbach, 56 S2d 895, 900 (Fla. 1952). The same is true under Alabama law. Ringer v. First Nat. Bank, 281 S2d 261 (Ala. 1973). And a person may be entitled to rely on a statement, even if it is not made directly to him. Henson v. Celtic Life Ins. Co., 621 S2d 1268 (Ala. 1993); Harrell v. Branson, 344 S2d 604 (Fla. App. 1977). The trial court did not err in denying Farm Credit’s motion for summary judgment on Jay Ag’s and Todd Wiggins’s claims for fraud and misrepresentation on the ground that it made no statements to them.

(d) Farm Credit argues that it is entitled to summary judgment on J. E. Golden Farms’ promissory estoppel and breach of contract claims because they are barred by the statute of frauds. The claims were based on Bitner’s alleged representation that Farm Credit would pay for the peanuts, independent of the status of Fidelity’s line of credit. The alleged conversation occurred when grower D. Marcus Golden called Bitner at his Florida office.

Because the alleged agreement was made in Florida, when Golden called Bitner, the law of Florida governs. See Godinger, supra. J. E. Golden Farms alleged, not that Farm Credit promised to pay if Fidelity failed to pay, but that it directly, unconditionally promised to pay for the peanuts.

Florida’s statute of frauds provides in part:

[A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought. . . .

Fla. Stat. § 672.201 (1). J. E. Golden Farms does not dispute that the price for its peanuts exceeded $500. Therefore, to be enforceable, the contract had to be in writing. Conner, I, Inc. v. Walt Disney Co., 827 S2d 318, 319 (Fla. App. 2002). And a party may not circumvent the requirements of the statute of frauds by alleging promissory estop-pel. See Shore Holdings v. Seagate Beach Quarters, 842 S2d 1010, 1012-1013 (Fla. App. 2003). The trial court thus erred in denying Farm Credit’s motion for summary judgment on J. E. Golden Farms’ breach of contract and promissory estoppel claims.

(e) Farm Credit argues that because it is entitled to summary judgment on all of the growers’ tort claims, it is entitled to summary judgment on the growers’ punitive damages claims. Alternatively, it argues that lending institutions of the Farm Credit System such as itself are immune from punitive damages. We agree that, irrespective of the viability of the growers’ tort claims, Farm Credit, as a federal instrumentality, is immune to a punitive damages award. See Smith v. Russellville Production Credit Assn., 777 F2d 1544, 1549-1550 (11th Cir. 1985). The trial court found that because Farm Credit is a production credit association that has been granted the right to “sue and be sued” under 12 USC § 2093 (4), it is not immune to punitive damages. But in Smith, supra, the Eleventh Circuit expressly rejected this argument.

The growers contend that under various United States Supreme Court precedents more recent than Smith, the sue-and-be-sued waiver must be given expansive construction. See, e.g., United States Postal Svc. v. Flamingo Indus. (USA), 540 U. S. 736, 741 (124 SC 1321, 158 LE2d 19) (2004). They cite a California state court decision, McGee v. Tucoemas Fed. Credit Union, 63 Cal. Rptr. 3d 808 (Cal. App. 2007), supporting their contention that the sue-and-be-sued waiver includes a waiver of immunity from punitive damages. But other courts have expressly rejected their argument in decisions more recent than Smith. See, e.g., Mays v. Tennessee Valley Auth., 699 FSupp.2d 991, 1029-1031 (E.D. Tenn. 2010). We find the Eleventh Circuit’s analysis persuasive and follow it in holding that Farm Credit, as a federal instrumentality, is immune to a punitive damages award. Farm Credit thus is entitled to summary judgment on the punitive damages claims.

4. Easom’s Claims

The trial court granted summary judgment to Easom, which warehoused and processed the peanuts, and directed the custodian of the peanut proceeds to pay Easom the entire amount it sought. The court did not specify the basis for its award, whether Easom had a bailee’s lien, a warehouse lien, or was entitled to payment under a theory of quantum meruit.

A bailment is “a delivery of goods or property upon a contract, express or implied, to carry out the execution of a special object beneficial either to the bailor or bailee or both and to dispose of the property in conformity with the purpose of the trust.” OCGA § 44-12-40. The delivery of peanuts to Easom created a bailment.

OCGA § 44-14-320 (a) (11) establishes a lien in a bailee, such as Easom. Similarly, OCGA § 44-14-409 provides that, “[t]he bailee for hire of labor and service shall have a special lien for his labor and services upon the thing bailed until he parts with possession. ...” Under these statutes, to the extent the trial court ruled that Easom had a bailee’s lien, it did not err. See also Cowart & Dancer v. Bush, 37 Ga. App. 278 (a) (139 SE 920) (1927) (“a bailee for hire . . . has a lien for his charges on the thing deposited”).

OCGA § 44-14-400 provides that bailee’s liens “shall be inferior to liens for taxes, liens of which such persons had actual notice before becoming creditors, special liens for rent, liens of laborers, liens or mortgages duly recorded, judgment liens, and other general liens reduced to execution and levied on.” Farm Credit argues that under this statute, Easom’s bailee’s lien did not have priority, and the trial court erred to the extent it held otherwise. As Farm Credit argues, OCGA § 44-14-400 expressly provides that a bailee’s lien is inferior to a duly recorded lien, and Farm Credit’s duly recorded security interest is such a duly recorded lien. See Nationsbank of Tennessee v. Hardwick Carpets Intl., 233 Ga. App. 894, 896 (506 SE2d 174) (1998) (holding that perfected security interest is a lien for purposes of mechanic’s lien statute). More to the point, OCGA § 11-9-333 (a) provides that, with exceptions not applicable here, a perfected security interest in collateral takes priority over the liens described in Title 44. Similarly, Fla. Stat. § 679.333 (2) provides that a possessory lien on goods has priority over a security interest unless the lien is created by a statute — such as OCGA § 44-14-400 — that expressly provides otherwise. Consequently, under these provisions, any lien rights Easom had under Title 44 are inferior to Farm Credit’s rights, unless the priorities are re-ordered should the factfinder determine that Farm Credit acted in bad faith. See Division 2 (b), supra.

Easom asserts alternatively that it had a priority lien under the warehouse lien statute, OCGA § 11-7-209 (1). Farm Credit counters that Easom has no warehouse lien because it presented no evidence of warehouse receipts. The trial court adopted Easom’s position that under the statute, even absent a warehouse receipt, it could claim a warehouse lien on the proceeds from the peanuts. But a plain reading of the 2008 version of the statute supports Farm Credit’s position, not Easom’s.

That version of the statute, OCGA § 11-7-209 (1) (2008), which was subsequently amended effective May 27, 2010, provided in part:

A warehouseman has a lien against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in his possession for charges for storage or transportation (including demurrage and terminal charges), insurance, labor, or charges present or future in relation to the goods, and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law.

The Florida statute, Fla. Stat. § 677.209 (1) (2008), was virtually the same:

A warehouseman has a lien against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in his or her possession for charges for storage or transportation (including demurrage and terminal charges), insurance, labor, or charges present or future in relation to the goods, and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law.

These statutes provide that the warehouse has a lien “on the goods covered by a warehouse receipt or on the proceeds thereof,” meaning on the proceeds of “the goods covered by a warehouse receipt.” “The issuance of a warehouse receipt by a warehouseman to the storer of the goods is a condition to the existence of a warehouseman’s lien under OCGA § 11-7-209.” In re Charter Co., 56 BR 91, 95 (Bankr. M.D. Fla. 1985). To the extent the trial court ruled that Easom had a warehouse lien, it erred.

