author: Dillard, Judge.

text:
    A10A0988.
    TRIPLE EAGLE ASSOCIATES, INC. v. PBK, INC. et al.
    (704 SE2d 189)
   Dillard, Judge.

This case concerns the enforceability of a settlement agreement negotiated between counsel to the parties and announced to the trial judge in open court. The trial court held that the material terms of the settlement agreement were vague, indefinite and uncertain, rendering the agreement unenforceable. The trial court also granted the defendants’ petition to cancel the notice of lis pendens filed by the plaintiff in connection with the settlement agreement. For the reasons discussed below, we conclude that the settlement agreement was enforceable as a matter of law and reverse the trial court’s rulings.

On appeal from a trial court’s order on a motion to enforce a settlement agreement, “we apply a de novo standard of review, viewing the evidence in a light most favorable to the nonmoving party.” So viewed, the record shows that plaintiff-appellant Triple Eagle Associates, Inc. (“Triple Eagle”) entered into an agreement to purchase multiple parcels of unimproved land located in Union County for $28,500,000. The defendants-appellees are a group of companies (“Seller Defendants”) that agreed to sell and convey certain parcels of property to Triple Eagle under a purchase agreement. Per the terms of this agreement, Triple Eagle deposited $1,500,000 of earnest money into an escrow account, $500,000 of which was to be used to close on one parcel of the property referred to as the “Frontage Property,” and $1,000,000 of which was to be applied to the subsequent closing on the remaining parcels referred to as the “Development Property.”

The parties closed on the Frontage Property, but were unable to close on the Development Property. The amended purchase agreement provided that if the closing on the Development Property did not occur by a specific date, title to the Frontage Property would then revert to the Seller Defendants, and that this right of reversion would be the “sole and exclusive remedy ... as full liquidated damages.” When the closing on the Development Property did not occur by the required date, title to the Frontage Property reverted to the Seller Defendants, but the Seller Defendants also requested and received the remaining $1,000,000 in earnest money from the escrow agent (notwithstanding the foregoing remedy limitation).

Triple Eagle demanded that its earnest money be paid back immediately, but the Seller Defendants refused to do so. Triple Eagle then commenced the instant suit, alleging that the Seller Defendants unlawfully retained $1,000,000 in earnest money because the exclusive remedy for the failure to close on the Development Property under the terms of the amended purchase agreement was the right to reversion of title to the Frontage Property. The complaint sought return of the $1,000,000 in earnest money, as well as additional compensatory damages, prejudgment interest and attorney fees. After the Seller Defendants filed their respective answers, Triple Eagle filed a motion for judgment on the pleadings.

When the parties appeared for a hearing on Triple Eagle’s motion, counsel announced in open court that a settlement had been reached on “the courthouse steps.” The relevant terms of the settlement agreement, as transcribed by the court reporter, are as follows:

[T]he [Seller Defendants] will pay to [Triple Eagle] $1.3 million. That payment will be made upon the sale of the property that is the subject of the action. Until such time as payment is made, four-percent interest will accrue on the indebtedness. The indebtedness will be secured by a second mortgage on the property and this is all of the property that is subject to the action. . . . We will be dismissing the case without prejudice subject to a tolling agreement that would allow the parties to reassert their claims in the event that the property is not able to be marketed within a suitable period of time.

Following this announcement, Triple Eagle made numerous attempts to obtain from the Seller Defendants an executed deed to secure debt, but the Seller Defendants inexplicably refused to cooperate or comply with this requirement of the settlement agreement. After three months of “radio silence” from the Seller Defendants, Triple Eagle filed a motion to enforce the settlement agreement and a notice of lis pendens (reflecting the pending litigation over the settlement). Unsurprisingly, the Seller Defendants then hired new counsel, who immediately filed a one-page objection to Triple Eagle’s motion to enforce the settlement agreement. Curiously, the Seller Defendants did not file a memorandum providing any argument or citation to legal authority in support of their objection. The Seller Defendants separately filed a petition to cancel the notice of lis pendens.

After holding two hearings to address the matter, the trial court concluded that the settlement agreement was unenforceable and denied Triple Eagle’s motion to enforce same. According to the trial court, the settlement agreement was lacking in certainty and definiteness with respect to the time for performance, the terms of payment, and the subject matter of the agreement. Based upon its conclusion that the settlement agreement was unenforceable, the trial court also granted the Seller Defendants’ petition to cancel the notice of lis pendens. Triple Eagle now appeals from these rulings.

1. As an initial matter, we note that the Seller Defendants chose not to file a brief on appeal. For this reason, “we accept [Triple Eagle’s] statement of facts as prima facie true and decide the case on the basis of this statement and the evidence cited and quoted in support thereof.”

2. Triple Eagle contends that the trial court erred in concluding that the settlement agreement was unenforceable for lack of certainty and definiteness. We agree.

An agreement by counsel of the parties to settle a lawsuit pursuant to terms announced in open court can create an enforceable contract. For such a contract to be enforceable, the parties must agree on all material terms, and those terms cannot be incomplete, vague, uncertain or indefinite. In considering whether a contract is unenforceable, however, a trial court must bear in mind that “[t]he law leans against the destruction of contracts on the ground of uncertainty,” and the uncertainty and indefiniteness at issue must be “extreme” to warrant the conclusion that a contract cannot be enforced. As we explained in Ruskin v. AAF-McQuay, Inc.:

It is unnecessary that a contract state definitively and specifically all facts in detail to which the parties may be agreeing, but as to such matters, it will be sufficiently definite and certain if it contains matters which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves.

This is particularly true with respect to settlement agreements, which “are highly favored under the law and will be upheld whenever possible as a means of resolving uncertainties and preventing lawsuits.”

With these standards in mind, we will now address each of the trial court’s stated reasons for holding that the settlement agreement was unenforceable.

(a) The trial court first concluded that the settlement agreement was unenforceable because “[t]here [was] no definite time for the enforcement of the agreement.” As previously noted, the settlement agreement provides, inter alia, that payment of $1,300,000 by the Seller Defendants is due upon a contingency: “the sale of the property,” and that the parties may reassert their underlying substantive claims “in the event that the property is not able to be marketed within a suitable period of time.” Based upon the hearing transcripts, the trial court appears to have concluded that the parties’ use of the term “marketed” and the phrase “suitable period of time” rendered the duration of the settlement agreement indefinite and uncertain. In so holding, the trial court erred.

In considering this aspect of the trial court’s ruling, we begin by considering the term “marketed” and its proper interpretation under the settlement agreement, which is “ ‘a question of law for the court.’ ” Here, the term “marketed” was not defined by the parties as part of their settlement agreement, but the ordinary signification of “market” and “marketed” is “to be for sale,” “to offer for sale,” “the action or business of buying and selling,” or “a purchase or sale.” And the context of the settlement agreement clearly evinces the parties’ intent to not only offer the subject property up for sale, but to actually sell the property in order to fund (in whole or part) the Seller Defendants’ settlement payment of $1,300,000 to Triple Eagle:

The terms by which the matter [has] been resolved are that the defendants will pay to the plaintiff $1.3 million. That payment will be made upon the sale of the property that is the subject of the action.

The parties’ subsequent use of the term “marketed,” then, unquestionably encompasses the word’s natural linguistic coupling of offering and selling an item in the marketplace.

Furthermore, even if the parties’ use of the term “marketed” were arguably ambiguous, this ambiguity is easily resolved by an affidavit from one of Triple Eagle’s attorneys (who also announced the terms of settlement in open court), in which he attests that the parties intended for the term “marketed” to mean the ultimate sale of the subject property. The Seller Defendants, having failed to file a brief on appeal, do not contest this averment or direct the Court to any parol evidence that would possibly support a different conclusion. Accordingly, the uncontroverted parol evidence establishes (to the extent necessary) that the parties intended for the term “marketed” to mean the ultimate sale of the subject property.

This brings us to the trial court’s conclusion that the phrase “suitable period of time” also renders the settlement agreement indefinite and uncertain. As previously noted, the settlement agreement required the parties to dismiss this civil action without prejudice, “subject to a tolling agreement that would allow the parties to reassert their claims in the event that the property is not able to be marketed within a suitable period of time.” Stated another way, the settlement agreement provides that once a “suitable” time has passed for the property to be sold, payment is no longer required from the Seller Defendants, and the parties are then free to reassert their claims against one another. In using the phrase “suitable period of time,” the parties did not render the settlement agreement indefinite and uncertain (and thus unenforceable), and the trial court erred in holding otherwise.

Indeed, where no definite time is stated for the performance of a contract, “the presumption is that the parties intended that performance would be had within a reasonable time”; and a contract requiring performance within a reasonable time is sufficiently definite to be enforceable. Moreover, because the term “suitable” is synonymous with “reasonable,” the time for the performance of the settlement agreement was neither indefinite nor uncertain, and the trial court erred in holding otherwise.

(b) The trial court further concluded that the settlement agreement was unenforceable for lack of certainty in the terms of payment, reasoning that even if the agreement is construed as requiring the Seller Defendants to pay $1,300,000 upon the sale of the property, “[i]t is unclear whether this settlement amount is payable regardless of the sale price ... or whether the settlement amount applies only if the sale price covers the $1.3 million plus any outstanding indebtedness.” On this basis, the trial court held that the settlement agreement was void, and in doing so erred.

By its plain and unambiguous terms, the settlement agreement does not require a sale of the property at any specific price or place any conditions whatsoever on the $1,300,000 payment (e.g., a certain sales price being obtained by the Seller Defendants). Instead, the agreement simply provides that “[t]he payment will be made upon the sale of the property that is the subject of the action.” And where the terms of a written contract are plain and unambiguous, a court must confine itself to the four corners of the document to ascertain the parties’ intent, and is not permitted to “strain the construction of [a contract,] so as to discover an ambiguity.” Unfortunately, this is exactly what the trial court did by viewing the absence of a specific sales price in the settlement agreement as creating uncertainty and indefiniteness; instead, the court should have concluded that the absence of a specific price meant that no such sales price was required. The trial court’s conclusion that the settlement agreement’s terms of payment lacked certainty, therefore, was ill-founded.

