author: McMlLLIAN, Judge.

text:
    A13A1055.
    PETRAKOPOULOS et al. v. VRANAS.
    (750 SE2d 779)
   McMlLLIAN, Judge.

George A. Petrakopoulos, Sam Mellas and Alpha Soda Company (“Alpha Soda”) appeal, claiming error in the trial court’s appointment of a “receiver/special master” and its grant of preliminary and permanent injunctive relief without the proper notice and hearing in an action filed by Gus Vranas arising out of a business dispute among the parties. Petrakopoulos, Mellas and Alpha Soda also appeal the trial court’s denial of their motions for summary judgment as to certain claims for damages asserted by Vranas in his complaint as amended. For the reasons set forth below, we reverse the trial court’s order appointing a receiver/special master, and we affirm in part and reverse in part the denial of summary judgment.

In 1991, Mellas, Vranas, and Petrakopoulos formed a partnership known as “MVP Investment Company” (“MVP”) “for the purpose of conducting the general business of developing, buying, selling, renting and investing in real property.” Each partner had a one-third share of the partnership’s profits and losses. Petrakopoulos was named as managing partner in MVP’s “Partnership Agreement” (the “Partnership Agreement”), which required him, inter alia, to “keep accurate books of account in which all matters relating to the [partnership, including all income, expenditures, assets, and liabilities thereof, shall be entered.” Additionally, Petrakopoulos and Mellas were given the duties of collecting and receiving rentals on the partnership’s property, paying bills and expenses incurred in the operation and management of the property, and supervising and coordinating maintenance personnel.

The Partnership Agreement provided that the partnership was to survive until dissolved by mutual agreement of the partners or upon other specified events. It also provided that if a partner defaulted, a majority interest of the remaining partners could elect, upon giving the proper notice, to terminate the defaulting partner’s interest, “without affecting a termination of the Partnership.” The partners who choose to terminate a defaulting partner’s interest are then required to purchase the terminated partner’s interest according to a formula set out in the Partnership Agreement, either in cash or by note, at the purchasing partners’ election.

In 1999, MVP entered into a ten-year lease with Alpha Soda (the “Lease”) whereby Alpha Soda rented restaurant space in a building owned by MVP. Petrakopoulos and Mellas owned Alpha Soda, and Petrakopoulos executed the Lease both as MVP’s managing partner and as Alpha Soda’s president. Under the terms of the Lease, Alpha Soda paid $8,000 per month for the first lease year, with a five percent increase per year through the ten-year lease term. Vranas described Alpha Soda as MVP’s “major tenant.”

In December 2008, Petrakopoulos notified Vranas that Alpha Soda was having economic difficulties and was cutting its rent back to $6,000 per month. Under the terms of the Lease, the monthly rent would have been around $13,000 at that time. Vranas told Petrakopoulos that the rent reduction “[was] not right,” and he should handle the situation “as [if] the landlord was a stranger and not us.” Vranas felt that a $6,000 rental payment was below the market.

Despite the disagreement about Alpha Soda’s reduced rent, however, Vranas agreed to sign a guaranty of MVP’s refinancing of a bank loan in May 2009 (the “May 2009 Guaranty”). Shortly thereafter, Petrakopoulos notified Vranas that Alpha Soda was “no longer profitable” and could no longer pay rent. And in a series of letters and e-mails, Petrakopoulos asked Vranas for additional capital contributions to pay MVP’s debts and to cover management fees he claimed were owing to him and to his son, who had assisted him in managing the partnership.

But Vranas contends that during this same period, Petrakopoulos and Mellas were, inter alia, taking funds from MVP’s accounts without authorization, improperly crediting Alpha Soda’s account with payments that were never made to MVP, and paying Petrakopoulos’s son management fees and other amounts with MVP funds without the approval of the other partners. Vranas also presented evidence that Petrakopoulos and Mellas had not properly accounted for all of these transactions in the partnership records.

On December 10, 2009, Petrakopoulos notified Vranas that “[due] to personal and health reasons,” he would not longer be able to serve as MVP’s managing partner and requested that Vranas take over the management duties. And on December 16, 2009, Petrakopoulos sent Vranas a certified letter giving him ten days to pay a capital contribution of $51,446.73 or he would be in default, entitling Mellas and Petrakopoulos to exercise their rights under the Partnership Agreement to buy Vranas out. Vranas replied by letter dated December 28,2009, refusing to make any payment and asserting that the other partners were not in compliance with the Partnership Agreement. His letter further indicated that his partnership interest was “up for sale.”