As another alternate ground, the trial court ruled that Easom was entitled to be paid from the proceeds based on a quantum meruit theory. Farm Credit contends that Easom does not have lien rights in the proceeds under quantum meruit because no evidence shows that any defendant prevented Easom from perfecting its lien. We agree.

It is true that when a party entitled to a statutory lien has been prevented from perfecting such lien by the acts of the adverse party, such party is entitled to an equitable lien for the improvements made on a quantum meruit theory. The equitable lien is in place of the statutory one to which the petitioner would have been entitled if the adverse party had not prevented perfection of the lien.

(Citations and punctuation omitted.) Lane Supply v. W. H. Ferguson & Sons, 286 Ga. App. 512, 515 (649 SE2d 614) (2007). Easom does not allege that any party prevented it from perfecting its lien. Consequently, it does not have a lien in the peanut proceeds under a theory of quantum meruit.

But this does not negate the fact that Easom may be entitled to payment from Farm Credit under a quantum meruit theory. Under OCGA § 9-2-7, “when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” Farm Credit does not dispute the trial court’s findings that it directed Easom to receive, process and shell the peanuts, or that Easom’s efforts were valuable to it. Therefore, we affirm the trial court’s judgment to the extent that it found that Easom may have a claim for payment by Farm Credit under a quantum meruit theory. We observe that Easom is barred from a double recovery. Lee v. Shim, 310 Ga. App. 725, 733 (3) (b) (713 SE2d 906) (2011). It therefore cannot recover for its charges under both a bailee’s lien and a theory of quantum meruit.

Easom does not allege any facts tending to show that the growers impliedly promised to pay for peanut processing. Therefore, we reverse the trial court’s judgment to the extent it ruled that Easom could collect from the growers under a quantum meruit theory. And its entitlement to payment under a theory of quantum meruit is not tied to the peanut proceeds. Rather, Easom must be paid under such a theory by Farm Credit, which benefitted from Easom’s efforts and impliedly promised to pay by directing Easom to process the peanuts. Consequently, we affirm the trial court’s ruling that Easom may be entitled to be paid by Farm Credit under a quantum meruit theory, but reverse to the extent the trial court ruled that Easom is entitled to be paid under a theory of quantum meruit from the peanut proceeds.

Decided November 3, 2011

Alston & Bird, Nowell D. Berreth, Lisa R. Bugni, Todd R. David, for appellant.

Langdale & Vallotton, William R Langdale, Jr., Christina L. Folsom, Floyd & Kendrick, David A. Kendrick, Flynn & Peeler, Patrick S. Flynn, Ernest A. Sellers, Jr., for appellees.

We agree with Farm Credit that should Easom ultimately be found to be entitled to payment under a theory of quantum meruit, then the trial court must reconsider the amount of any quantum meruit award. The trial court awarded Easom the full amount it sought, including $263,543.60 in commissions. However, “[t]he reasonable value which the provider is entitled to recover in quantum meruit is not the value of the labor but the value of the benefit resulting from such labor to the recipient.” Hollifield v. Monte Vista Biblical Gardens, 251 Ga. App. 124, 130 (2) (b) (553 SE2d 662) (2001). “Quantum meruit claims measure the value of services to the recipient, rather than the costs to the provider, and therefore [Easom’s] alleged lost profits and costs are not recoverable.” Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F3d 1274, 1282 (11th Cir. 2003). The trial court’s judgment must be reversed to the extent it awarded Easom, under a theory of quantum meruit, its costs and profits rather than the value of its services to Farm Credit. Id.; Hollifield, supra.

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

Andrews and Dillard, JJ., concur.

       The contracts between grower Kenneth Ford and Fidelity do not include this provision. But Ford alleged in his cross-claim that because of United States Department of Agriculture regulations, his relationship with Fidelity is governed by the same provisions as the provisions of the contracts signed by the other growers.

       The growers’ “request for permission to file supplemental brief’’ is granted. We have read and considered the supplemental brief.

       The contracts between Georgia resident Ford and Fidelity do not specify which law controls. But, as noted in footnote 1, Ford alleged in his cross-claim that because of United States Department of Agriculture regulations, his relationship with Fidelity is governed by the same provisions as the provisions of the contracts signed by the other growers.

       Although Ford’s contracts did not attempt to reserve “beneficial interest,” the trial court did not distinguish his contracts from its ruling. As noted above, Ford alleged in his cross-claim that because of Department of Agriculture regulations, the provisions of the contracts signed by the other growers governed his relationship with Fidelity.


source: Caselaw Access Project

author: Adams, Judge. Barnes, Presiding Judge,

license: Public Domain

text:
    A11A1196.
    NORTH FULTON REGIONAL HOSPITAL et al. v. PEARCE-WILLIAMS.
    (718 SE2d 583)
   Adams, Judge.

For a little over three years, North Fulton Regional Hospital (and its workers’ compensation insurer/servicing agent) paid an injured employee temporary partial disability (TPD) benefits when it should have paid temporary total disability (TTD) benefits, a higher amount. After being ordered to pay the TTD benefits retroactively, the employer/insurer made a lump sum payment of the difference between the two amounts, plus penalties and interest. The issue on appeal is whether the employer/insurer was procedurally barred from taking credit for the amount already paid. This Court granted discretionary review of a superior court’s order holding that it was barred.

The relevant facts show that Cathy Pearce-Williams sustained a compensable work injury on August 5, 1999. Prior to February 3, 2003, she received TTD benefits for the injury, apparently in the maximum allowed per week, i.e., $350. Then for the period running from February 3, 2003 to April 29, 2006 (roughly 169 weeks), apparently based on a reclassification by the employer/insurer, the employer/insurer suspended TTD benefits and paid Pearce-Williams TPD benefits in the lesser amount of $233.33 per week in accordance with OCGA § 34-9-104 (a) (2).

In approximately June 2008, Pearce-Williams requested a hearing, alleging her injury was catastrophic, and had been, and that she was thus entitled to the original, full amount of TTD benefits retroactive to February 3, 2003. On August 20, 2008, an administrative law judge agreed and found, among other things, that the injury was catastrophic as defined by OCGA § 34-9-200.1 (g) (6) (1999). The judge ordered the following result:

The employer/insurer are hereby directed to recommence temporary total disability benefits effective the date of suspension, 02/03/2003. Benefits are payable on a continuing basis until otherwise terminated by law.

The order is otherwise silent on the remedy, and it does not state the amount that should have been paid in response to the reclassification of the injury. The award was adopted by the appellate division and affirmed by the superior court. In Case No. A09D0347, we denied the employer’s application for discretionary appeal on the catastrophic designation. After the award became final, the employer/insurer paid Pearce-Williams a lump sum amount intended to comply with the above order requiring it to pay TTD benefits from February 3, 2003 forward. To do so, it took credit for the TPD benefits that it had paid the claimant from February 2003 through April 2006.