(c) The trial court also concluded that the settlement agreement was unenforceable because “[t]he extent of the subject matter” was uncertain. Specifically, the court took issue with the parties’ use of the phrase “property that is the subject of the action.” In doing so, the court appears to have accepted the Seller Defendants’ argument below that this phrase referred to all of the parcels of property identified in the amended purchase agreement, which included two parcels owned by third parties not involved in this litigation, and that, on this basis, the settlement agreement was unenforceable. Triple Eagle, however, maintains that the phrase “property that is the subject of the action” refers to the parcels of property owned by the Seller Defendants that are readily identifiable from the descriptions of those parcels in the complaint and the amended purchase agreement (which is attached to the complaint). We agree with Triple Eagle.

A contract is not ambiguous, “even though difficult to construe, unless and until an application of pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.” And under the pertinent rules of contract interpretation, “[t]he construction of a particular phrase that will uphold a contract in its entirety is preferred, and the entire contract must be looked at in the construction of any of its parts.”

Under the Seller Defendants’ interpretation of the phrase “property that is the subject of the action,” the settlement agreement would affect property owned by third parties not involved in this litigation by requiring that their parcels also be subject to the second mortgage intended to secure the payment of $1,300,000 by the Seller Defendants to Triple Eagle. And if the settlement agreement were actually construed in this manner, it would render the agreement at least partially unenforceable because the third-party owners would be necessary parties to any attempt to require the placement of a second mortgage on their parcels. In contrast, Triple Eagle’s interpretation of the phrase “property that is the subject of the action” as referring only to the parcels owned by the Seller Defendants avoids this enforceability problem altogether. Because Triple Eagle’s interpretation of this phrase upholds the settlement agreement in its entirety, the applicable rules of construction lead us to resolve any ambiguity in the agreement in favor of that interpretation. Accordingly, the trial court erred in concluding that the subject matter of the settlement agreement was indefinite and thus unenforceable.

(d) In concluding that the settlement agreement was too uncertain to be enforceable, the trial court relied on two of this Court’s prior decisions, Key v. Naylor and Lemming v. Morgan. This reliance was misplaced. In Key, the duration of the contract and the terms of payment were clearly vague and uncertain. The written employment agreement at issue in Key set an initial ten-year term for its duration, but further provided that the employee could “extend her employment indefinitely at her option,” and then went on to provide that the agreement was enforceable “even if she was no longer employed by [the company].” As to terms of payment, the agreement defined “salary” as the employee’s “current rate with periodic increases,” with no indication of timing or manner of calculation of those increases. The terms of the oral partnership contract at issue in Lemming were also unquestionably vague and uncertain, obligating the first partner to transfer his one-half interest in certain real property to the second partner “if and when [the first partner’s] personal and tax problems subsided.” In contrast, payment under the settlement agreement was predicated on the contingency that the property be sold within a “suitable period of time,” which, as previously noted, is sufficiently certain and definite to be enforceable.

For the reasons discussed in Division 2 (a)-(d), we conclude that the uncontroverted evidence of record demonstrates that the settlement agreement is not so uncertain or indefinite as to render the agreement unenforceable. Consequently, the trial court committed reversible error by denying Triple Eagle’s motion to enforce the settlement agreement against the Seller Defendants.

3. Triple Eagle maintains that the trial court also erred in canceling the notice of lis pendens it filed in connection with the settlement agreement. Again, we agree with Triple Eagle.

The purpose of a lis pendens “is to notify prospective purchasers that the property in question is directly ‘involved’ in a pending suit, in the sense that the suit seeks some relief respecting that particular property.” Real property is directly “involved” in a civil action, for purposes of determining whether a notice of lis pendens was properly filed, if a lien will be imposed on the property as a result of the party who filed the lis pendens ultimately prevailing in the part of the suit under consideration. That is certainly the case here, since enforcement of the settlement agreement includes securing the prospective $1,300,000 payment with a second mortgage on the property of the Seller Defendants. It follows, then, that the trial court erred in canceling the notice of lis pendens filed by Triple Eagle.

Decided November 23, 2010.

Ichter & Thomas, Cary Ichter, S. Renee Huskey, for appellant.

Ann M. Vaughan, Kenya L. Patton, Jack C. Lance, Jr., for appellees.

4. In light of our holdings in Divisions 2 and 3, Triple Eagle’s remaining enumeration of error is moot and need not be addressed.

In sum, the trial court’s rulings are reversed, and the case is remanded with instructions to grant Triple Eagle’s Motion to Enforce Settlement, to reinstate the Notice of Lis Pendens filed by Triple Eagle, and to hold a hearing on Triple Eagle’s Motion for Attorney Fees.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Blackwell, J., concur.

        Matrix Fin. Servs. v. Dean, 288 Ga. App. 666, 666 (655 SE2d 290) (2007) (citation and punctuation omitted).

       The Seller Defendants are PBK, Inc.; Karis Holding, LLC; Queens Valley, LLC; Looking Glass Holdings, LLC; White Bark, LLC; Blasingame Properties One, LLC; and Sparky Holdings, LLC.

       The Seller Defendants’ prior attorney and counsel for Triple Eagle agreed to the form of a deed to secure debt (drafted by the Seller Defendants’ prior attorney), but, notwithstanding this agreement, the deed was never executed and filed.

       The trial court’s decision to grant the Seller Defendants’ petition to cancel the notice of lis pendens is directly appealable under the collateral-order doctrine. See, e.g., Scroggins v. Edmondson, 250 Ga. 430, 432 (1) (c) (297 SE2d 469) (1982). As such, the trial court’s denial of Triple Eagle’s motion to enforce the settlement agreement is subject to appellate review under OCGA § 5-6-34 (d).

        Daniel v. Allstate Ins. Co., 290 Ga. App. 898, 900 (1) (660 SE2d 765) (2008) (punctuation and footnote omitted); see also Clark v. Stafford, 239 Ga. App. 69, 69 n.1 (522 SE2d 6) (1999) (same); Jones v. Cooke, 169 Ga. App. 516, 516 (1) (313 SE2d 773) (1984) (same).

       We note in passing that while the Statute of Frauds requires a contract involving the sale or transfer of an interest of land to be in writing, OCGA § 13-5-30 (4), that written requirement does not extend to the settlement agreement pursuant to which the transfer is to be made. See, e.g., Mason v. Rabun Waste, 174 Ga. App. 462, 464 (2) (330 SE2d 400) (1985).

        See, e.g., White v. Owens, 172 Ga. App. 373, 375 (323 SE2d 167) (1984) (upholding enforceability of settlement agreement “read into the record in open court and . . . subsequently incorporated in the judgment,” and holding that when an “agreement is made in open court, there is no requirement . . . that it be in writing”); see also Sanders v. Graves, 297 Ga. App. 779, 779-80 (678 SE2d 220) (2009) (upholding enforceability of settlement agreement reached and transcribed at a deposition).

       OCGA § 13-3-2 (“The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.”).

        See, e.g., Millwood v. Art Factory, 306 Ga. App. 164, 166 (702 SE2d 7) (2010) (“The requisites of an explicit contract are a meeting of the minds of the parties, mutuality, and the clear expression of the terms of the agreement.”); Burns v. Dees, 252 Ga. App. 598, 601-02 (1) (a) (557 SE2d 32) (2001) (“A contract cannot be enforced if its terms are incomplete, vague, indefinite, or uncertain.” (citation and punctuation omitted)).

        Milton Frank Allen Publ’ns v. Ga. Ass’n of Petroleum Retailers, 219 Ga. 665, 672-73 (1) (b) (iii) (135 SE2d 330) (1964) (quoting Leffler Co. v. Dickerson, 1 Ga. App. 63 (1) (57 SE 911) (1907)); Leffler Co., 1 Ga. App. at 63 (describing this jurisprudential principle as being “so consonant with common sense, common reason, and common justice, as well as with the unbroken current of the decisions of the courts of all the states in which this question has arisen, that we adopt it without change or alteration”).

        Kitchen v. Insuramerica Corp., 296 Ga. App. 739, 744 (1) (675 SE2d 598) (2009) (quoting Fay v. Custom One Homes, LLC, 276 Ga. App. 188,190 (622 SE2d 870) (2005) (holding that a contract will only be deemed void on grounds of uncertainty when the “[ijndefiniteness in subject matter [is] so extreme as not to present anything upon which the contract may operate in a definite manner . . . .”) (emphasis supplied)); Kueffer Crane & Hoist Serv. v. Passarella, 247 Ga. App. 327, 330 (3) (543 SE2d 113) (2000) (same).

       284 Ga. App. 49, 52 (1) (643 SE2d 333) (2007) (citation omitted).

        Sanders, 297 Ga. App. at 779 (citation omitted); see also Ruskin, 284 Ga. App. at 52 (1) (“[W]e generally enforce settlement agreements unless it appears that the parties clearly failed to reach agreement on an essential contract term.”).

         Livoti v. Aycock, 263 Ga. App. 897, 901-02 (2) (590 SE2d 159) (2003) (quoting Grier v. Brogdon, 234 Ga. App. 79, 80 (2) (505 SE2d 512) (1998)).

       The Compact Oxford English Dictionary 1038 (2d ed. 1991).

       (Emphasis supplied.)

        See, e.g., Verret v. ABB Power T&D Co., 237 Ga. App. 492, 493 (1) (515 SE2d 435) (1999) (holding that when the terms of the instrument are plain and unambiguous, the court looks no further to determine the parties’ intent).

        Livoti, 263 Ga. App. at 902 (2) (holding that when an ambiguity is found in the instrument, the court must then apply the rules of contract construction to resolve it, and if the rules of construction cannot resolve the ambiguity, parol evidence may then be introduced to explain the intention of the parties); Schwartz v. Harris Waste Mgmt. Group, 237 Ga. App. 656, 660 (2) (516 SE2d 371) (1999) (same).

        Barrow County Airport Auth. v. Romanair, Inc., 260 Ga. App. 887, 889 (1) (581 SE2d 402) (2003) (quoting Parker v. Futures Unlimited, 157 Ga. App. 520, 520-21 (278 SE2d 99) (1981)); see also Griffith v. Fed. Deposit Ins. Corp., 242 Ga. 367, 368 (249 SE2d 54) (1978) (“[A] contract is not invalidated for failure to specify a time within which it is to be performed!;] [i]n such circumstances, a reasonable time will be implied!.]”); Mansell 400 Assoc. v. Entex Info. Servs., 239 Ga. App. 477, 480 (4) (519 SE2d 46) (1999) (same).