On March 10, 2010, Petrakopoulos, as MVP’s managing partner, sent Vranas a letter declaring him to be in default under the Partnership Agreement and proffering notes from Petrakopoulos and Mellas in payment for Vranas’s partnership interest. But by letter dated March 18, 2010, Vranas notified Petrakopoulos and Mellas that they were in default of the Partnership Agreement by failing to fulfill their duties thereunder and that Vranas “[was] prepared to vigorously defend his interests in the [partnership.” Subsequently, Mellas and Petrakopoulos had Vranas removed from the tax records of the partnership and allegedly split Vranas’s capital account between them.

Vranas filed suit on February 16, 2011, and the lawsuit as amended seeks an accounting, dissolution of the partnership, removal of the managing partner and damages based on various theories of liability. Petrakopoulos, Mellas and Alpha Soda each filed answers and motions to dismiss and later filed motions for summary judgment. But the trial court denied those motions, and on September 6, 2012, scheduled a status hearing for September 24, 2012, “for the parties to show cause why an auditor should or should not be appointed pursuant to OCGA § 9-7-3. See also OCGA § 9-7-17. Williams v. Tritt, 262 Ga. 173 [(415 SE2d 285)] (1992).” In the interim, on September 21, 2012, Vranas filed a motion to appoint an auditor.

At the status hearing, the trial court heard argument from the parties and then orally granted Vranas’s motion for the appointment of an auditor, naming attorney Joseph Randazzo as his appointee. Randazzo indicated, however, that he would be “more comfortable” being characterized as a “special master,” explaining that this case was unique because it appeared to require a combination of a receiver and a special master. The trial court directed Randazzo to prepare his own appointment order and to circulate it among the parties.

Although the appellate record suggests that Randazzo prepared such an order, the limited record designated by the parties contains no indication of whether the proposed order was circulated to counsel or whether any party objected to it before the trial court signed it on November 7,2012. The order appointed Randazzo as “Receiver/Special Master for the remainder of the pendency of this litigation” (the “Appointment Order”). The trial court also entered a separate “Order Opening Registry Account and Requiring Registry Payment,” also apparently prepared by Randazzo, to pay him for his services (collectively with the Appointment Order, the “November 7 Orders”). The Appointment Order provided:

[The] Receiver/Special Master shall determine as a result of his own examination or after hearing evidence from all related parties the following:
1) The value of assets held by [MVP];
2) Whether any of the [MVP] partners are in default of their obligations under the partnership agreement;
3) Whether [Alpha Soda] or any [MVP] partners have been unjustly enriched based on loans and rent transactions between the two parties;
4) Whether [MVP] should undergo a partnership dissolution;
5) Whether any parties have breached any fiduciary duties and any related damages;
6) Whether attorney fees should be awarded to any parties; and
7) Any other issues that may arrive or become relevant.

The Appointment Order also “immediately, preliminarily and permanently enjoined” Petrakopoulos, Mellas and Alpha Soda from interfering with the Receiver/Special Master or taking certain actions in connection with their business. Petrakopoulos, Mellas and Alpha Soda subsequently filed a direct appeal of the November 7 Orders.

1. As an initial matter, we must determine whether we have jurisdiction to consider this appeal. See American Mgmt. Svcs. East, Inc. v. Fort Benning Family Communities, LLC, 318 Ga. App. 827, 828 (1) (734 SE2d 833) (2012) (“It is incumbent upon this Court to inquire into its own jurisdiction”) (citation and punctuation omitted). Vranas filed a motion to dismiss the appeal, arguing that a direct appeal was not authorized from the November 7 Orders because although the trial judge stated in the Appointment Order that he was appointing a “receiver/special master,” he was actually appointing an auditor, which Vranas asserts is not an appealable order.