In February 2010, the same ALJ conducted a hearing in response to Pearce-Williams’s claim that the employer/insurer was not permitted to take credit for prior TPD payments on the ground that it had not requested such a credit at the June 2008 hearing and no such credit was mentioned in the August 20, 2008 order. According to Pearce-Williams, the issue of any credit was thus res judicata and could not be re-litigated. The ALJ disagreed with Pearce-Williams, finding that “the Employee is seeking a windfall” and that the award designating her injury as catastrophic only found that she was entitled to income benefits in addition to the $233.33 per week she had already been receiving in TPD benefits; not that she was entitled to an additional $350 per week. Thus, the employer was not seeking a credit in the traditional sense but rather merely off-setting what had already been paid in the form of TPD benefits. The ruling was affirmed by the appellate division.

The Superior Court of Fulton County reversed, however, finding the employer/insurer’s claim of a credit to be barred by res judicata, and it remanded the case for “a hearing consistent with this opinion.” We granted the employer/insurer’s application for discretionary appeal.

The standard of review in the superior court and in this Court are the same:

In the absence of legal error, the factual findings of the [Board] must be affirmed by the superior court and by the Court of Appeals when supported by any evidence in the administrative record. However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review.

(Citations and footnotes omitted.) Trent Tube v. Hurston, 261 Ga. App. 525 (583 SE2d 198) (2003).

It is well settled that the doctrine of res judicata applies in the workers’ compensation context. See, e.g., Vought Aircraft Indus. v. Faulds, 281 Ga. App. 338 (636 SE2d 75) (2006); Webb v. City of Atlanta, 228 Ga. App. 278, 280 (1) (491 SE2d 492) (1997). Under this doctrine, a party is barred from re-litigating an issue that either was, or should have been, litigated in a prior proceeding. See Vought, 281 Ga. App. at 339; OCGA § 9-12-40. The crux of Pearce-Williams’s argument is that the employer/insurer should have raised the “credit” issue in the June 2008 hearing. The flaw in this argument is that the employer/insurer did not have to litigate the issue of the so-called credit during the June 2008 hearing.

According to the ALJ’s August 20, 2008 order, the claims presented at that hearing were Pearce-Williams’s “request for designation of her claim as catastrophic pursuant to OCGA § 34-9-200.1 (g) (6)” and her corresponding request for “temporary total disability benefits from 02/03/2003 and continuing.” The ALJ later defined the issue simply as “Whether the employee’s workers’ compensation injury is catastrophic pursuant to OCGA § 34-9-200.1 (g) (6).” And there is nothing in the 2008 ALJ order, or in the subsequent administrative appeals, to indicate that Pearce-Williams sought payment of TTD benefits in addition to TPD benefits as a consequence of the reclassification. In the 2010 order, the same ALJ found as a matter of fact that

there was no dispute that the Employee had received [TPD] benefits and she was not making a claim for [TTD] benefits in addition to the [TPD] benefits already received. The issue of entitlement to both types of benefits at the same time was not raised at the prior hearing.

Pearce-Williams does not dispute this point. Accordingly, the ALJ had a basis for finding as a matter of fact that Pearce-Williams was only seeking the difference between the amount already paid as TPD benefits and the amount due as TTD benefits for the relevant period of time. It logically follows that because Pearce-Williams did not seek a double recovery, the employer/insurer was under no obligation to seek a credit for the amount paid as TPD benefits.

Moreover, the employer/insurer was not required to anticipate that there was an issue regarding offsetting what had already been paid. Pearce-Williams admits in her appellate brief that it is contrary to the Workers’ Compensation Act for a claimant to receive both TTD and TPD benefits for the same period of time for the same injury. See generally Travelers’ Ins. Co. v. Hurt, 176 Ga. 153, 154 (167 SE 175) (1932) (the concepts of total and partial disability are antithetical). See also U. S. Steel Corp. v. McBrayer, 908 S2d 947, 951 (Ala. Civ. App. 2005) (reversing portion of decision that awarded both TTD and TPD benefits for the same time period). Without notice, the employer/insurer could not have anticipated that Pearce-Williams would seek to enforce payments that are contrary to law. It follows that the employer/insurer was not required to raise in the June 2008 hearing the issue of whether it was entitled to offset payments already made in the form of TPD benefits.

Also, the August 2008 order did not specify the amount that the employer/insurer was required to pay as a result of the reclassification of the claimant’s injury. Rather it directed the employer/insurer “to recommence temporary total disability benefits effective the date of suspension, 02/03/2003.” Under the circumstances it was reasonable for the employer/insurer to interpret the order to mean that it had to make up the difference.

Finally, contrary to the assertion of Pearce-Williams, neither OCGA § 34-9-243 nor the associated rule required the employer/ insurer to formally request a credit under the present facts. OCGA § 34-9-243 (a) provides that when an employer/insurer pays “weekly benefits due,” it is entitled to a credit for three types of other payments: payment of “any benefit when not due”; payment “of salary or wages”; or payment of any unemployment benefits. Similarly, OCGA § 34-9-243 (b) provides that the employer’s obligation shall also be reduced by the employer funded portion of payments from disability plans, wage continuation plans, or disability policies. The corresponding rule dictates that form WC-243 must be completed “no later than 10 days prior to a hearing” in order to obtain any such credit. See Rule 243 of the Rules and Regulations of the State Board of Workers’ Compensation. Failure to seek the credit is res judicata in later proceedings. Webb, 228 Ga. App. 278.

But the TPD payments made by the employer/insurer in this case do not fall into any of the categories stated above. The prior payment of TPD benefits clearly is not payment of “salary or wages” or unemployment benefits, nor is it a payment from a disability plan, wage continuation plan, or disability policy. The payment cannot be characterized as payment of “any benefit when not due,” either. Pearce-Williams never claimed that her employer/insurer was not required to pay TPD benefits; rather, she claimed that she was entitled to payment at a higher rate because of the reclassification of her condition. Thus, the requirements of Rule 243 were not triggered.

The cases of Vought, 281 Ga. App. 338; Webb, 228 Ga. App. 278; and Hansche v. City of Atlanta Police Dept., 242 Ga. App. 606 (530 SE2d 512) (2000), are distinguishable. Vought (credit sought for wages paid) and Hansche (credit sought for salary paid) deal with claimed credits that fall under subsection (a) of OCGA § 34-9-243, and Webb deals with a claimed credit for an employer sponsored disability plan that falls under subsection (b).

Judgment reversed. Barnes, P. J., and Blackwell, J., concur specially.

Barnes, Presiding Judge,

concurring specially.

While I agree with the majority that the superior court’s order must be reversed, I do not believe we need to reach all of the issues addressed by the majority. I therefore concur in the majority opinion, but in the result only. The majority opinion thus decides only this case and may not be cited as binding precedent. Court of Appeals Rule 33 (a).

Decided November 3, 2011.

Hamilton, Westby, Antonowich & Anderson, Joseph T. Brasher, William J. Turner, for appellants.

Fink, Cohen & Snyder, David H. Fink, for appellee.

More specifically, the majority concludes that “the ALJ had a basis for finding as a matter of fact that Pearce-Williams was only seeking the difference between the amount already paid as TPD benefits and the amount due as TTD benefits for the relevant period of time.” I agree with the majority that the superior court erred in failing to defer to this factual finding. And because Pearce-Williams at the prior hearing only sought the difference between the amount already paid as TPD benefits and the amount due as TTD benefits, I likewise agree that, contrary to the superior court’s ruling, the employer was under no obligation at the prior hearing to seek a credit or set off for the amount paid as TPD benefits. It follows that the superior court erred in holding that the doctrine of res judicata applied in this case.