        See, e.g., Read v. GHDC, Inc., 254 Ga. 706, 706-07 (334 SE2d 165) (1985) (upholding the enforceability of a “contract for purchase and sale” that did not include a “time for performance”); Kennedy v. Droughton Trust, 277 Ga. App. 837, 840 (1) (627 SE2d 887) (2006) (same).

        Compare The Compact Oxford English Dictionary 1521 (2d ed. 1991) (defining “reasonable” as, inter alia, “!a]greeable to reason; not irrational, absurd or ridiculous . . . not going beyond the limit assigned by reason; not extravagant or excessive . . . [o]f such amount, size, number, etc., as is judged to be appropriate or suitable to the circumstances or purposes (emphasis supplied)) with id. at 1957 (defining “suitable” as, inter alia, “[t]hat is fitted for, adapted or appropriate to ... a purpose, object, occasion, or the like”).

       The Seller Defendants argued below that the settlement agreement was an unenforceable agreement to reach a future agreement. See, e.g., Hartrampf v. Citizen & So. Realty Investors, 157 Ga. App. 879, 881 (1) (278 SE2d 750) (1981) (“An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto” (citations and punctuation omitted)). We are unpersuaded. The settlement agreement announced in open court reflects that the parties reached a binding agreement as to the material terms of the settlement, which were later to be incorporated into certain written instruments (i.e., the deed to secure debt and tolling agreement] that memorialized the parties’ agreed-upon essential terms. See, e.g., Neely Dev. Corp. v. Serv. First Invs., 261 Ga. App. 253, 256-57 (1) (c) (582 SE2d 200) (2003) (upholding enforceability of an agreement requiring the execution of a restrictive covenant).

        See, e.g., Livoti, 263 Ga. App. at 901-02 (2); Verret, 237 Ga. App. at 493 (1).

        State Farm Mut. Auto. Ins. Co. v. Staton, 286 Ga. 23, 25 (685 SE2d 263) (2009) (citation and punctuation omitted).

        See, e.g., Peachtree Med. Bldg. v. Keel, 107 Ga. App. 438, 440 (1) (130 SE2d 530) (1963) (noting that “a contract may be made sufficiently certain by reference to other documents”).

        Lay Bros. v. Golden Pantry Food Stores, 273 Ga. App. 870, 872 (1) (616 SE2d 160) (2005) (footnote omitted); see also Taylor v. Calvary Baptist Temple, 279 Ga. App. 71, 71-2 (1) (630 SE2d 604) (2006) (same).

        Kreimer v. Kreimer, 274 Ga. 359, 361 (1) (552 SE2d 826) (2001) (footnote omitted); see also Lay Bros., 273 Ga. App. at 872 (1).

        See, e.g., Little v. King, 211 Ga. 872, 872 (89 SE2d 511) (1955) (holding that party could not obtain specific performance of contract where necessary party had not been served and made part of the lawsuit).

        See, e.g., Kreimer, 274 Ga. at 361 (1); Lay Bros., 273 Ga. App. at 874 (1).

       268 Ga. App. 419, 422-23 (1) (602 SE2d 192) (2004).

       228 Ga. App. 763, 764-65 (1) (492 SE2d 742) (1997).

       268 Ga. App. at 422 (1).

       Id. at 423 (1).

       228 Ga. App. at 764 (1) (punctuation omitted).

        See, e.g., Read, 254 Ga. at 706-07.

        Evans v. Fulton Nat’l Mtg. Corp., 168 Ga. App. 600, 601 (309 SE2d 884) (1983) (citation and punctuation omitted); see also Boca Petroco v. Petroleum Realty II, 285 Ga. 487, 488 (678 SE2d 330) (2009).

        See Scroggins, 250 Ga. at 433 (2).


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A10A0989.
    GOLDSMITH et al. v. PETERSON et al.
    (703 SE2d 694)
   Adams, Judge.

Robert H. and Carolyn E. Goldsmith filed suit against John R. and Yvonne Peterson on March 1, 2007, seeking reimbursement of their escrow deposit, interest and attorney fees, arising out of a Purchase and Sales Agreement signed by the parties in connection with the sale of the Petersons’ property. The Petersons filed a counterclaim seeking $93,000 in damages and attorney fees. Following a jury trial, the trial court entered a judgment in favor of the Petersons on their counterclaim in the amount of $3,000 plus $28,388.45 in attorney fees. The Goldsmiths subsequently filed a “Motion for and Brief in Support of a Judgment Notwithstanding the Verdict or in the Alternative for a New Trial.” The trial court denied the motion, and the Goldsmiths appeal.

The parties entered into the Purchase and Sales Agreement on May 23, 2006. The Agreement set a purchase price of $469,000 for the property and required the Goldsmiths to pay earnest money of $7,500. It further provided that the transaction was conditioned upon the Goldsmiths’ “ability to obtain a loan” for 90 percent of the purchase price at 6.5 percent per annum. The Agreement defined the phrase “ability to obtain a loan” to mean that the Goldsmiths are “qualified to receive the loan ... based upon the lender’s customary and standard underwriting criteria.” Under the Agreement, the Goldsmiths were expressly “obligated to close this transaction if [they have] the ability to obtain a loan with [the same terms] and/or any other loan for which [the Goldsmiths have] applied and been approved.”

The Goldsmiths took the position that they could not obtain a loan pursuant to the terms set forth in the Agreement, and because this precondition was not met, the contract was invalid, entitling them to a return of their earnest money. Nevertheless, the evidence at trial showed that within two days of the Agreement’s execution, on May 25, 2006, SunTrust Mortgage, Inc. preapproved the Goldsmiths for a loan complying with the terms of the Agreement. The preapproval letter states that the Goldsmiths had a choice of a number of different options but elected to pursue a loan structure involving two loans for 80 percent and 10 percent respectively. A SunTrust senior mortgage consultant testified that the Goldsmiths’ preapproval would have covered a 30-year fixed rate mortgage at 6.5 percent with either 10 or 20 percent down, but they chose the two-loan structure in order to avoid paying mortgage insurance, a savings of approximately $200 per month. At some point, however, the Goldsmiths decided not to purchase the property, and the transaction never closed.

1. The Goldsmiths argue that the trial court erred in submitting the Petersons’ claim for damages to the jury because their recovery was limited under the Agreement to the amount of the earnest money. The Agreement provided that in the event of a breach by the Goldsmiths, the earnest money would be paid to the Petersons by check, which if accepted and deposited by them “shall constitute liquidated damages in full settlement of all” of the Petersons’ claims. The Petersons argue, however, that they are entitled to the additional damages awarded by the jury because the Goldsmiths waived the liquidated damages provision when they brought suit for a return of the escrow, plus attorney fees. They note that the Goldsmiths took the position the Agreement was invalid and sought additional recovery over and above the escrow amount.

“It is well established that a party to a contract may waive a contractual provision for his or her benefit.” (Citation omitted.) Forsyth County v. Waterscape Svcs., 303 Ga. App. 623, 630 (2) (a) (694 SE2d 102) (2010).

A waiver may be express, or may be inferred from actions, conduct, or a course of dealing. Waiver of a contract right may result from a party’s conduct showing his election between two inconsistent rights. . . . However, all the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a waiver may exist.

(Citation omitted.) Id.

We find no evidence in this case to support a finding that the Goldsmiths intentionally relinquished their right to enforce the liquidated damage provision. Thus the trial court erred in submitting the issue of waiver to the jury. “While normally the question of waiver is a matter for the jury, where, as here, the facts and circumstances essential to the waiver issue are clearly established, waiver becomes a question of law.” (Citation and punctuation omitted.) Forsyth County, 303 Ga. App. at 630 (2) (a). Here, there was no action, conduct or course of dealing by the Goldsmiths that can be construed as a waiver. Although the Goldsmiths’ complaint asserted that the Agreement was invalid, thus entitling them to a return of the escrow and the recovery of attorney fees, that position does not amount to a waiver. The Goldsmiths simply disputed the Petersons’ right to recover such damages and sought to recover their own. They were still entitled to argue that if the Agreement were deemed valid, the Petersons would be limited to recovering liquidated damages on their counterclaim. The liquidated damage provision, by its own terms, applies only to the Petersons’ damages for a breach of contract and does not address the amount the Goldsmiths could recover for any breach.

Moreover, by seeking damages for breach of contract, the Peter-sons affirmed the Agreement and bound themselves to its terms. “Under the contract that [they] affirmed, [the Petersons] agreed to accept liquidated damages of the [escrow] in lieu of any other contract damages that were provable. This bars further recovery for the same damages, in either contract or tort.” Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 713 (2) (507 SE2d 493) (1998). Accordingly, we reverse the portion of the judgment awarding the Petersons $3,000 over and above the escrow amount.

2. The Goldsmiths next assert that the trial court erred in submitting the issue of attorney fees to the jury under any theory of recovery. The jury was charged on the issue of attorney fees under both OCGA § 13-6-11 and the abusive litigation provisions of OCGA § 51-7-81 et seq.

The Goldsmiths argue that the trial court erred in charging the jury under OCGA § 13-6-11 because the Petersons failed to properly plead and make a prayer to recover such fees in their counterclaim and further failed to give notice of their intent to pursue such fees. We find no merit to this argument. An award of attorney fees is authorized under OCGA § 13-6-11 “where a plaintiff specifically prays for attorney fees and refers either to the Code section or to the criteria set forth therein, by alleging the defendant acted in bad faith in the underlying transaction, was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense.” (Citation omitted.) Joyner v. Raymond James Financial Svcs., 268 Ga. App. 835, 839 (2) (602 SE2d 871) (2004). The Petersons’ counterclaim tracked the language of OCGA § 13-6-11 by alleging that the Goldsmiths “have acted in extreme bad faith, have been stubbornly litigious and have caused [the Petersons] to incur unnecessary trouble and expenses” and also made a specific prayer to recover their attorney fees. Thus, the issue was properly raised for trial, and the defendants reasserted their claim for fees under OCGA § 13-6-11 in their proposed pre-trial order. Accordingly, this issue was properly submitted to the jury.