However, in addition to appointing a “receiver/special master,” the Appointment Order issued an immediate, preliminary and permanent injunction against Petrakopoulos, Mellas, and Alpha Soda. Subsection (a) (4) of OCGA § 5-6-34 allows direct appeals from “[a] 11 judgments or orders . . . for interlocutory or final injunctions.” (Emphasis supplied.) Vranas argues that the injunctive relief ordered by the trial court in the Appointment Order was insufficient to allow for a direct appeal because it was merely ancillary to the appointment of Randazzo as an auditor. But because the Appointment Order’s injunction is both permanent and extremely broad, it goes beyond merely facilitating Randazzo’s appointment. For example, as written, the injunction permanently prevents Petrakopoulos, Mellas, and Alpha Soda from “making any business related disbursements,” from “making any... loans,” and from “selling, destroying or depleting any asset” in their possession without limiting the injunction to the partnership accounts, assets or business. The November 7 Orders, therefore, are appealable under OCGA § 5-6-34 (a) (4). See also OCGA § 5-6-34 (d).

Accordingly, we find that we have jurisdiction over this appeal, and Vranas’s motion to dismiss is denied.

2. Petrakopoulos, Mellas and Alpha Soda assert that the trial court erred in appointing a receiver/special master and granting injunctive relief without notice and a hearing. But Vranas again asserts that Randazzo was appointed as an auditor, not a receiver, and the parties received notice and a hearing with regard to the appointment of an auditor.

We review the trial court’s decision appointing an auditor, a receiver, and/or a special master for an abuse of discretion. See Alston & Bird, LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640, 647 (6) (a) (706 SE2d 652) (2010); E. I. DuPont de Nemours & Co. v. Waters, 287 Ga. 235, 236 (695 SE2d 265) (2010); Treu v. Humanism Investment, Inc., 284 Ga. 657, 659 (670 SE2d 409) (2008).

It is undisputed that the trial court provided the parties notice and a hearing with regard to the appointment of an auditor. And it was at that hearing that the appointee, Randazzo, first raised the possibility that he should be appointed as a receiver and/or a special master. Thus, the parties had no prior notice that the appointment of a receiver or a special master would be considered by the trial court. And although at one point, the trial court referred to Randazzo as a “special master, receiver/special master — he is what he is,” the court also subsequently referred to Randazzo as an “auditor.” Accordingly, the trial court never specifically indicated that it would be appointing Randazzo as a receiver/special master at the hearing.

Georgia law distinguishes between the role played by a receiver and an auditor. A trial court may appoint an auditor in all cases “involving matters of account, if the case shall require it,” “to investigate the matters of account and report the result to the court.” OCGA § 9-7-3. Thus, “unless modified by the order of appointment,” an auditor generally is granted the authority “to hear motions, allow amendments, and pass upon all questions of law and fact,” including the “power to subpoena and swear witnesses and compel the production of papers.” OCGA § 9-7-6. And

[u]nder OCGA § 9-7-1, the duties previously performed by a “master” in the superior court are now performed by an “auditor,” although Uniform Superior Court Rule (“USCR”) 46, which was adopted effective June 4, 2009, permits the trial court to appoint a special master to perform certain duties enumerated therein.

(Citation omitted.) Mellon, 307 Ga. App. at 642 (1).

Uniform Superior Court Rule 46 lists a number of tasks for which a special master may be appointed, including “to investigate and report to the court on matters identified by the court,” USCR 46 (A) (1) (e), “to conduct an accounting,” USCR 46 (A) (1) (f), and to “make or recommend findings of fact on issues to be decided by the court without a jury if appointment is warranted by... the need to perform an accounting, [or] to resolve a difficult computation of damages.” USCR 46 (A) (1) (h) (ii). The rule also requires that “[t]he court must give the parties notice and an opportunity to be heard before appointing a master.” USCR 46 (B) (1).

In contrast, a receiver is generally appointed “[w]hen any fund or property is in litigation and the rights of either or both parties cannot otherwise be fully protected or when there is a fund or property having no one to manage it.” OCGA § 9-8-1. Thus, for example, “[e] quity may appoint receivers to take possession of and protect trust or joint property,” OCGA § 9-8-2, or to hold “assets charged with the payment of debts where there is a manifest danger of loss, destruction, or material injury to those interested.” OCGA § 9-8-3. Additionally, the Georgia Code provides that “[t]he power of appointing receivers should be prudently and cautiously exercised and except in clear and urgent cases should not be resorted to.” OCGA § 9-8-4. Although in extraordinary circumstances, “a receiver may be appointed .. . without notice to the . . . person having charge of the assets,” OCGA § 9-8-3, “[a] receiver ordinarily should not be appointed without notice and hearing.” (Citations omitted.) Dixie-Land Iron & Metal Co., Inc. v. Piedmont Iron & Metal Co., 233 Ga. 970, 972 (213 SE2d 897) (1975).