However, because the ALJ’s factual determination is dispositive of this case, the majority did not need to go any further in discussing the res judicata issue. In particular, I do not think it necessary to resolve the more general questions of whether an employer in an administrative hearing to determine workers’ compensation benefits is obligated to seek a set off for payments already made in the form of TPD benefits or whether OCGA § 34-9-243 requires an employer to seek a credit for such payments. These are much closer questions, best left for another day where their resolution is necessary for deciding the case on appeal.

I am authorized to state that Judge Blackwell joins in this special concurrence.

       The order also states, “The Employer/Insurer are entitled to a credit for all permanent partial disability benefits paid following the suspension of temporary total disability benefits.” But that sentence refers to a form of benefits not at issue here.

       The ALJ listed a second issue that is not relevant to this appeal.


author: Doyle, Judge.

text:
    A11A1227.
    ELWELL et al. v. KEEFE et al.
    (718 SE2d 587)
   Doyle, Judge.

This appeal arises from an action alleging breach of a promissory note filed by Betty D. and Kenneth W Keefe against DCI Logistics, Inc. (“DCI”), W Larry Elwell, and J. Brian West. The Keefes claimed that the language of the promissory note, pursuant to which the Keefes loaned $50,000 to DCI, also served as Elwell’s and West’s personal guarantees of the debt. The trial court granted summary judgment to the Keefes, and Elwell and West (collectively “the Appellants”) now appeal. For the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The document at issue is a single page long and is titled “Promissory Note — Balloon.” In pertinent part, it states:

FOR VALUE AND CONSIDERATIONS RECEIVED, (We), the undersigned DCI Logistics Inc., (Borrower) individually guarantee to pay Betty D[.J Keefe and Kenneth W Keefe (Lender) the total sum of Fifty Thousand (50,000.00) dollars and no cents which includes interest payment of ten percent (10.0%) per year, payable monthly on or before the first day of each month the loan is in effect.
Each maker, surety, guarantor and endorser of this Note waves [sic] presentation [sic], notice and protest, all [sure-tyship] defenses and agrees to all extensions, renewals, or releases, discharge or exchange of any other party or collateral without notice.

Under this paragraph, the signatures of Elwell and West appear under each of which appears: “DCI Logistics Inc. — [printed name] [title at the company].”

Ultimately, DCI defaulted on the loan from the Keefes, who thereafter instituted this action to recover the money from DCI and the Appellants.

“ ‘Contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court.’ ” Pursuant to OCGA § 13-5-30 (2), a personal guarantee agreement must be executed in writing. Generally, the Appellants “and the corporation are entirely separate and distinct entities.” “[CJontracts may be signed by one acting in a representative capacity,” or a representative may make himself liable for the debt of the corporation; this Court examines the language of the contract to determine in what capacity the representative is bound.

Before the trial court and on appeal, the Keefes contend that the Appellants’ single signatures on the promissory note also served to contract them personally to guarantee the debt of DCI. We disagree.

Here, the plain language of the document, although poorly drafted, establishes that it is a promissory note made between the Keefes and DCI, and the Appellants signed the document in their representative capacity on behalf of the corporation. Consistent with the principle that contracts of surety or guarantee are strictly construed and are statutorily barred from extension by interpretation or implication, we read this document only to bind DCI to repay the debt.

The Keenes rely heavily on this Court’s decisions in Kirves v. Juno Indus. and Upshaw v. Southern Wholesale Flooring Co. in which this Court explained that the corporate officers had personally bound themselves to pay the debt of the corporation in the documents at issue. This Court explained that the mere fact that the individuals’ company titles appeared after their names was not enough to establish in the face of the plain language of the remainder of the documents that the individuals were signing only in their representative capacities. Here, however, such plain language of personal guarantee does not appear either in the title or the body of the documents in this case.

Decided November 3, 2011.

Weissmann & Zucker, Scott I. Zucker, Wasson, Sours & Harris, Jane E. Hagood, for appellants.

Johnson & Ward, Stanley E. Kreimer, Jr., for appellees.

On the other hand, we find instructive Groth v. Ace Cash Express, Inc., in which this Court addressed a similar contractual dispute involving partners of an assignee corporation who were alleged to have personally guaranteed the obligations of the corporation in the disputed franchise agreement. The partners signed the agreement once, and their positions within the assignee corporation were listed with their signatures. The agreement, however, contained an assumption clause, which stated that the “Assignee hereby assumes the obligations and liabilities of Assignor in and under the Franchise Agreement, including to personally guarantee the obligations of the Assignee as set forth in the Franchise Agreement. . . ,” This Court reversed the trial court’s determination that the agreement served as a personal guarantee of the partners, explaining that “a single signature generally denotes that the person is signing in either an individual or representative capacity, but not both. And . . . the assignment contract in this case does not unequivocally state that [the principals] are guaranteeing [the corporation’s] debt.” Similarly, the document at issue contains only a single signature by the Appellants, which signatures are accompanied by the company name and followed by the individuals’ printed names and their titles within the company.

Therefore, the trial court erred by determining that the document served as both a promissory note between DCI and the Keefes and a personal guarantee between the Appellants and the Keefes such that the Appellants were personally liable for DCI’s debt. Accordingly, we reverse the trial court’s grant of summary judgment to the Keefes as well as the trial court’s denial of partial summary judgment to the Appellants.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.

       The trial court also entered summary judgment against DCI, but the corporation has not appealed that portion of the trial court’s order. While the trial court’s grant of summary judgment constituted a grant of complete relief under the complaint, because the Keefes alleged alternative causes of action in their amended complaint, those claims remain pending below and make up no part of this Court’s reversal of summary judgment.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 794 (1) (a) (709 SE2d 336) (2011).

        Citizens & Southern Nat. Bank v. Yeager Enterprises, 247 Ga. 797, 798-799 (279 SE2d 674) (1981).

        Keane v. Annice Heygood Trevitt Support Trust, 285 Ga. App. 155, 157, n. 12 (645 SE2d 641) (2007). Cf. Rawlings v. Robson, 70 Ga. 595, 596-597 (1) (1883) (“Where the principal is distinctly indicated ... on the face of the paper, such principal, and not the agent, will be the party liable. The rule, however, is that this must appear in some way; the particular form in which it is done is immaterial, if it in fact be done for the principal, and substantially in his or her name, that will be sufficient.’’).

       See Upshaw v. Southern Wholesale Flooring Co., 197 Ga. App. 511, 513 (3) (398 SE2d 749) (1990).

       See Keane, 285 Ga. App. at 157.

       See OCGA § 10-7-3 (“The contract of suretyship is one of strict law; and the surety’s liability will not be extended by implication or interpretation.”); see also Sysco Food Svcs. v. Coleman, 227 Ga. App. 460, 462-463 (489 SE2d 568) (1997).

       226 Ga. App. 508 (487 SE2d 31) (1997).

        Upshaw, 197 Ga. App. at 511.

       See Kirves, 226 Ga. App. at 509; Upshaw, 197 Ga. App. at 513 (3).

       276 Ga. App. 350 (623 SE2d 208) (2005).

       See id. at 351.

       See id. at 351-352.

       Id. at 351.

       (Footnote omitted.) Id. at 353.


text:
    A11A0975.
    BREWER v. THE STATE.
    (718 SE2d 612)
   Doyle, Judge.