The Goldsmiths further assert that the trial court erred in charging the jury on attorney fees for abusive litigation under OCGA § 51-7-81 because it was improper to seek such damages by way of a counterclaim in the original action. We agree. The law is clear that a counterclaim for abusive litigation pursuant to OCGA § 51-7-81 is premature if it is brought before the final termination of the underlying proceedings. Hagemann v. City of Marietta, 287 Ga. App. 1, 7 (1) (650 SE2d 363) (2007); State Soil &c. Comm. v. Stricklett, 252 Ga. App. 430, 438 (4) (c) (555 SE2d 800) (2001); OCGA § 51-7-84 (b) (“An action or claim under [OCGA § 51-7-80 et seq.] requires the final termination of the proceeding in which the alleged abusive litigation occurred. . . .”) Thus, the Petersons’ claim for attorney fees under OCGA § 51-7-81 was premature, and the trial court erred in charging the jury under that provision.

Although the jury’s verdict did not specify the basis for its attorney fee award of $28,388.45, the jury awarded attorney fees against the Goldsmiths and their counsel. Such an award is authorized under the language of OCGA § 51-7-81, but not under OCGA § 13-6-11. See Kirsch v. Meredith, 211 Ga. App. 823, 824 (440 SE2d 702) (1994) (plain language of OCGA § 51-7-81 demonstrates that claim for abusive litigation not confined to a party to the prior action). Accordingly, because the jury may have based its award of attorney fees on an improper theory of recovery, we reverse that portion of the judgment and remand for a new trial on the issue of attorney fees. Cf. Constr. Lender v. Sutter, 228 Ga. App. 405, 410 (3) (491 SE2d 853) (1997) (general verdict returned on improper theory of liability must be reversed); Strickland v. Howard, 214 Ga. App. 307, 310 (2) (447 SE2d 637) (1994) (same).

3. The Goldsmiths next assert that the trial court erred by admitting hearsay during the direct examination of Jeanette Holloway, a SunTrust Mortgage employee, who testified about a telephone conversation she overheard between Carolyn Goldsmith and Teresa Mitchell, another SunTrust Mortgage employee. The trial court allowed such testimony over the hearsay objection of the Goldsmiths’ counsel. Holloway testified that after SunTrust Mortgage learned that the Goldsmiths no longer intended to purchase the property, Holloway answered a telephone call from Carolyn Goldsmith who asked to speak with Mitchell. Holloway transferred the call to Mitchell, then walked into Mitchell’s office, where she overheard Mitchell tell Goldsmith that she qualified for the loan and that Mitchell could not do what Goldsmith was asking her to do because it would be illegal. Holloway testified only as to Mitchell’s portion of the conversation, which was the only portion she heard. She was not allowed to testify as to anything Mitchell later told her about Carolyn Goldsmith’s side of the conversation.

The trial court allowed the testimony on two grounds. First, the judge stated that he was not sure that the evidence was even hearsay because it derived its value solely from the credibility of Holloway — she testified only as to what she heard — and did not rest mainly on the veracity or competency of other persons. See OCGA § 24-3-1 (defining hearsay). Second, in the event that it was hearsay, he admitted it out of “necessity” because Mitchell was unavailable to testify. He found that no comparable evidence was available and the statement showed circumstantial guarantees of trustworthiness.

“A trial court’s decision to admit evidence as an exception to the hearsay rule will not be disturbed absent an abuse of discretion.” Ishak v. First Flag Bank, 283 Ga. App. 517, 519 (642 SE2d 143) (2007). Hearsay may be admitted under the necessity exception if it meets the two prerequisites of necessity and trustworthiness. See OCGA § 24-3-1 (b); McCoy v. State, 273 Ga. 568 (4) (544 SE2d 709) (2001). “If the declarant is alive and her testimony is compellable, proof of unavailability demands a showing that she could not be located after reasonable efforts to find her and secure her presence.” (Footnote omitted.) Battle v. State, 244 Ga. App. 771, 774 (536 SE2d 761) (2000). “It is within the sound discretion of the trial court to determine the unavailability of a witness and a party’s diligence in searching for that witness.” Id. “Whether testimony was accompanied by particularized guarantees of trustworthiness is a matter for the trial court’s discretion, and its decision will be upheld on appeal absent an abuse of that discretion.” (Footnote omitted.) Smith v. State, 284 Ga. 304, 308 (3) (667 SE2d 65) (2008).

Here the record demonstrates that Mitchell failed to respond to the Petersons’ subpoena, despite their attorney’s “desperate” attempts to contact her and ensure that she would appear at trial. And, in fact, the trial court later held a hearing on the matter and cited Mitchell for contempt for failing to appear. The trial court also found that the evidence had circumstantial degrees of trustworthiness, but did not specify the basis for that determination.

But pretermitting whether the evidence was admissible out of necessity, we find that the trial court properly overruled the hearsay objection because the testimony was admissible under the res gestae exception to the hearsay rule. See Patel v. State, 278 Ga. 403, 404-405 (2) (603 SE2d 237) (2004).

To fall within the res gestae, a statement must be contemporaneous with the main fact, but need not be precisely concurrent in point of time; it is sufficient if such declarations spring out of the transaction, if they elucidate it, if voluntary and if made at such time as reasonably to exclude the idea of design.

(Citation and punctuation omitted.) Davis v. Reid, 272 Ga. App. 312, 317 (2) (612 SE2d 112) (2005). The telephone conversation was a communication concerning the loan at issue in this case between the parties to that loan. Holloway testified only as to the portion of the conversation she directly overheard. Moreover, Holloway testified from her own knowledge that the Goldsmiths had been approved for the loan, noting that “it was a very clean loan.” Under these circumstances, Holloway’s testimony met the criteria of the res gestae exception. And the mere fact that Mitchell’s side of the conversation reflected her subjective opinion of something Carolyn Goldsmith might have said, “as opposed to an objective, observable fact, is of no consequence. As long as it is part of the res gestae, a statement of opinion is admissible.” (Citation omitted.) Patel, 278 Ga. at 405 (2).

Decided November 23, 2010.

Begner & Begner, Alan I. Begner, Cory G. Begner, for appellants.

Emory A. Schwall, for appellees.

4. The Goldsmiths further argue that the trial court erred in admitting new evidence during jury deliberations. A copy of the Agreement was admitted into evidence at trial and that copy, along with other trial exhibits, were submitted to the jury for its consideration. During the course of their deliberations, the jury asked for “access to the Purchase and Sales Agreement with original signatures.” Over the Goldsmiths’ objection, the trial court allowed the original Agreement, which was not tendered at trial, to be submitted to the jury with limiting instructions that the jury disregard any differences that may exist in the two documents and that in the event of any differences, the jurors rely upon the copy admitted into evidence, not the original Agreement. The Goldsmiths have not pointed to any differences between the original and the photocopy of the Agreement. Therefore, even if the trial court committed error in allowing the jury to see the original Agreement, the Goldsmiths failed to show how the purported error harmed them. Thus, reversal is not warranted on this ground. See Gilmer v. State, 234 Ga. App. 309, 311 (4) (506 SE2d 452) (1998).

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

       We find nothing in the record below to support the Goldsmiths’ argument that the issue of attorney fees under OCGA § 9-15-14 was ever submitted to the jury.

       Indeed, the Petersons acknowledged below that their counterclaim on this ground was premature but argued that the Goldsmiths had waived the issue. We find that the Goldsmiths’ failure to object does not result in a waiver, as no claim for abusive litigation even existed until the final termination of the underlying action. Cf. State Farm &c. Ins. Co. v. Wright, 245 Ga. App. 493 (1), (3) (538 SE2d 147) (2000) (insurer did not waive subrogation by failing to assert cross-claim until after jury verdict where claim did not ripen until damages awarded). In any event, the Petersons voluntarily abandoned the portion of the judgment awarding attorney fees against the Goldsmiths’ counsel personally. The trial court subsequently amended its judgment to delete any award of damages and attorney fees against the Goldsmiths’ counsel.

       Given this holding, we need not address the Goldsmiths’ enumeration arguing that the trial court erred in failing to require the Petersons to segregate their recoverable attorney fees from those that were not recoverable. Moreover, their argument that the trial court erred in allowing an award of attorney fees against their counsel is moot since, as stated in footnote 2, the trial court vacated that portion of the verdict.

       The Goldsmiths later moved for a mistrial on the same ground, but the trial court denied the motion.


author: Doyle, Judge.

text:
    A10A1047, A10A1048.
    JOHNSON v. LEIBEL et al.; and vice versa.
    (703 SE2d 702)
   Doyle, Judge.

Mary Johnson, M.D., sued Steven K. Leibel and his law firm, Steven K. Leibel & Associates, EC. (collectively “Leibel”), alleging that he committed legal malpractice when he represented her in a lawsuit against Scottish Rite Hospital (“SRH”)- After a Fulton County jury awarded Johnson $2 million, Leibel filed a motion for judgment notwithstanding the verdict (“JNOV”) and a motion for new trial based on juror misconduct. The trial court granted Leibel’s motion for new trial and denied his motion for JNOV We granted Johnson’s application for interlocutory appeal challenging the grant of Leibel’s motion for new trial in Case No. A10A1047, and Leibel cross-appealed the denial of his motion for JNOV in Case No. A10A1048. For reasons that follow, we reverse the grant of the motion for new trial in Case No. A10A1047 and affirm the denial of the motion for JNOV in Case No. A10A1048.

Construed in favor of the verdict, the record shows that Johnson, a pediatric neurosurgeon, sued SRH in the Northern District of Georgia in 1996, seeking damages for age and gender discrimination. Johnson was represented by Leibel. The magistrate judge dismissed Johnson’s state law claims and granted summary judgment to SRH on the remaining claims, concluding that Johnson failed to establish that SRH’s “actions were discriminatorily motivated or that the proffered justifications were pretextual.” The district court adopted the magistrate judge’s findings and granted summary judgment to SRH. Leibel filed a motion for reconsideration on Johnson’s behalf, which the district court denied. Leibel then filed a notice of appeal, and the Eleventh Circuit Court of Appeals dismissed the appeal as untimely.