Thus, auditors and special masters primarily assist the trial court in resolving issues in the litigation, while a receiver acts as a guardian over funds or property at issue in the litigation and should be appointed only in clear and urgent cases. As the Appointment Order makes no finding that this case presents a clear and urgent situation and nothing in the order vests Randazzo with guardianship of the partnership accounts or its other assets, it appears that, despite the order’s language appointing Randazzo as a “receiver/special master,” the trial court actually intended to appoint him in the capacity of an auditor and/or a special master to assist the trial court in determining the issues in the case.

And even though the parties were on notice that the trial court was considering the appointment of an auditor, the trial court’s failure to provide notice to the parties and an opportunity to be heard before also appointing Randazzo as a special master violated USCR 46 (B) (1) and thus was an abuse of discretion. See Standard Bldg. Co., Inc. v. Schofield Interior Contractors, Inc., 315 Ga. App. 516, 520 (3) (726 SE2d 760) (2012). Moreover, USCR 46 requires that an order of appointment,

itself, must also contain specific enumerated provisions.... [For example,] the order must set forth, among other things, the special master’s duties, specific limits on the special master’s authority, and standards for reviewing the special master’s orders, findings, and recommendations. Rule 46 (B) (2).

E.I. DuPont de Nemours, 287 Ga. at 238. The Appointment Order also fails to comply with USCR 46 because it does not address all the issues mandated by the rule. We find, therefore, that the Appointment Order is subject to reversal based upon its failure to comply with USCR 46.

Additionally, Georgia law provides that no interlocutory injunction shall be issued without notice to the adverse party, OCGA § 9-11-65 (a) (1), and likewise no permanent injunction may be issued without the proper notice.

Before a court enters a permanent injunction, it must give notice of a hearing at which permanent injunctive relief will be considered, unless the parties agree otherwise. Here, the trial court failed to give such notice before the hearing[, nor was any injunctive relief mentioned at the hearing], and nothing in the record indicates that [Petrakopoulos, Mellas or Alpha Soda] consented to the entry of [any] injunction^ permanent or otherwise].

(Citation omitted.) Wang v. Liu, 292 Ga. 568, 572-573 (2) (740 SE2d 136) (2013). See also Ferdinand v. City of Atlanta, 285 Ga. 121, 124 (674 SE2d 309) (2009) (trial court’s erroneous issuance of a permanent injunction after hearing on city’s motion for interlocutory injunction violated procedural notice requirements and could not be affirmed under the “right for any reason” rule); Smith v. Guest Pond Club, Inc., 277 Ga. 143, 144-145 (1) (586 SE2d 623) (2003) (absent agreement of parties and entry of consolidation order, trial court was not authorized to enter permanent injunction, where scheduling order provided fair notice only of hearing to address request for temporary restraining order). Here, the trial court issued both preliminary and permanent injunctive relief without providing any prior notice that it was considering such an award. The Appointment Order, therefore, is also subject to reversal on this basis.

Accordingly, we reverse and remand for further proceedings in accordance with this opinion.

3. Petrakopoulos, Mellas and Alpha Soda also assert that the trial court erred in denying their motions for summary judgment as to certain of Vranas’s claims seeking damages against Petrakopoulos, Mellas and Alpha Soda.

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

(Citation omitted.) Davis v. VCP South, LLC, 321 Ga. App. 503, 503 (740 SE2d 410) (2013).

In considering the issues on summary judgment, we note that the transactions among the parties were numerous and somewhat complex, and in the absence of a full accounting, factual questions remain as to their nature and scope. We now turn to the individual claims asserted by Vranas.

(a) Fraud and Misrepresentation, In Vranas’s third amended complaint, he asserted a claim of fraud based on allegations that Petrakopoulos and Mellas assured him that Alpha Soda would continue to pay rent of $13,500 per month and common area expense if Vranas would agree to sign the May 2009 Guaranty. He also alleged that Petrakopoulos and Mellas fraudulently manipulated the partnership books and commingled funds in an effort to oust him from the partnership.