After a trial, a Barrow County Superior Court found David Brewer guilty of possession of a firearm during the commission of a crime and criminal damage to property. Brewer appeals, arguing that the trial court erred by admitting statements he made to officers because they were not voluntarily made. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, Brewer drove Linton “Quintez” Rhodes and Robert Ellington to the home of a woman whom Rhodes was dating after Rhodes had a telephonic altercation with the woman’s brother. When the three arrived at her home, Ellington fired six or seven gunshots at the home and the brother’s vehicle, resulting in damage to the house and the car. At the time of the shooting, the woman, her brother, her sister, another adult male, and a small child were in the home, and the three siblings were awake and frightened by the shots. Shell casings from a Winchester rifle were found at the scene; a rifle matching the shell casings was recovered from Ellington’s home.

The woman called the police, giving them Rhodes’s information and discussing the prior altercation; after investigating the scene, officers interviewed Rhodes, who implicated Brewer and Ellington. Brewer made a statement to investigators that he drove the car during the event, and his statement was introduced at trial.

Brewer was charged with five counts of aggravated assault, one count of criminal damage to property in the first degree, and four counts of possession of a weapon during the commission of a crime. The jury acquitted Brewer of all five counts of aggravated assault, but convicted him of criminal damage to property in the first degree and two counts of possession of a firearm during the commission of a crime. The trial court set aside one of the guilty verdicts for possession of a firearm during the commission of a crime because the jury had acquitted Brewer of the underlying crime of aggravated assault; the court also directed not guilty verdicts as to the remaining two counts of possession of a weapon during the commission of a crime. Thereafter, Brewer filed a motion for new trial, waiving his right to a hearing, and the trial court denied the motion without explanation.

Brewer contends that the trial court erred by denying his motion to suppress his statements to police because he did not make a knowing and voluntary waiver of his constitutional right against self-incrimination.

Before trial, the court conducted a Jackson-Denno hearing and listened to the audio of the interview and reviewed Brewer’s waiver-of-rights form. Following the hearing, the trial court denied Brewer’s motion to suppress the statements, finding that his statements “were made freely and voluntarily without the slightest hope of benefit or remotest fear of injury” and permitted them to be introduced into evidence.

Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial. When not made freely and voluntarily, a confession is presumed to be legally false and cannot be the underlying basis of a conviction. To make a confession admissible, it must have been made voluntarily, i.e., without being induced by another by the slightest hope of benefit or remotest fear of injury. The State bears the burden of demonstrating the voluntariness of a confession by a preponderance of the evidence^ and u]nless clearly erroneous, a trial court’s factual and credibility determinations related to the admissibility of a confession will be upheld on appeal.

At the hearing, Investigator Faynette Spaulding testified that after Rhodes disclosed Brewer’s involvement in the events, she called Brewer and told him she wanted to speak to him about the case. Brewer, who was 21 years old at the time and had completed the ninth grade, drove to the police station, where Spaulding Mirandized him and presented him with a waiver-of-rights form, which he read and signed. Although the form did not contain a list of potential charges at that time, Spaulding testified at the hearing that there were no charges pending against Brewer, but she explained that she wanted to discuss the shooting incident with him prior to questioning him.

While Brewer contends that Spaulding failed to disclose on his waiver form the potential charges he faced, this Court has previously explained that “a law enforcement officer’s failure to advise a suspect as to the crimes about which he is to be questioned prior to the suspect’s waiver of his Miranda rights is not relevant to the question of whether the suspect’s waiver was knowing and voluntary.” Brewer also argues that his statements to Investigator Spaulding indicated that he believed he would be arrested if he did not answer her questions. Pretermitting whether this argument is supported factually, this Court previously has held that “the fact that he was told he would be arrested if he refused to talk to the police officers does not amount to coercion making his statements inadmissible. Such statements are in the nature of a mere truism [and] simply made [Brewer] aware of potential legal consequences.”

Decided November 4, 2011.

Mary Erickson, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Here, Investigator Spaulding testified that she was investigating the shooting incident, but that Brewer was free to leave; that Brewer did not appear to be under the influence of drugs or alcohol; that Brewer read the waiver-of-rights form aloud prior to being questioned; that Brewer understood his rights; that Brewer signed the waiver-of-rights form; that Brewer did not desire an attorney; that Brewer did not invoke his right to remain silent; and that no one threatened or promised Brewer anything in exchange for his statement. In light of this testimony, the trial court did not clearly err by finding that Brewer knowingly and voluntarily waived his Miranda rights and that his statement about the incident was voluntarily given to investigators.

Judgment affirmed.

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

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-7-22 (a) (1).

       See Reid v. State, 281 Ga. App. 640, 641 (637 SE2d 62) (2006).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       (Citations and punctuation omitted.) Swain v. State, 285 Ga. App. 550, 551 (647 SE2d 88) (2007).

       See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Punctuation omitted.) Rivera v. State, 279 Ga. App. 1, 4 (2) (630 SE2d 152) (2006).

       (Punctuation omitted.) Rollinson v. State, 276 Ga. App. 375, 379 (1) (d) (623 SE2d 211) (2005).

       See, e.g., Rivera, 279 Ga. App. at 3-4 (2); Rollinson, 276 Ga. App. at 379-380 (1) (d).


text:
    A11A1322.
    MEDINA v. THE STATE.
    (718 SE2d 323)
   Doyle, Judge.

Following a bench trial, Gustavo Valdez Medina appeals from his conviction of speeding and driving without a driver’s license. Medina contends that the trial court erred by denying his constitutional challenge to the licensing statute’s requirement that he, an immigrant from Mexico, have a valid Georgia driver’s license. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that a police officer observed Medina driving at a rate of 85 miles per hour in a 65-mile-per-hour speed zone on an interstate highway. The officer executed a traffic stop and asked for Medina’s driver’s license, but Medina did not produce a license or any other identification. The officer issued Medina citations for speeding and driving without a valid driver’s license.

The State filed an accusation alleging the two offenses, and a bench trial was held. At the close of evidence, Medina moved for a directed verdict on the ground that the driver’s license charge was unconstitutional. Specifically, he argued that OCGA § 40-5-20, which requires all non-exempted drivers to have a valid driver’s license issued under the Code chapter, violates the United States Constitution’s Supremacy Clause because that Georgia Code section conflicts with the 1943 Convention on the Regulation of Inter-American Automotive Traffic, an international treaty establishing certain foreign drivers’ rights to drive in the signatory countries without obtaining a local license.

While considering this argument, the trial court stated that it believed it could not take judicial notice of the Convention absent a properly certified copy, and the court stated that Medina could not demonstrate that he had standing to make his challenge because he failed to show that he was “somebody that falls under the purview of this law and is being potentially harmed by this statute. I don’t think we are there.” Thus, the trial court denied Medina’s motion for a directed verdict.

Medina appealed to the Supreme Court of Georgia based on the constitutional question, and that Court transferred the case to the Court of Appeals on the ground that the constitutional question was not addressed by the trial court, leaving only questions of law to be reviewed.

We note as an initial matter that the trial court had authority to take judicial notice of the Convention, even though Medina merely presented the document as an exhibit in the trial court. Therefore, to the extent it ruled otherwise, it erred. But this does not render its judgment fatally flawed because the trial court correctly ruled that Medina cannot demonstrate standing to make the asserted challenge to the statute.