Johnson filed the instant legal malpractice action against Leibel, alleging that he failed to introduce available evidence in opposition to SRH’s summary judgment motion, which would have created issues of fact, and that he failed to file a timely notice of appeal of the judgment. After the jury returned a verdict in favor of Johnson, Leibel filed a motion for JNOY and he also filed a motion for new trial based on a juror’s failure to disclose during voir dire that he had been sued by Leibel in 1992. The trial court granted Leibel’s motion for new trial and denied his motion for JNOY and these appeals followed.

Case No. A10A1047

1. Johnson argues that the trial court erred by granting Leibel’s motion for new trial based on juror misconduct. We agree.

Arthur Letchas, the mayor of the City of Alpharetta, was one of the jurors. During voir dire, Letchas acknowledged that he previously had been involved in a number of lawsuits in connection with his various roles as an elected official for Alpharetta, but stated that nothing about those cases “would influence [his] ability to be fair in this case.” Neither party asked Letchas any additional questions about those lawsuits.

On November 3, 2008, more than five weeks after the trial, Leibel filed a “Motion for New Trial for Juror Misconduct,” stating that

it has been discovered that the foreperson of the jury, Arthur Letchas, had been personally sued by the Defendants, including the taking of his deposition by Defendant Leibel for purposes of prosecuting Mr. Letchas. This information was not provided by Mr. Letchas in response to direct questioning during voir dire.

On January 20, 2009, Leibel filed an affidavit, which stated that he did not recognize any of the jurors during voir dire. Leibel was not present for the jury’s verdict, but he later learned that Letchas “left the courtroom quickly” after the trial court excused the jurors, and Leibel “thought it was odd that [Letchas] was apparently unwilling to talk with the lawyers who tried the case, given that he was a politician.” After researching Letchas on the Alpharetta website, Leibel then recalled that Leibel had sued the City of Alpharetta on behalf of a client more than 16 years previously. After further investigation, Leibel learned that he individually named Letchas as a defendant in the previous case (along with eight other city officials), and that he had deposed Letchas. The defendants ultimately obtained summary judgment in the case. In his affidavit, Leibel stated:

I did not remember Arthur Letchas at all until my research after the verdict. If I had remembered him and particularly the adversarial context in which we had had prior contact, or if he had disclosed the relationship in response to the questions on voir dire, I would have asked my counsel to challenge [Letchas] for cause and to strike him from the jury panel.

In an affidavit prepared in response to the motion for new trial, Letchas stated that he did not recall that he had been a defendant in the lawsuit filed by Leibel until after Johnson’s attorney contacted him and so advised him, nor did Letchas independently recall that he was defended in that lawsuit by a lawyer from the same firm that represented Leibel. Letchas, who was involved in 35 lawsuits in his capacity as councilman and mayor of Alpharetta, averred that nothing about his previous contact with Leibel affected his ability to be fair and impartial, and Letchas “was in no way influenced by any past contact with Mr. Leibel or with [Leibel’s attorney’s] law firm.”

The trial court granted Leibel’s motion for new trial based on juror misconduct without explanation. Johnson challenges the trial court’s ruling, arguing that (1) Leibel waived any argument regarding Letchas’s position on the jury by failing to exercise due diligence and to question Letchas further; and (2) Leibel failed to show that Letchas gave an untruthful answer during voir dire or that a correct response would have provided a valid challenge for cause.

Pretermitting whether Leibel waived this enumeration by his conduct at trial, we agree that Leibel failed to show bias or prejudice resulting from Letchas’s failure to disclose that Leibel had represented the plaintiff in a lawsuit against Letchas 16 years before trial.

To invalidate the result of a . . . trial because of a juror’s mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination. We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.

The Supreme Court of Georgia has held that “motions for new trial based upon alleged juror bias involve determinations best left to the sound discretion of the trial judge.”

Here, when asked whether he had ever been involved in a lawsuit, Letchas responded that “there are several entities that have sued the city at times,” clarifying that they sued him in his official capacity and that “[njothing about [the suits] would influence [his] ability to be fair in this case.” He also responded to questions regarding previous employment. When the potential jurors were asked whether they knew or had heard of Leibel or his law firm, Letchas apparently remained silent. But given Letchas’s affidavit testimony that he had no recollection of Leibel or his firm, combined with the fact that Leibel similarly failed to recognize Letchas, there is nothing in the record to support Leibel’s assertion that Letchas failed to answer honestly. And, after he was reminded that Leibel had sued and deposed him, Letchas stated in his affidavit that nothing about his previous contact with Leibel affected his ability to be fair and impartial. Thus, Leibel has also failed to demonstrate that Letchas’s disclosure of his previous dealings with Leibel would have supported a challenge for cause. Based on Leibel’s failure to make the requisite showing of bias or prejudice on the part of Letchas, we conclude that the trial court abused its discretion by granting Leibel’s motion for new trial.

Case No. A10A1048

2. Leibel argues that the trial court erred by admitting certain portions of the testimony of Peter Spanos, Johnson’s expert, arguing that it invaded the jury’s role. “We review this ruling under an abuse of discretion standard.”

To prevail in a legal malpractice action, a plaintiff must show that the attorney [s]he employed was negligent and that this negligence was the proximate cause of the claimed harm. The plaintiff must show that but for the attorney’s negligence in the underlying case, the plaintiff would have prevailed.

During direct examination, Spanos testified that in his opinion, Leibel violated the standard of care by failing to present specific evidence in opposition to SRH’s motion for summary judgment. Plaintiffs counsel then asked Spanos whether he thought that the available evidence, including the evidence that Leibel failed to produce, established that Johnson had a prima facie case of discrimination and that SRH’s motives for its actions were pretextual, cautioning Spanos that “I am not asking you to, in any way, suggest to this jury what it should do in this case, but rather my questions go to your opinion as to what ought to have happened in the underlying case based on your education, training[,] and experience.” After the trial court overruled Leibel’s objection to the testimony, Spanos testified that there was “powerful evidence of pretext,” that Johnson made a prima facie showing of age and gender discrimination, and that the evidence of pretext “tipped the balance” in her favor. Leibel argues that this testimony was inadmissible because it improperly usurped the jury’s role.

Leibel cites Sotomayor v. TAMA I, LLC, for the proposition that

[t]he scope of what is admissible as expert opinion testimony is not unlimited. It is the established rule in Georgia, that where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. A party may not bolster his case as to the ultimate issue with expert testimony when the jury could reach the same conclusion independently of the opinion of others.

Although this quote is clearly a correct statement of the law, Leibel’s reliance on the case is misplaced. As we stated in Sotomayor, the prohibition against allowing a party to bolster his case with expert testimony as to the ultimate issue is limited to those circumstances in which “the jury could reach the same conclusion independently of the opinion of others.” The prohibition does not extend to those cases in which a jury requires expert testimony as to the issue of causation. For example, we require expert testimony to provide proximate cause in medical malpractice cases. In the same vein, expert testimony is admissible to prove proximate cause in those legal malpractice cases in which a lay person could not competently determine whether or not the negligence of the attorney proximately caused the plaintiffs damages, i.e., whether or not the plaintiff would have prevailed in the underlying action. As Johnson argues, this holding comports with the pattern jury instruction in legal malpractice cases entitled, “Skill Required of Attorney,” which provides in pertinent part that “A client suing his/her attorney in a case not only must prove by expert legal testimony that the claim was valid and would have resulted in a judgment in the client’s favor, but also that the judgment would have been collectible in some amount. . . ,” Then, as Leibel did in this case, the defendant may present opposing expert legal testimony, leaving the jury to evaluate the credibility of the experts and to weigh their testimony accordingly. In this case, given the legal complexities associated with Johnson’s discrimination claims against SRH in the underlying action, we conclude that the trial court did not abuse its discretion by admitting the testimony of Johnson’s expert.

3. Leibel further contends that the trial court erred by denying his motion for JNOV because Johnson failed to prove that an alleged violation of the standard of care proximately caused her damages.

(a) Summary judgment. At trial, Johnson’s expert, Spanos, opined that Leibel failed to obtain affidavits or depositions from four neurosurgeons in defense of SRH’s motion for summary judgment, and those witnesses’ testimony given in subsequent depositions established evidence of pretext on the part of SRH. On appeal, Leibel argues that Spanos was mistaken in believing that the testimony of the neurosurgeons did not appear in the record before the district court, pointing out that Spanos conceded at trial that the deposition transcripts of Drs. Webster, Simon, Morrissey, and Johnson were in fact included in the district court record. But as Johnson points out in her appellate brief, Spanos specifically criticized Leibel’s failure to include the testimony of Drs. Cheek, McLone, and Reigel.

Without mentioning Drs. Cheek, McLone, or Reigel by name, Leibel asserts on appeal that “the evidence by the three neurosurgeons who reviewed a handful of Dr. Johnson’s charts . . . was in the record.” Even if we were to assume that Leibel was referring to Cheek, McLone, and Reigel, Leibel does not provide a citation to the record to support this assertion. Leibel also maintains that “[t]he brief filed by Leibel on behalf of Johnson in the district court contained the relevant information,” providing a citation to the record. The record citation refers to a single page of Leibel’s brief to the district court, which page states that three pediatric neurosurgeons reviewed Dr. Johnson’s charts in 1988 and gave favorable reviews, citing to an exhibit to the deposition of “Webster.” At no point in his appellate brief does Leibel provide a citation to the appellate record for the deposition of Webster. Based upon our reading of Johnson’s appellate response brief, it appears that the exhibit to Webster’s deposition is an uncertified letter written by Drs. Epstein, McLone, and Cheek in support of Johnson. But because Johnson also fails to provide an appellate record citation for any such letter, we cannot make a determination regarding its admissibility, nor can we analyze its contents.

Even if the letter did appear in the record and was admissible, however, it would not require reversal in this case.

A motion pursuant to OCGA § 9-11-50 (b) for [JNOV] may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment (notwithstanding the verdict) should not be awarded. In considering the motion, the trial court must view the evidence in the light most favorable to the party who secured the jury verdict and who opposed the motion for judgment notwithstanding the verdict. Likewise, on appeal from a trial court’s rulings on [a] motion[ ] for [JNOV], we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; . . . judgments notwithstanding the verdict are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

At best, the letter from the physicians would create a conflict in the evidence or undermine the credibility of Johnson’s expert, neither of which provides a proper basis for reversing the denial of a JNOV Accordingly, this enumeration is without merit.