We find that Vranas has presented sufficient evidence to raise jury issues with regard to his fraud claims. For example, Vranas averred that Petrakopoulos assured him that Alpha Soda would continue to pay over $13,000 in monthly rent it owed, which induced Vranas to sign the May 2009 Guaranty, but Alpha Soda immediately stopped paying rent after Vranas signed the guaranty. Vranas also asserted that Mellas assured him that Alpha Soda had enough money to continue paying although they did not discuss a particular amount of rent, inducing Vranas to sign the guaranty. Petrakopoulos, Mellas and Alpha Soda argue on appeal that these representations cannot be actionable, because they represent promises as to future events.

Although Petrakopoulos, Mellas and Alpha Soda are correct that “actionable fraud cannot be based on statements and promises as to future events, there is an exception to this proposition, which is that fraud may be predicated on a promise made with a present intention not to perform.” (Citation omitted.) Kirkland v. Pioneer Machinery, Inc., 243 Ga. App. 694, 695 (534 SE2d 435) (2000). And the immediacy of Alpha Soda’s announcement that it would no longer pay rent after Vranas signed the guaranty raises factual issues as to whether the alleged representations of Petrakopoulos and Mellas were made with such an intent. Moreover, Mellas’s alleged statement also included a representation that Alpha Soda was sufficiently solvent to pay its rent. “[FJalse representations of existing or current facts are actionable even if combined with promises as to future events.” (Citation omitted.) Greenwald v. Odom, 314 Ga. App. 46, 53 (1) (723 SE2d 305) (2012).

Accordingly factual issues remain as to whether these representations were false, whether they were made with a present intent not to perform, whether Vranas reasonably relied on such representations, whether the representations and the May 2009 Guaranty prolonged Petrakopoulos’s and Mellas’s control of the partnership affairs, and whether that resulted in damage to Vranas. Additionally, factual issues remain as to whether Petrakopoulos and Mellas were acting in their capacity as agents for Alpha Soda in making these representations to Vranas. In Georgia, a corporation is vicariously liable for the torts of its agents that are committed in the prosecution of and within the scope of its business, Smith v. Hawks, 182 Ga. App. 379 (355 SE2d 669) (1987), including the agent’s fraudulent misrepresentations. Velten v. Regis B. Lippert, Intercat, Inc., 985 F2d 1515, 1522 (11th Cir. 1993). Further, factual issues remain as to whether Petrakopoulos and Mellas supplied him with false or incomplete partnership records or whether they fraudulently manipulated the books in order to declare Vranas in default.

Accordingly, the trial court properly denied summary judgment on Vranas’s fraud claims.

(b) Breach of Contract. Vranas asserted that Alpha Soda had agreed to repay MVP for over $400,000 in loans, which loans included funds improperly diverted from the partnership. In addition, he alleged that Alpha Soda owed MVP on account past due rent, prorated taxes, insurance, utilities and common area expenses.

However, Alpha Soda argues, and we agree, that Vranas has no standing in his individual capacity to seek recovery on Alpha Soda’s direct contractual obligations to MVP; rather any such claim must be brought on behalf of the partnership. Hendry v. Wells, 286 Ga. App. 774, 786-787 (2) (d) (650 SE2d 338) (2007); Thompson v. McDonald, 84 Ga. 5 (2) (10 SE 448) (1889). Accordingly, the trial court erred in denying summary judgment to the extent that Vranas sought recovery individually on any of Alpha Soda’s direct contractual obligations to MVP.

Nevertheless, the Complaint also alleges that Petrakopoulos and Mellas improperly declared funds paid by Alpha Soda to MVP as their own loans and capital contributions to the partnership and otherwise commingled the funds of Alpha Soda and MVP in an effort to declare Vranas to be in default of the Partnership Agreement. And we find that Vranas has presented sufficient evidence of unexplained or contested transactions between Alpha Soda and the partnership to raise jury issues as to whether Petrakopoulos and Mellas breached their obligation to Vranas under the Partnership Agreement. Accordingly, the trial court properly denied summary judgment on any breach of contract claims arising out of the Partnership Agreement.

(c) Unjust Enrichment. Alpha Soda asserts that Vranas also cannot assert a claim against it for unjust enrichment because that theory applies only when no contract exists. “Unjust enrichment applies when as a matter of fact there is no legal contract, but when the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefitted party equitably ought to return or compensate for.” (Citations and punctuation omitted.) Engram v. Engram, 265 Ga. 804, 807 (2) (463 SE2d 12) (1995). See also Smith v. McClung, 215 Ga. App. 786, 789 (3) (452 SE2d 229) (1994).