Medina’s argument is premised on the terms of the Convention, which provides as follows, in relevant part:

Every motor vehicle operator before admission to international traffic shall have such driving license as may be required by the laws of his [home jurisdiction] or such as may be issued by any political subdivision thereof having legal authority to issue driving licenses. . . . No operator shall be admitted to international travel who is less than 18 years of age. ...
Evidence of compliance with the conditions of this Convention shall entitle motor vehicles and motor vehicle operators to circulate on the highways of any of the Contracting [countries].

Based on this language, Medina argues that because he had a valid Mexican driver’s license (an untranslated copy of which was presented at the bench trial), he was entitled to drive on the roads of Georgia. Therefore, any further requirement in OCGA § 40-5-20 would conflict with the Convention and violate the Constitution’s Supremacy Clause.

Nevertheless, pretermitting the merits of this argument and the applicability of the Convention to Medina as an undocumented immigrant, Medina’s conduct in this case is not within the scope of that contemplated by the Convention. In addition to the language relied upon by Medina, the Convention also provides that “[a] special international driving license may be required for each operator admitted to circulation in any individual [country] party to this Convention, if the [country] so elects.” Georgia requires such a license for drivers with non-English licenses, and it is undisputed that Medina did not obtain such an international license. Thus, he cannot demonstrate that he is in the class of drivers protected by the Convention.

Furthermore, the Convention also required Medina

to show that the [Mexican] driver’s license [he proffered] fulfilled the requirements of the laws of [Mexico], [and] that the driver’s license was issued by a [Mexican] governmental agency that is authorized to issue such licenses. . . . [S]ince the license itself was the best evidence of its validity and, therefore, its compliance with Georgia law, it must show on its face that it was valid . . . and authorized [Medina] to drive the type or class of vehicle being driven. For lack of translation, the license showed [none of these requirements].

For this reason also, Medina cannot demonstrate his compliance with the Convention because his purported Mexican license was not translated.

“One whose own conduct may be constitutionally proscribed will not be heard to challenge a law because it may conceivably be applied unconstitutionally to others.” Medina’s conduct fell outside the scope of that protected by the Convention, so there is no conflict presented between the Georgia licensing statute and conduct authorized by the Convention. Thus, Medina cannot challenge OCGA § 40-5-20 based on its alleged inconsistency with the Convention, and the trial court did not err in denying Medina’s motion for a directed verdict on this ground.

Decided November 4, 2011.

Taylor & Viers, Richard T. Taylor, for appellant.

Rosanna M. Szabo, Solicitor-General, Karen M. Seeley, Ramsey R. Magaro, Assistant Solicitors-General, for appellee.

Judgment affirmed.

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

       OCGA § 40-6-181.

       OCGA § 40-5-20 (a).

       The State asserts that the appeal is moot in light of the short sentence and because Medina was removed from State custody for deportation. Nevertheless, due to the potential gravity of the issues raised in this case, we exercise our discretion to address the appeal. See Chaplin v. State, 141 Ga. App. 788, 790 (1) (234 SE2d 330) (1977) (courts have discretion to address the merits of cases rendered moot by the defendant’s service of his sentence).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Apparently, Medina previously had filed a written motion in recorder’s court making the constitutional challenge, but the motion was not transferred to the state court, which held the bench trial.

       Convention on the Regulation of Inter-American Automotive Traffic, Dec. 31, 1943, 3 Bevans 865, 1943 U. S. T. LEXIS 185 (hereinafter the “Convention”).

       See, e.g., Marks v. State, 280 Ga. 70, 74-75 (4) (623 SE2d 504) (2005) (declining to rule on constitutional question not resolved by the trial court).

       See Camp v. Sellers & Co., 158 Ga. App. 646, 648 (2) (281 SE2d 621) (1981) (“By express command of the Constitution, it is the duty of the judges of every state to uphold and enforce treaties of the United States, anything in the constitution or laws of any state to the contrary notwithstanding. We therefore take it as established that judicial notice must be taken of a treaty and that it will predominate over any statutory provision of the State of Georgia.”) (citation and punctuation omitted).

       See generally Mathis v. State, 279 Ga. 100, 102 (3) (a) (610 SE2d 62) (2005) (appellate courts “will affirm a trial court’s ruling if it is right for any reason”).

       Convention, art. VI-VII, 1943 U. S. T. LEXIS 185 at *3-*4.

       See, e.g., Camp, 158 Ga. App. at 648 (2) (a national treaty “will predominate over any statutory provision of the State of Georgia”).

       See, e.g., Diaz v. State, 245 Ga. App. 380, 383 (4) (537 SE2d 784) (2000) (not addressing international driving treaty but holding that “[u]ndocumented aliens who have been living in Georgia for . . . years . . . are simply prohibited from driving if they cannot obtain a valid Georgia driver’s license”).

       Convention, art. XIII, 1943 U. S. T. LEXIS 185 at *9.

       See OCGA § 40-5-21 (a) (2) (exempting nonresidents having licenses in languages other than English if they have “a valid international driving permit which conforms to and has been issued in accordance with the provisions of the Convention on Road Traffic, or any similar such treaty . . . concerning driving privileges of nonresidents”) (citation omitted).

        Rocha v. State, 250 Ga. App. 209, 211-212 (551 SE2d 82) (2001).

       (Punctuation omitted.) Dowis v. State, 243 Ga. App. 354, 355 (533 SE2d 434) (2000).

       See Schofield v. Hertz Corp., 201 Ga. App. 830, 832 (2) (412 SE2d 853) (1991) (the treaty supersedes Georgia’s statutory provisions only to the extent the provisions conflict with the treaty).


text:
    A11A1485.
    ODOM v. THE STATE.
    (718 SE2d 329)
   Doyle, Judge.

This Court granted Ronnie David Odom’s application for discretionary review of the revocation of his probation. Odom contends that the trial court erred by revoking his probation for failure to pay court-ordered restitution without correctly inquiring into whether Odom’s failure to pay was willful. For the reasons that follow, we affirm.

Odom entered a negotiated plea to felony theft by taking of $44,200 on April 1, 1999, pursuant to the First Offender Act without an adjudication of guilt. Odom was sentenced as a first offender to serve ten years, three months of which he was ordered to serve in confinement with the remainder to be served on probation. Additionally, Odom was required to pay restitution of $44,794 in addition to fines and costs. As a result of a number of tolling orders, Odom’s probation was set to end on February 3, 2011. The State filed its “petition for adjudication of guilt and imposition of sentence in first offender case” on January 26, 2011, in which it alleged that Odom violated the terms of his probation by failing to report on July 27, 2010, or any day thereafter with his probation officer.

A hearing was held at which Odom’s probation officer testified that her last contact with Odom was in May 2010, that she told him she was going on leave, that she directed him to contact her supervisor via phone during her leave, that he did not contact her supervisor as instructed, and that Odom’s phone number was disconnected shortly before the warrant was issued for his arrest. Odom was arrested on January 9, 2011, pursuant to a warrant for his arrest for violations of his probation. Odom testified that he called the supervisor but was unable to speak to anyone; that he talked to his probation officer in August 2010; and that he did not attempt to make contact with the probation office between August 2010 and the date of his arrest, January 9, 2011, because he was waiting on probation to obtain a court date for him. Regarding the payment of restitution, there was evidence that Odom had paid $11,783.07, but still owed $35,408.96; that Odom had not made a payment since 2007; and that Odom had not worked for three years during that time partially because of arrests for probation violations. Odom testified that he made efforts to find work in his field, including researching on the Internet and talking to friends for referrals. The record includes an affidavit of indigence for Odom.