(b) Motion for reconsideration and notice of appeal. Leibel also argues that because the trial court ruled that any appeal of the district court’s ruling would have been unsuccessful, he was entitled to a JNOV as to Johnson’s claim based upon his failure to file a timely Rule 59 (e) tolling motion for reconsideration or appeal.

We have been unable to locate the verdict form in the record. However, the trial transcript indicates that the verdict form, which neither party objected to, was general, with no indication as to which claim formed the basis of the award. Because the verdict form failed to specify which of the claims formed the basis of the jury’s award, it is possible to construe the verdict as an award based solely on Johnson’s claim that Leibel failed to sufficiently respond to SRH’s motion for summary judgment. " ‘Presumptions favor the validity of verdicts and a construction, if possible, will be given which will uphold them.’ ” It follows that the trial court did not err by denying Leibel’s motion for JNOV on this ground.

4. Next, Leibel contends that the trial court erred by not giving his requested charge on judgmental immunity. The proposed charge read: “There can be no liability for acts and omissions by an attorney in the conduct of litigation which are based on an honest exercise of professional judgment.” We find no error.

It is well established that jury instructions must be read and considered as a whole in determining whether the charge contained error. Moreover, a trial court does not err in refusing to give a requested charge that is not legally accurate and adjusted to the evidence. A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased so as to have the tendency to confuse and mislead the jury or to becloud the issues in the case.

Pretermitting whether Leibel’s requested charge is a complete statement of the law, he does not provide a citation to the record showing that he testified or argued to the jury that his decisions were strategic or based on an honest exercise of professional judgment. Thus, Leibel has failed to demonstrate that his requested charge was tailored to the evidence. Further, we have reviewed the trial court’s charge (which included the pattern jury charges on legal malpractice) in its entirety, and we conclude that the trial court fully and accurately instructed the jury on the issues to be decided. Accordingly, the trial court did not err by refusing to give the requested charge.

5. Leibel further contends that the trial court erred by permitting Johnson to submit evidence and argument that Leibel missed the appellate deadline in the underlying case, arguing that it was prejudicial and irrelevant. Again, we find no basis for reversal.

In the context of a legal malpractice case in which the negligence alleged is the failure of an attorney to file an appeal, proximate cause may be established by showing that the appellate court would have reversed and that, upon remand to the lower court, the client would have obtained a more favorable result.

“The question of whether an appeal would have been successful is a question of law, exclusively within the province of judges.” Applying this principle, the trial court concluded as a matter of law that Johnson’s appeal would not have been successful, and the court so instructed the jury, charging the jurors that

the issue of whether Plaintiffs appeal to the [Eleventh] Circuit Court of Appeals wouldn’t have succeeded is a question of law that has been decided by the court. This court has decided that Plaintiffs appeal to the 11th Circuit Court of Appeals would not have succeeded if the appeals court had considered the merits based on the state of the record before the court at that time.

Leibel argues that because the trial court had already decided that Johnson’s appeal would not have succeeded, the testimony of multiple witnesses and Johnson’s repeated argument about the missed appellate deadline were irrelevant and “highly prejudicial.”

“Whether to admit evidence objected to on the ground of relevancy is within the sound discretion of the trial court, whose decision wall not be disturbed on appeal absent a clear abuse of discretion.” “Evidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.” Here, considering Johnson’s claims and Leibel’s defense that his actions did not fall below the standard of care, we cannot conclude that the evidence regarding the missed appellate deadline was irrelevant. Accordingly, we find no abuse of discretion in the trial court’s admission of evidence that Leibel failed to file a timely appeal of the summary judgment motion.

6. Finally, Leibel argues that the trial court erred by excluding evidence about a medical malpractice action brought against Johnson after her medical privileges at SRH were suspended. At the outset, we note that Leibel has failed to support this enumeration with citation of authority, in violation of our rules, and therefore, this enumeration may be deemed abandoned.

Notwithstanding Leibel’s abandonment of this argument, we find no abuse of discretion. As we stated in Division 5, supra, the decision as to whether to exclude evidence on relevancy grounds lies within the sound discretion of the trial court, and we will not reverse a decision to exclude evidence absent a clear abuse of discretion. Here, the trial court permitted Leibel to introduce the testimony of the woman whose son Johnson treated, including her dissatisfaction wdth Johnson’s treatment. The trial court excluded, however, any evidence from the mother or from her attorney regarding the resulting medical malpractice case she filed against Johnson. Under these circumstances, we find no abuse of discretion in the exclusion of evidence that the mother filed a medical malpractice action against Johnson.

Decided November 23, 2010

Bird, Loechl, Brittain & McCants, Wendell R. Bird, Richard L. Brittain, Jones, Jensen & Harris, Jenny E. Jensen, Richard E. Harris, for appellant.

Hawkins, Parnell, Thackston & Young, Michael J. Goldman, Christine L. Mast, Joseph H. Wieseman, Balch & Bingham, Michael J. Bowers, David J. Marmins, for appellees.

Judgment reversed in Case No. A10A1047. Judgment affirmed in Case No. Al 0A1048.

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

       The verdict was increased to a $2,757,378.85 judgment based on Johnson’s $999,999 pretrial unliquidated damages demand pursuant to OCGA § 51-12-14 (a).

       See Gibson v. Talley, 162 Ga. App. 303, 305 (2) (291 SE2d 72) (1982).

       Johnson’s claims included allegations that (1) she had to undergo repeated reviews by SRH; (2) SRH diverted patients from her to male surgeons; (3) SRH appointed a younger, male competitor to be chief of neurosurgery, even though she was board-certified and had more experience; (4) she was intentionally excluded from SRH clinics, which were a vital source of patient referrals; (5) she had to follow onerous rules that applied only to her; (6) her admissions were monitored, and male doctors proctored her surgeries; and (7) she had to constantly defend her work, despite “glowing recommendations” during frequent reviews by SRH.

       Leibel filed a motion for reconsideration on March 18, 1999, 15 days after the March 3, 1999 judgment. Former Rule 59 (e) of the Federal Rules of Civil Procedure required that motions for reconsideration be filed within ten days of the judgment in order to toll the time to appeal a final judgment.

       The notice of appeal was filed on May 5, 1999.

       Letchas was represented in the lawsuit by an attorney from the Drew, Eckl & Farnham law firm. A separate lawyer from Drew, Eckl & Farnham represented Leibel in the instant case.

       According to the deposition transcript, which was included in the appellate record, Letchas’s 1992 deposition lasted one hour.

       (Punctuation omitted; emphasis supplied.) Isaacs v. State, 259 Ga. 717, 740-741 (44) (e) (386 SE2d 316) (1989), quoting McDonough Power Equip, v. Greenwood, 464 U. S. 548, 555-556 (104 SC 845, 78 LE2d 663) (1984). See also Gainesville Radiology Group v. Hummel, 263 Ga. 91, 94 (428 SE2d 786) (1993) (holding that “new trials will not be granted unless the movant can demonstrate that: a juror failed to answer or to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause”) (punctuation omitted).

        Gainesville Radiology Group, 263 Ga. at 94, n. 3.

       See Isaacs, 259 Ga. at 740 (44) (e) (juror was not dishonest in failing to disclose that she was molested as a child on her juror questionnaire because “she had no real memories of it”; another juror was not dishonest in failing to disclose that two of his friends were killed by a drunk driver because the juror explained that “he did not think about it”).

       See Gainesville Radiology Group, 263 Ga. at 93-94 (appellant failed to demonstrate bias or prejudice based on juror’s failure to respond to a voir dire question because there was no showing that a truthful response would have provided a valid basis for a challenge for cause); Isaacs, 259 Ga. at 741 (44) (e) (motion for new trial properly denied because “in view of [the jurors’] overall testimony, including their belief that the incidents [that they failed to disclose] did not affect their ability to be fair and impartial jurors, [neither juror] would have been excludable for cause if the information had been disclosed before trial”); McCann v. Kelley, 209 Ga. App. 179, 181 (433 SE2d 130) (1993) (appellant failed to make the requisite showing of bias or prejudice based on a juror’s failure to respond that he was opposed to lawsuits because the juror stated in his affidavit that “he had no bias against any individual who might choose to bring a lawsuit,” and there was no evidence that the juror displayed bias during his jury service).

        Blackwell v. Potts, 266 Ga. App. 702, 705 (1) (598 SE2d 1) (2004).

       (Citation and punctuation omitted). Id., citing Ross v. Edwards, 253 Ga. App. 773 (1) (560 SE2d 343) (2002).

       Spanos also opined that Leibel breached the standard of care by failing to timely file a Rule 59 (e) motion for reconsideration of the federal trial court’s order and by filing an untimely notice of appeal.

       274 Ga. App. 323 (617 SE2d 606) (2005) (physical precedent only).

       (Punctuation omitted; emphasis supplied.) Id. at 326 (1).

       (Punctuation omitted.) Id.

         See Zwiren v. Thompson, 276 Ga. 498, 500-501 (578 SE2d 862) (2003) (“In order to establish proximate cause by a preponderance of the evidence in a medical malpractice action, the plaintiff must use expert testimony because the question of whether the alleged professional negligence caused the plaintiffs injury is generally one for specialized expert knowledge beyond the ken of the average layperson. Using the specialized knowledge and training of his field, the expert’s role is to present to the jury a realistic assessment of the likelihood that the defendant’s alleged negligence caused the plaintiffs injury.”) (citations omitted).

       See Ross, 253 Ga. App. at 774 (1) (in a legal malpractice case, an attorney could give an expert legal opinion that, if a particular expert had testified in the underlying case, “it would have provided the evidence necessary for the jury to render a different verdict”). See, e.g., Meyer v. Mulligan, 889 P2d 509, 516 (III) (C) (Wyo. 1995) (“In the vast majority of legal malpractice actions in which expert testimony is required, the plaintiff must establish through expert testimony not only the applicable standard of care and the breach of that standard, but also that the alleged breach of the standard of care was the proximate cause of his injury. The reasoning for requiring expert evidence to prove the standard of care is because lay people are not competent to pass judgment on legal questions.”) (citations, punctuation and emphasis omitted).