Decided November 21, 2013

Reconsideration denied December 10, 2013

Shingler Lewis, George P. Shingler, Eric T. Johnson, James C. Watkins, for appellant.

Kennon Peebles, Jr., Leon A. Van Gelderen, for appellee.

But as Alpha Soda argued with regard to the breach of contract claims, Vranas had no contractual relationship with the company in his individual capacity. And Vranas has asserted that Alpha Soda, as well as Petrakopoulos and Mellas in their capacity as Alpha Soda shareholders, were unjustly enriched as a result of various transactions at the expense of his interest in the partnership. Given the uncertainty surrounding those transactions, Alpha Soda has failed to establish that it is entitled to summary judgment on Vranas’s claims for unjust enrichment.

(d) Other Claims. Similarly, because factual issues remain surrounding issues of default under the Partnership Agreement, the breach of any duty owing thereunder, and whether Petrakopoulos dissolved the partnership, we find that the trial court properly denied summary judgment on Vranas’s claims of wrongful dissolution of the partnership and breach of fiduciary duty. See Moses v. Jordan, 319 Ga. App. 706, 706 (738 SE2d 297) (2013) (“the gravamen of a wrongful dissolution claim is a partner’s attempt to appropriate, through the dissolution, the assets or business of the partnership, which may include prospective business, without adequate compensation to the remaining partners”) (citation and punctuation omitted); AAFMcQuay, Inc. v. Willis, 308 Ga. App. 203, 211 (1) (c) (707 SE2d 508) (2011) (“Partners owe fiduciary duties to one another to act in the ‘utmost good faith’ and with the ‘finest loyalty.’ ”) (citation and punctuation omitted).

Accordingly, the trial court properly denied summary judgment as to those claims.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Dillard, J., concur.

       Although MVP was named as a defendant in this lawsuit, it is not a party to this appeal.

       We note at the outset that Vranas’s brief fails to comply with Court of Appeals Rule 25 requiring that “[rjecord and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court." (Emphasis supplied.) Instead, the brief cites to the original page numbers found on the deposition transcripts incorporated into the appellate record. This lack of compliance has greatly hampered the Court’s review, as the deposition page numbers appear at the top of the page, under the appellate record binding. Additionally, both sides, when citing to documents, failed to cite to the pages in the appellate record where those documents actually appear, instead citing to pages where such documents were discussed, further hampering our review.

       It appears that the use of the word “affecting” may have been a typographical error, and that the provision should more properly read “without effecting a termination of the Partnership.”

       The bank has not made a demand on Vranas’s guaranty, and the loan is not in default.

       Nevertheless, Petrakopoulos stated that he returned Vranas’s $15,000 check sent as a capital contribution in July 2009.

       Petrakopoulos also filed a counterclaim.

       The order indicates that it was prepared by Randazzo, but the line for his signature is blank.

       That same day, and just a few minutes after the trial court entered the November 7 Orders, Vranas filed an amended motion to request the appointment of “an auditor or a receiver.” Thus, it appears that the trial court did not consider this amended motion before issuing the November 7 Orders.

       This Court nevertheless refused to consider the issue of notice in that case because the appellants did not appeal or otherwise object to the appointment order, but rather waited until after the special master issued his report before contesting his appointment without notice. Standard Bldg. Co., 315 Ga. App. at 520 (3). We find that the appellants in this case raised a timely objection by appealing the appointment order.

       We consider only the claims Petrakopoulos, Mellas and Alpha Soda properly raise and brief on appeal, and we deem abandoned for appeal any other arguments raised below in conjunction with the motions for summary judgment. See Sparks v. Jackson, 238 Ga. 599 (234 SE2d 514) (1977); Capital Land USA, Inc. v. Mitsubishi Motors Credit of America, Inc., 308 Ga. App. 71, 73 (2) (706 SE2d 590) (2011). For example, in their reply brief, the appellants reply to Vranas’s argument in his appellee’s brief regarding the application of the statute of limitation, but they do not assert on appeal that they are entitled to summary judgment on this ground, even though Petrakopoulos made such an argument below. Accordingly, we do not address the statute of limitation argument on appeal.