The trial court inquired as to Odom’s fitness to work and concluded that Odom had no valid reason for not paying restitution. The trial court explained that Odom could have looked for jobs beneath his skill level, like “digging ditches, flipping hamburgers[,] or doing whatever” to make payments toward restitution. The court also noted that Odom’s first arrest for violating his probation did not occur until January 2009, and that he made no payments between 2007 and 2009.

The trial court found Odom guilty of violating the conditions of his probation by failing to pay restitution and by failing to report. The court adjudicated Odom guilty and resentenced him “above and beyond” the original sentence to ten years probation, with the special condition that probation would be terminated early in the event that Odom paid the remainder of the restitution owed. Odom received credit for the restitution paid and for time served on probation.

A court may not revoke any part of any probated or suspended sentence unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged. This [Cjourt will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court. Accordingly, if admissible evidence is presented in support of the allegations regarding revocation of probation, this [CJourt will affirm.

Decided November 4, 2011.

Larry L. Duttweiler, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, Hulsey, Oliver & Mahar, Vanessa E. Sykes, for appellee.

Odom contends that the trial court erred by revoking his probation for failure to pay restitution without meeting the requirements of Johnson v. State and Bearden v. Georgia, We disagree and discern no abuse of discretion on the part of the trial court. In this case, the State’s petition for adjudication of guilt and imposition of sentence alleged that Odom failed to report to his probation officer and failed to pay restitution, and the State presented evidence to support its contention in the form of testimony by Odom’s probation officer. Pursuant to Bearden,

in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority.

Although the trial court may not have used the precise language that Odom had failed to make “sufficient bona fide efforts legally to acquire the resources to pay” his restitution, the trial court considered Odom’s testimony regarding his failure to secure employment over the course of his probation, and the court determined that those efforts were not sufficient and were not valid reasons for failing to pay restitution.

Judgment affirmed.

Ellington, C. J., and Miller, B -/., concur.

       We note that
      [Odom] fails to set out his enumerations of errors as part two of his brief as required by Court of Appeals Rule 22 (a). Neither are [Odom’s] enumerations of errors clearly set out within the brief he filed. However, even though [Odom] fails to enumerate clearly the errors he seeks to have reviewed, we are mindful of the duties of this Court as set out in Felix v. State to consider the appeal where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing what errors are sought to be asserted upon appeal.
      (Punctuation omitted.) Phillips v. State, 267 Ga. App. 733 (601 SE2d 147) (2004), quoting Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999).

       OCGA § 16-8-2.

       OCGA § 42-8-60 et seq.

       (Citation and punctuation omitted.) Griffin v. State, 302 Ga. App. 807, 807-808 (692 SE2d 7) (2010).

       307 Ga. App. 570 (707 SE2d 373) (2011).

       461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983).

        Bearden, 461 U. S. at 672 (II).

       Id.

       Compare Johnson, 307 Ga. App. at 573.


author: Mikell, Judge.

text:
    A11A1513.
    ADVANCED AUTOMATION, INC. v. FITZGERALD.
    (718 SE2d 607)
   Mikell, Judge.

Advanced Automation, Inc. (AAI), appeals from the trial court’s grant of minority shareholder Barbara Fitzgerald’s Application for Inspection of Corporate Records and award of attorney fees pursuant to OCGA § 14-2-1604, contending that the trial court lacked jurisdiction under OCGA § 14-2-940 and, because there was a prior pending action, under OCGA § 9-2-5.

The following facts are not disputed. Barbara Fitzgerald was employed in 1996 by AAI, a Georgia statutory close corporation engaged in assisting small and mid-sized companies with their computer networks, website design and hosting, and development of custom software applications. In 1998, Fitzgerald was appointed as corporate secretary and given a three percent interest in the outstanding shares of AAI as an inducement to stay. In 2000, she was promoted to vice-president of AAI and given an additional 17 percent interest in the outstanding shares, making her a 20 percent owner and minority shareholder of AAI. John Moore was the holder of the remaining 80 percent of the corporate shares and was the chief executive officer of AAI. Differences arose, and Moore forced Fitzgerald out of AAI in May 2010. Moore then offered to purchase Fitzgerald’s shares for $48,000, which Fitzgerald contends is less than one-quarter of their actual value.

On September 23, 2010, Fitzgerald filed suit against Moore and AAI in the Superior Court of Fulton County pursuant to OCGA § 14-2-940, seeking damages from Moore for breach of fiduciary duty, punitive damages, and attorney fees. She also requested that the court require AAI to purchase her shares for their fair value as determined by the court. That same day, Fitzgerald’s counsel sent letters to AAI and its registered agent in Cobb County requesting that AAI’s corporate records be made available for her inspection pursuant to OCGA § 14-2-1602 (b) and (c). When there was no response from AAI, Fitzgerald filed her Application for Inspection and Motion to Compel in the Superior Court of Cobb County on October 14, 2010. Following a hearing on November 2, 2010, the Cobb Superior Court entered its order directing AAI to produce the records requested and awarding Fitzgerald attorney fees of $7,787.50.

A trial court’s decision in this regard will be affirmed unless it is found to be clearly erroneous.

1. AAI’s first enumeration is that the Cobb County Superior Court lacked jurisdiction to grant the application and award attorney fees because OCGA § 14-2-940 conferred exclusive jurisdiction on Fulton County and the Fulton County action was a prior pending action under OCGA § 9-2-5.

(a) We first address the relationship between Code sections 14-2-940 et seq. and 14-2-1602 et seq.

OCGA § 14-2-940, part of Article 9 of the Georgia Business Corporations Code, titled “Close Corporations,” provides, in pertinent part:

(a) Subject to satisfying the conditions of subsections (c) and (d) of this Code section [not applicable here], a shareholder of a statutory close corporation may petition the superior court for any of the relief described in Code Section 14-2-941, 14-2-942, or 14-2-943 if:
(1) The directors or those in control of the corporation have acted, are acting, or will act in a manner that is illegal, oppressive, fraudulent, or unfairly prejudicial to the petitioner, whether in his capacity as shareholder, director, or officer of the corporation;
(b) A shareholder must commence a proceeding under subsection (a) of this Code section in the superior court of the county where the corporation’s principal office (or, if none in this state, its registered office) is located. The jurisdiction of the court in which the proceeding is commenced is plenary and exclusive,
(e) . . . [A] shareholder’s right to commence a proceeding under this Code section and the remedies available under Code Sections 14-2-941 through 14-2-943 are in addition to any other right or remedy he may have.

OCGA § 14-2-941 provides for the granting of “ordinary” relief as follows: (1) the performance of, prohibition of, or alteration of a corporation’s actions; (2) the cancellation or alteration of bylaws or a shareholders’ agreement; (3) the removal of officers and directors; (4) the appointment of officers and directors; (5) an accounting; (6) the appointment of a custodian; (7) the appointment of a provisional director; (8) the payment of dividends; and (9) the award of damages. OCGA § 14-2-942 provides for the extraordinary relief of requiring the corporation to repurchase shares and OCGA § 14-2-943 provides for the extraordinary relief of corporate dissolution.

AAI argues that the italicized language in OCGA § 14-2-940 (b) precluded Fitzgerald’s filing of her Application in Cobb County and that, alternatively, the Fulton County action was a prior pending action pursuant to OCGA § 9-2-5.