       (Emphasis supplied.) Suggested Pattern Jury Instructions, Vol. I: Civil Cases, § 62.400 (citing Riddle v. Driebe, 153 Ga. App. 276 (265 SE2d 92) (1980)).

       (Emphasis omitted.)

       As we “have repeatedly stated!, it] is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Punctuation omitted.) Helms v. Franklin Builders, Inc., 305 Ga. App. 863 (700 SE2d 609) (2010). Nevertheless, we have culled through the 29-volume record and located a copy of the 240-page compressed transcript of the deposition of Dorothy Rebecca Webster; there are no exhibits attached thereto.

       (Citation and punctuation omitted.) Fertility Technology Resources v. Lifetek Medical, 282 Ga. App. 148, 149 (637 SE2d 844) (2006).

       See id.

       The trial court instructed the jury that the form of their verdict was either: “We, the jury, find for the plaintiff in the amount of blank dollars,” or “We, the jury, find for the defendant.”

        Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 164 (1) (e) (473 SE2d 256) (1996).

       See Esprit Log &c. Homes v. Wilcox, 302 Ga. App. 550, 554-555 (3) (691 SE2d 344) (2010); Southeastern Security, 222 Ga. App. at 164 (1) (e).

       (Punctuation and footnotes omitted; emphasis supplied.) Wadkins v. Smallwood, 243 Ga. App. 134, 139 (5) (530 SE2d 498) (2000).

       In her response brief, Johnson asserts that there was no evidentiary basis in the record for a charge on judgmental immunity. Leibel filed a reply brief, which addressed several of his enumerations, but he did not contest or even address Johnson’s assertion regarding the lack of evidence to support the requested charge.

       See id. at 141 (5) (d).

       See Suggested Pattern Jury Instructions, Vol. I: Civil Cases, § 62.400.

       See Wadkins, 243 Ga. App. at 140 (5) (a) (“[E]ven if the requested charge is considered appropriate, failure to give it in the exact language requested is not reversible error because the trial court accurately and fully charged the relevant law.”).

       (Punctuation omitted.) Kidd v. Ga. Assn. of Educators, 263 Ga. App. 171, 174 (587 SE2d 289) (2003).

       (Punctuation omitted.) Dow Chemical Co. v. Ogletree, Deakins, Nash, Smoak & Stewart, 237 Ga. App. 27, 30 (2) (514 SE2d 836) (1999).

       We note that the parties do not object on appeal to the trial court’s conclusion that the appeal would have been unsuccessful, nor do they object to the trial court’s instruction to the jury on this issue.

        Moxley v. Moxley, 281 Ga. 326 (2) (638 SE2d 284) (2006).

       (Punctuation omitted.) Hudson v. State, 234 Ga. App. 895, 901 (3) (b) (iii) (508 SE2d 682) (1998).

       See id.

       See Court of Appeals Rule 25 (a) (3) & (c) (2); Sirdah v. North Springs Assoc., 304 Ga. App. 348, 351-352 (2) (696 SE2d 391) (2010).

       See Moxley, 281 Ga. at 326 (2).

       We note that it is not clear from either Leibel’s brief, nor the portions of the record to which he refers in support of this motion, whether the malpractice case was resolved and, if so, which party prevailed.

       See Tucker Nursing Center v. Mosby, 303 Ga. App. 80, 86 (4) (692 SE2d 727) (2010) (affirming the exclusion of evidence that the trial court concluded was irrelevant and potentially confusing to the jury); Sellers v. Burrowes, 302 Ga. App. 667, 672 (2) (691 SE2d 607) (2010) (“We give trial courts wide latitude to determine whether to admit or exclude evidence because the answers are not always clear-cut and the trial court is in the best position to make that determination.”).


text:
    A10A1317.
    DOCTORS HOSPITAL SURGERY CENTER, L.P. v. WEBB et al.
    (704 SE2d 185)
   Doyle, Judge.

Doctors Hospital Surgery Center, L.E, d/b/a Evans Surgery Center (the “Hospital”) appeals from the certification of a class action filed by Charlie and Dora Webb. The Hospital contends that the trial court abused its discretion by certifying the class action because the claims brought by the Webbs do not satisfy the statutory prerequisites authorizing them to sue as representative parties. For the reasons that follow, we agree and reverse the trial court’s certification order.

The Webbs’ complaint alleged that in January 2009, Charlie Webb had a colonoscopy performed with an endoscope at the Hospital. In February 2009, the Hospital discovered that the endoscope equipment had not been sterilized in accordance with the manufacturer’s specifications from September 10, 2007, to February 9, 2009. Also in February 2009, the Hospital sent letters to the approximately 1,300 potentially affected patients seen during that time period, including Charlie Webb. The letter informed patients of the improper sterilization protocol and explained that the risk of infection was “near zero” according to “leading authorities in infectious diseases,” and the Hospital offered free testing at an independent lab (any LabCorp location) to discover certain infectious diseases. Follow-up testing was apparently later offered as patients received their initial results. Charlie was tested twice and received negative results.

In April 2009, the Webbs sued the Hospital, later moving to represent the class of patients who received endoscopic procedures during the affected time period. The complaint enumerated claims for breach of contract, rescission, and negligence, seeking damages for the following types of losses: money paid for the procedures, compensation for any contracted diseases, continued medical monitoring at the Hospital’s expense, loss of consortium, anxiety, worry, emotional distress, punitive damages, litigation costs, and attorney fees. Following limited discovery, briefing, and a hearing, the trial court entered an order prepared by the Webbs granting their motion to certify the class action with respect to liability and the availability of punitive damages, reserving individual damages for separate determination if liability is established. The Hospital now appeals.

The Webbs have the burden of establishing their right to class certification in the trial court, and we review the trial court’s decision in certifying a class action for abuse of discretion.

The statute authorizing class actions is OCGA § 9-11-23, which provides as follows:

(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) The class is so numerous that joinder of all members is impracticable; (2) There are questions of law or fact common to the class; (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) The representative parties will fairly and adequately protect the interests of the class.
(b) An action may be maintained as a class action if the prerequisites of subsection (a) of this Code section are satisfied, and, in addition: ... (2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) The interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) The difficulties likely to be encountered in the management of a class action.

Thus, “[t]o obtain class action certification, the named individuals are required to satisfy all four prerequisites of OCGA § 9-11-23 (a), [and] at least one of the requirements set forth in . . . OCGA § 9-11-23 (b).” Certification is improper if “a plaintiff fails to establish even one of the required factors listed in OCGA § 9-11-23 (a) and (b).” “In determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of [the statute] have been met.” This involves an analysis of “considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.”

The trial court’s order certified the Webbs’ case under two theories. The first, under OCGA § 9-11-23 (b) (2), was that the Webbs sought injunctive relief in the form of continued medical monitoring for patients and spouses, which the Hospital allegedly declined to provide. The second, under OCGA § 9-11-23 (b) (3), was that the Webbs sought damages for contractual and negligence claims that presented common issues predominating over individual questions.

1. Certification under OCGA § 9-11-23 (b) (2) whether class-wide injunctive relief was appropriate based on the Hospital’s refusal to act on grounds generally applicable to the class. The trial court ruled that the medical monitoring sought by the Webbs authorized certification under OCGA § 9-11-23 (b) (2). The Hospital argues that the claim for continued medical monitoring is moot in light of the fact that the incubation periods for any infectious diseases passed many months ago. To the extent that this claim seeks monitoring that was never offered by the Hospital, e.g., of spouses, the claim is not moot because it seeks a purported remedy not yet obtained.

Nevertheless, “certification under [OCGA § 9-11-23] (b) (2) is inappropriate if the predominate relief sought in the action is monetary damages. Monetary relief predominates in the action unless it is incidental to requested injunctive or declaratory relief.” We conclude that the trial court abused its discretion in granting certification based on the claim for medical monitoring because the recovery of monetary damages is at the core of this dispute. In addition to medical monitoring, the Webbs’ complaint seeks payment for the following types of losses: money paid for the procedures, compensation for any contracted diseases, loss of consortium, anxiety, worry, emotional distress, and punitive damages. Indeed, the trial court’s order bifurcating the liability and damages phases, trying damages separately to a jury if necessary, demonstrates that the damages claims in the complaint overwhelm the injunctive relief sought and are not merely incidental thereto. Therefore, the trial court erred by certifying the action under OCGA § 9-11-23 (b) (2).

2. Certification under OCGA § 9-11-23 (b) (3) whether common questions predominate over individual questions. The Webbs’ complaint enumerated three claims (breach of contract, rescission, and negligence) and, as noted above, sought damages including money paid for the procedures, compensation for any contracted diseases, loss of consortium, anxiety, worry, emotional distress, punitive damages, litigation costs, and attorney fees. Applying the requirements of OCGA § 9-11-23 in the context of these claims, it becomes apparent that the claims for damages fall into two categories: (1) breach of contract and rescission, which are premised on money paid for the allegedly improper procedure itself, and (2) the negligence claim, which encompasses various other harms flowing from the allegedly improper procedures (such as loss of consortium, anxiety, worry, and emotional distress).

Breach of contract and rescission are somewhat susceptible to class action treatment because the Webbs are typical members of the class for purposes of questions such as payment for an allegedly flawed service, and the liability for breach of contract and rescission can readily be proven based on general contractual concepts applicable across the class. The negligence claim, however, is less susceptible to class action treatment because that claim, as pleaded by the Webbs, includes highly personalized injuries including anxiety, emotional distress, and loss of consortium.

In the present context, the particularity of the negligence claim is important because if “the issue of liability vel non turns upon highly individualized facts, the [plaintiff] cannot meet the predominance requirement of [OCGA § 9-11-23] (b) (3).” The qualitative analysis necessary to show liability for injuries such as loss of consortium, anxiety, and emotional distress demonstrates that common questions vital to proving causation must be answered on a highly individualized basis.

The trial court’s order attempts to address this problem by bifurcating the trial into a liability phase and a damages phase. But this approach ignores the fact that, aside from proving the amount of damages, the essential elements of a negligence claim include “a reasonable close causal connection between the conduct and the resulting injury. . . ,” Each person has different experiences with stress and anxiety, and any injury to the person or spousal relationship (if a class member is married) will necessarily be based on highly individualized factors. Thus, “[t]o recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the injury.”