       Because the parties share common arguments as to some of the claims, we address the arguments on summary judgment by claim, rather than by party.

       Having found that factual issues exist regarding Alpha Soda’s vicarious liability for fraud by its agents, which precludes summary judgment, we need not address the “reverse veil-piercing” argument raised by Alpha Soda in reply to Vranas’s assertion of this defense in his appellate brief. We note, however, that this Court recently rejected the application of such a theory in the context of fraud. Holiday Hospitality Franchising, Inc. v. Noons, 324 Ga. App. 70 (749 SE2d 380) (2013). See also Acree v. McMahan, 276 Ga. 880, 881 (585 SE2d 873) (2003).

       Only Alpha Soda briefed the issue of unjust enrichment on appeal, and based its argument on the Lease. Although Mellas and Petrakopoulos, both nonsignatories to the Lease, asserted in their reply brief that Vranas’s appellate brief failed to address their arguments on the insufficiency of Vranas’s claim for unjust enrichment, they never raised any such arguments in their initial appellate brief. Accordingly, we do not address Vranas’s claims of unjust enrichment against Petrakopoulos and M!ellas individually.

       Although Mellas argues that he should have been granted summary judgment on Vranas’s conversion claim, it does not appear that Vranas is asserting a separate claim based on that cause of action. Although the prayer for relief under Vranas’s claim for breach of contract, promissory estoppel and fraud in the Third Amended Complaint does use the word “conversion,” the complaint does not raise such a claim, and Vranas does not argue such a claim in opposition to the summary judgment motions or on appeal.


source: Caselaw Access Project

author: RAY, Judge.

license: Public Domain

text:
    A13A1071, A13A1072.
    THE STATE v. LAMPL; and vice versa.
    (750 SE2d 685)
   RAY, Judge.

On September 14, 2011, a Clayton County grand jury indicted John James Lampl for the offenses of conspiracy in restraint of free and open competition (Count I), false statements and writings (Counts II-VII), andperjury (Count VIII). The grand jury’s indictment stemmed from an earlier investigation by a Clayton County special purpose grand jury which had been impaneled pursuant to OCGA § 15-12-100 for the purpose of investigating public corruption and various crimes allegedly committed by currently or previously elected county officials and county employees. As Lampl was neither a county official nor a county employee, he moved to dismiss all counts of the indictment, contending that he was the “target” of an unlawful investigation by the special purpose grand jury and that he should not have been compelled to testify at the special purpose grand jury proceedings.

The perjury charge was based on a portion of Lampl’s testimony to the special purpose grand jury. In its ruling on the motion to dismiss, the trial court found that the special purpose grand jury was not authorized to conduct an investigation of Lampl, who was an employee of the City of Morrow, and was not authorized to investigate Lampl’s involvement with “Olde Towne Morrow,” a real estate development project for the City of Morrow. The trial court further found that the special purpose grand jury was not authorized to subpoena Lampl to testify regarding matters which exceeded the scope of its investigation. Accordingly, the trial court granted Lampl’s motion to dismiss with regard to the perjury count (Count VIII) of the indictment, and it also granted his motion to suppress the statements that he made to the special purpose grand jury However, the trial court denied Lampl’s motion to dismiss with regard to the remaining counts of the indictment (Counts I-VII), finding that the indictment was brought by a properly constituted grand jury which was authorized to indict Lampl for these offenses.

Both parties appeal from the trial court’s ruling, and their cross-appeals are consolidated for our review. In Case No. A13A1071, the State contends that the trial court erred in dismissing the perjury count because the special purpose grand jury did not exceed the scope of its investigation. The State argues that the investigation into the Olde Towne Morrow project, as well as the questioning of Lampl, potentially involved corruption at the county level. The State further contends that the trial court erred in suppressing Lampl’s statements because (1) the special purpose grand jury had the authority to subpoena Lampl; (2) Lampl testified voluntarily; and (3) there was no violation of Lampl’s constitutional rights. In Case No. A13A1072, Lampl contends that the trial court erred in denying his plea in bar and motion to dismiss with regard to the remaining counts (Counts I-VII) of the indictment, arguing that the State had engaged in prosecutorial misconduct by, inter alia, exceeding the legal limitations of the special purpose grand jury and allowing the special purpose grand jury to subpoena and compel Lampl to testify at the grand jury proceedings even though he was the intended target of the unauthorized investigation. Lampl argues that dismissal of the indictment was warranted because the State’s misconduct was so outrageous and fundamentally unfair that it shocks the universal sense of justice mandated by the due process clause. For the reasons that follow, we affirm the judgments.