OCGA § 14-2-1602, regarding inspection of records by shareholders, is the second section contained in “Article 16 Records and Reports” of the Georgia Business Corporation Code. Subsection (a) provides that all corporations, not just closely held ones, “shall” keep a copy of eight specified types of records. Subsection (b) provides:

A shareholder of a corporation is entitled to inspect and copy, during regular business hours at the corporation’s principal office, any of the records of the corporation described in subsection (a) of this Code section if he gives the corporation written notice of his demand at least five business days before the date on which he wishes to inspect and copy.

Subsection (c) provides:

A shareholder of a corporation is entitled to inspect and copy, during regular business hours at a reasonable location specified by the corporation, any of the following records of the corporation!] if the shareholder meets the requirements of subsection (d) of this Code section[] and gives the corporation written notice of his demand at least five business days before the date on which he wishes to inspect and copy[.]

Subsection (f) provides:

This Code section does not affect: (1) The right of a shareholder to inspect records ... , if the shareholder is in litigation with the corporation, to the same extent as any other litigant; or (2) The power of a court, independently of this chapter, to compel the production of corporate records for examination.

OCGA § 14-2-1604 provides the remedy for a shareholder whose requests under OCGA § 14-2-1602 (b) and (c) to inspect and copy have not been met. In such a situation, the shareholder “may apply to the superior court in the county where the corporation’s registered office is located” and that court “may summarily order inspection and copying of the records demanded at the corporation’s expense upon application of the shareholder.”

In order to come to the conclusion urged by AAI, we would need to consider the italicized language of OCGA § 14-2-940 (b) relied on by AAI in a vacuum.

It is a cardinal rule of statutory construction that the literal meaning of the statute prevails unless such a construction would produce unreasonable or absurd consequences not contemplated by the legislature. Moreover, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.

So reading the statutes involved here, it is apparent that the legislature intended Code sections 14-2-940 through 14-2-943 to provide relief to a minority shareholder in a closely held corporation when the majority shareholder and officer has acted or will act in a manner that is illegal, oppressive, fraudulent, or unfairly prejudicial to the minority shareholder. That is the relief being sought here by Fitzgerald in her Fulton County suit against AAI and Moore. While the jurisdiction of the Superior Court of Fulton County over this proceeding is “plenary and exclusive,” it is also clear on the face of the statute that the shareholder’s rights and remedies under it “are in addition to any other right or remedy [s]he may have.”

Therefore, we do not find, as urged by AAI, that the language of OCGA § 14-2-940 (b) precluded Fitzgerald’s availing herself of the provisions of OCGA §§ 14-2-1602 and 14-2-1604 in Cobb County.

(b) Nor do we find that the pendency of the Fulton County action precluded the filing of Fitzgerald’s application in Cobb County under OCGA § 9-2-5.

That statute requires that the two causes of action be the same and involve the same parties, which we do not find here.

First, Fitzgerald’s application in Cobb County is against only AAI while her action in Fulton County includes claims against both AAI and Moore. Further, the causes of action are not the same. The Cobb County suit sought only access to corporate records and attorney fees, while the Fulton County suit sought damages for breach of fiduciary duties, punitive damages, attorney fees, and the forced repurchase of Fitzgerald’s shares by AAI at a price determined by the court.

Therefore, OCGA § 9-2-5 does not apply to this case.

2. AAI’s second enumeration is that the trial court erred in awarding attorney fees pursuant to OCGA § 14-2-1604 because it failed to hold an evidentiary hearing and the award was unreasonable.

An award of attorney fees pursuant to this statute “will be affirmed on appeal if there is any evidence to support it unless, as a matter of law, the corporation proved that it refused inspection in good faith.”

Decided November 4, 2011.

Thomas R. Todd, Jr., for appellant.

Caldwell & Watson, Robert S. Carlson, Jeremy M. Moeser, for appellee.

During the hearing in Cobb County, Fitzgerald’s counsel tendered an affidavit from an associate regarding the hours spent on the matter and a calculation of the attorney fees and expenses owed. Asked if he had any objections to it, AAI’s counsel stated “[w]ell, your Honor, I don’t think we’re going to get there.” The trial court then specifically asked if AAI’s counsel had any objection to the admissibility of the affidavit, to which he responded “[n]o sir. I’m sorry, I don’t.”

Following this hearing, the trial court allowed additional briefs to be filed and a subsequent affidavit documenting attorney fees incurred in this briefing was filed on Fitzgerald’s behalf. The record here contains no objection of record to that affidavit.

There was a hearing held and evidence regarding attorney fees was tendered. To this procedure and this evidence, AAI’s counsel voiced no objection. Therefore, any such objections have been waived.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

        Parker v. Clary Lakes Recreation Assn., 243 Ga. App. 681, 683 (534 SE2d 154) (2000). Cf. Grapefields, Inc. v. Kosby, 309 Ga. App. 588, 589 (710 SE2d 816) (2011).

       AAI contends that its principal office is in DeKalb County, but Fitzgerald filed in Fulton due to Moore’s residing there. “[J]oint tort-feasors, obligors, or promisors, . . . residing in different counties, may be subject to an action as such in the same action in any county in which one or more of the defendants reside.” OCGA § 9-10-31 (b).

       (Emphasis supplied.)

       “(a) No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. ... If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.”

       Included are articles of incorporation and amendments thereto, bylaws and amendments thereto, resolutions dealing with the number and classifications of directors, resolutions dealing with classes or series of shares, minutes of shareholders meetings, communications to shareholders, a list of the names and business addresses of the current directors and officers, and the most recent annual registration delivered to the Secretary of State.

       Included are excerpts of minutes of any meeting of the board of directors and records of any action of a committee of the board, accounting records of the corporation, and the record of shareholders.

       Demand made in good faith and for a proper purpose; the records are connected to that purpose; the records will only be used for the stated purpose.

       OCGA § 14-2-1604 (b), (c).

       OCGA § 14-2-1604 (a).

       (Citations and punctuation omitted.) Ga. Society &c. Surgery Centers v. Ga. Dept. of Community Health, 309 Ga. App. 31, 35 (1) (710 SE2d 183) (2011), cert. granted on other grounds, 2011 Ga. Lexis 702 (unpublished) (whether the Georgia Society of Ambulatory Service Centers and its members were required to exhaust administrative remedies).

       See generally Gallagher v. McKinnon, 273 Ga. App. 727, 730-732 (1) (615 SE2d 746) (2005).

       OCGA § 14-2-940 (b).

       OCGA § 14-2-940 (e).

       Cf. Mannato v. SunTrust Banks, 308 Ga. App. 691 (708 SE2d 611) (2011) (discussing the legislative history of the Georgia Business Corporation Code enacted in 1988 and, specifically, OCGA § 14-2-1602).

       We note that, asked directly by the Cobb trial court if the Superior Court of Cobb County had “jurisdiction here,” AAI’s counsel responded “[ajbsolutely.”

       Cf. Tallant v. Executive Equities, 230 Ga. 172, 173 (195 SE2d 904) (1973) (finding that an equitable action in Fulton County seeking injunctive relief against the issuance of Class B stock was not precluded by pending DeKalb County action seeking a mandamus requiring corporation to call special shareholders’ meeting regarding the matter).

       (Citation omitted.) Grapefields, Inc. v. Kosby, 309 Ga. App. at 589.

        Tavakolian v. Agio Corp., 304 Ga. App. 660, 663-664 (3) (697 SE2d 233) (2010).