In the present context, proving causation for claims based on injuries such as anxiety, loss of consortium, and emotional distress is inherently specific to the individuals affected. For example, Charlie Webb deposed that he suffers from post traumatic stress disorder that pre-existed his treatment by the Hospital, and he agreed that it would be difficult, if not impossible, to determine to what extent his anxiety is attributable to the treatment as opposed to his pre-existing condition. Further, to demonstrate liability for loss of consortium (even for an amount of damages to be determined later), a plaintiff must show that the Hospital’s negligence was the proximate cause of a loss of the reciprocal rights and duties of the marriage covenants, such as “society, companionship, love, affection, aid, services, cooperation, sexual relations, and comfort.” Proving causation of the loss of such rights and duties would necessarily require a case-by-case inquiry into the characteristics of each married class member’s marriage and lifestyle. Accordingly, the Webbs’ burden of proof, even for liability alone, is inextricably linked to a case-by-case evaluation of causation for each class member’s injuries. Therefore, “[b]ecause many individual suits would be necessary in this case even if the one or two common issues were resolved class-wide, we are constrained to conclude that the trial court abused its discretion in granting [the Webbs’] motion for class certification.”

Decided November 23, 2010.

Wargo & French, Michael S. French, John P. Mittelhach, Insley & Race, Brian K. Mathis, for appellant.

Stanley G. Jackson, Douglas M. Nelson, for appellees.

Victor C. Hawk, amicus curiae.

Judgment reversed.

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

       See Jones v. Douglas County, 262 Ga. 317, 323-324 (2) (418 SE2d 19) (1992).

       The trial court’s order and the enumerated errors are premised on the application of subsections (b) (2) and (3), so the quoted text omits subsection (b) (1).

        Diallo v. American Intercontinental Univ., 301 Ga. App. 299, 300 (687 SE2d 278) (2009).

       Id.

       (Punctuation omitted.) McGarry v. Cingular Wireless, 267 Ga. App. 23, 25 (1) (599 SE2d 34) (2004). See also Intl. Business Machines Corp. v. Kemp, 244 Ga. App. 638, 642 (2) (536 SE2d 303) (2000).

       (Punctuation omitted.) McGarry, 267 Ga. App. at 25 (1).

       See id. (certification analysis does not address merits of action or whether a claim is properly stated).

       (Citations and punctuation omitted.) Rollins, Inc. v. Warren, 288 Ga. App. 184, 192 (2) (653 SE2d 794) (2007).

       See id. at 193 (2) (relying in part on trial plan showing the centrality of monetary damages to class claims).

       (Punctuation omitted.) Id. at 192 (1).

        James v. Flash Foods, 267 Ga. App. 210, 212, n. 3 (598 SE2d 919) (2004). See also Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 862 (2) (424 SE2d 33) (1992) (“Whether proceeding under a strict liability or a negligence theory, proximate cause is a necessary element of plaintiffs case.”) (punctuation omitted).

        Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990).

       See, e.g., Lee v. Thomason, 277 Ga. App. 573, 576-577 (4) (627 SE2d 168) (2006).

       (Punctuation omitted.) Id. at 576 (4).

       See, e.g., id. (evidence supporting loss of consortium claim included testimony that husband required help to put his socks on every day, his personality had changed, and he had become forgetful, moody, quiet, sad, and depressed). Cf. Williams v. Cox Enterprises, 159 Ga. App. 333, 335-336 (4) (283 SE2d 367) (1981) (class action certification “particularly inappropriate” for participants in Peachtree Road Race because plaintiff’s negligence suit was premised on allegedly improper warning about race conditions and difficulty, and liability would depend on individualized inquiry).

       Cf. Albany Urology Clinic v. Cleveland, 272 Ga. 296, 302 (4) (528 SE2d 777) (2000) (“every patient or client has unique sensibilities”).

        Life Ins. Co. of Ga. v. Meeks, 274 Ga. App. 212, 219 (4) (617 SE2d 179) (2005). See also Tanner v. Brasher, 254 Ga. 41, 45 (2) (326 SE2d 218) (1985) (“Where the resolution of individual questions plays such an integral part in the determination of liability, a class action suit is inappropriate.”). This also confirms our conclusion in Division 1 because “monetary damages claims are not merely incidental when the damages claims of each individual class member would require detailed, case-by-case fact finding at mini-trials.” (Punctuation omitted.) Rollins, 288 Ga. App. at 194 (2).


text:
    A10A1349.
    HOPSON v. THE STATE.
    (703 SE2d 719)
   Adams, Judge.

Jason Kyle Hopson was indicted by a grand jury on charges of rape, kidnapping, aggravated assault, aggravated sexual assault, and aggravated sodomy arising out of an incident on June 19, 2004. Then Fulton County Assistant District Attorney Ash Joshi prosecuted Hopson, and a jury convicted him of rape, but acquitted him of all other charges. Hopson appealed after the trial court denied his motion for new trial, and this Court affirmed his conviction in Hopson v. State, 281 Ga. App. 520 (636 SE2d 702) (2006). Hopson subsequently filed an “Extraordinary Motion for New Trial” on January 31, 2007, alleging that Joshi knew that the victim and another prosecution witness were lying in their trial testimony and that he had an ethical obligation to stop the trial at that point. The trial court denied the motion following a hearing, and Hopson appeals.

The evidence at the motion hearing established that sometime after Hopson’s trial, Joshi left the district attorney’s office and went into private practice. Hopson’s family subsequently consulted Joshi and another lawyer with whom Joshi shared a suite, about Hopson’s case. Hopson’s family recorded the conversation, and it was played for the court during the motion hearing. In that conversation, Joshi stated he knew at one point in the trial that the victim and her friend lied on the stand. At the motion hearing, however, Joshi explained that he had made an overstatement when he said he knew that they had lied because it was only his opinion. He was referring to a conflict in the evidence as to whether the victim had wilfully gone with Hopson the night of the rape, or whether she was dragged to the location where the assault occurred. Joshi stated that this related only to the charge of kidnapping, not the rape charge. After the tape was played, Joshi acknowledged that he told Hopson’s family that he did not believe Hopson raped the victim, but he said that his statement was “inartfully worded,” and that he only meant to address the kidnapping charge. Nevertheless, Joshi told Hopson’s family that for $15,000 he could get Hopson released. He told them that his name could not be on any of the pleadings because he had an absolute conflict of interest. Joshi explained at the motion hearing that he knew that he could not be involved in any representation of Hopson, but he stated that he had discussed with the other lawyer with whom he shared a suite that the lawyer would not be prevented from basing an appeal on any mistakes Joshi made at trial. Hopson’s family did not retain Joshi or the other attorney, but instead turned the tape over to Hopson’s trial attorney, who filed the extraordinary motion in this case.

In denying Hopson’s motion, the trial court found that at the time of the recorded conversation Joshi was seeking to be hired by Hopson’s family, and therefore the credibility of his statements could

reasonably be called into question. Even assuming his remarks to be credible and sincere, the lawyer’s comment constituted no more than an opinion. There is no evidence that the victim ever recanted to the prosecutor or anyone else. Moreover the facts, upon which the purported opinion was based were disclosed to trial counsel and were presented at [Hopson’s] trial. Even if Joshi’s comments could be considered new evidence, their only evidentiary effect would be to impeach the credibility of the victim and her friend, which evidence is insufficient to support the grant of a motion for new trial.

Under the familiar test set forth in Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980),

[i]t is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

“Implicit in these six requirements is that the newly discovered evidence must be admissible as evidence.” Id. Moreover, extraordinary motions for new trial “are not favored, and a stricter rule is applied for an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground.” (Citation and punctuation omitted.) Crowe v. State, 265 Ga. 582, 590-591 (15) (458 SE2d 799) (1995).

Hopson’s extraordinary motion for new trial fails under the Timberlake test. The evidence that came to Hopson’s knowledge after the trial — that Joshi believed the victim and her friend were lying — was merely, as the trial court found, Joshi’s opinion as to his trial witnesses’ credibility. There was no evidence, for example, that the witnesses ever recanted their testimony. “In Georgia, the credibility of a witness is to be determined by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness. Thus, a witness may not give an opinion as to whether the victim is telling the truth.” (Punctuation omitted.) O’Neal v. State, 304 Ga. App. 548, 552-553 (2) (b) (696 SE2d 490) (2010). Evidence of Joshi’s opinion would not have been admissible at Hopson’s trial. In any event, under the sixth Timberlake factor, a new trial will not be granted because the only effect of the evidence will be to impeach a witness’s credibility.

Further, no new trial is warranted on the ground of prosecuto-rial misconduct. The fact that Joshi believed one witness over another in the face of conflicting testimony does not provide a ground for granting a new trial. “A post-trial statement purporting to state that trial testimony was false is merely impeaching of the trial testimony and insufficient to require a new trial in the absence of evidence that the trial testimony was of the purest fabrication. Norwood v. State, 273 Ga. 352 (541 SE2d 373) (2001).” Cooper v. State, 287 Ga. 861, 862-863 (3) (700 SE2d 593) (2010) (new trial not warranted despite witness testimony at new trial hearing that his trial testimony was false and procured by prosecutor).

Decided November 23, 2010

Joseph S. Key, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Additionally, as the trial court noted, the facts that supported Joshi’s opinion that the witnesses were lying — inconsistent testimony about whether she was dragged or went voluntarily to a particular area — were presented at trial. Hopson’s attorney relied upon this discrepancy in closing argument, and at the motion hearing, he could point to no other outside evidence to support Joshi’s conclusion. In any event, the jury reached its own conclusion on this conflicting evidence and acquitted Hopson on the kidnapping charge.

Accordingly, the trial court properly denied Hopson’s extraordinary motion for new trial.

Judgment affirmed.

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

       In reaching this conclusion, we expressly do not condone a prosecutor’s conduct in attempting to be involved in a defendant’s appeal after serving as the prosecutor in his trial. As Georgia Rule of Professional Conduct i.ll (a), Successive Government and Private Employment, provides, “[e]xcept as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government entity consents after consultation.”