Case No. A13A1071

1. The State contends that the trial court erred in dismissing the perjury count (Count VIII) of the indictment. Essentially, the State argues that the special purpose grand jury was authorized to investigate the Olde Towne Morrow project because it potentially involved corruption at the county level, and that the special purpose grand jury did not exceed the scope of its investigative authority when it subpoenaed Lampl and questioned him with regard to his involvement in the city project. We disagree.

A special purpose grand jury may be impaneled “for the purpose of investigating any alleged violation of the laws of this state or any other matter subject to investigation by grand juries as provided by law.” OCGA § 15-12-100 (a). Although a special purpose grand jury is limited to investigative purposes and has no power to return an indictment, the law otherwise relative to regular grand juries applies to special purpose grand juries. See OCGA § 15-12-102. With respect to regular grand juries, their duties “shall be confined to such matters and things as [they are] required to perform by the Constitution and laws or by order of... the superior court of the county [in which they are impaneled].” OCGA § 15-12-71 (a).

In this case, the Clayton County Superior Court entered an order impaneling the special purpose grand jury “for the purpose of investigating public corruption and various crimes allegedly committed by currently or previously elected county officials and county employees.” It is undisputed that Lampl was an employee of the City of Morrow, and that he was neither a currently or previously elected county official or county employee. Furthermore, our review of the transcripts of the special purpose grand jury proceedings indicate that the investigation focused on Lampl and the contracting irregularities related to the Olde Towne Morrow project, a matter that did not involve county officials or county employees. Accordingly, we agree with the trial court that the special purpose grand jury did not have the authority to investigate Lampl or the Olde Towne Morrow project.

Likewise, we agree with the trial court that the special purpose grand jury lacked the authority to subpoena Lampl for the purpose of investigating the Olde Towne Morrow project and his involvement in the same. While a special purpose grand jury may subpoena witnesses and compel evidence, its power to do so is limited to matters which relate directly or indirectly to the authorized investigation. See OCGA § 15-12-100 (c). Here, the special purpose grand jury was not authorized to investigate Lampl or the Olde Towne Morrow project. As Lampl’s perjury charge arose out of his testimony during this unauthorized investigation, the trial court did not err in dismissing the perjury count. See State v. Bartel, 223 Ga. App. 696, 696-697 (479 SE2d 4) (1996) (“The law of Georgia does authorize a perjury prosecution against witnesses who swear falsely in testimony before local grand juries conducting civil investigations, so long as the grand jury is lawfully conducting an investigation authorized by state law”) (emphasis supplied).

2. The State makes the additional argument that we should reverse the ruling of the trial court and remand the case to allow the State to present additional evidence regarding the authorized scope of the special purpose grand jury’s investigation. It contends that the trial court erroneously prevented the State from presenting evidence on this issue. Specifically, the State argues that the trial court erred by (i) failing to consider redacted portions of the superior court order impaneling the special purpose grand jury; (ii) refusing to permit the State to proffer an unredacted copy of the order; and (iii) refusing to accept testimony from the superior court judge who had been assigned to follow the progress of the special purpose grand jury. This argument is wholly without merit.

Prior to the hearing on the plea in bar and motion to dismiss, Lampl filed a motion with the trial court seeking to obtain a copy of the order impaneling the special purpose grand jury. Over the State’s objection, the trial court granted Lampl’s motion. In its ruling, the trial court directed that redacted copies of the order be released to the parties, with the names of the specific targets of the investigation blacked out. The trial court further stated that Lampl’s name was not among those listed in the order as an authorized target of the special purpose grand jury investigation.

At the hearing on Lampl’s plea in bar and motion to dismiss, the State did not make a proffer or request to have an unredacted copy of the order impaneling the special purpose grand jury admitted into evidence, nor did it seek to call as a witness the judge who presided over the special purpose grand jury. Thus, the State has failed to show any error on the part of the trial court.

As the State was afforded an opportunity to present evidence at the hearing and failed to do so, we conclude that remanding the case to give the State a second opportunity to present evidence is inappropriate and unauthorized. See, e.g., Mosby v. State, 319 Ga. App. 642, 645 (1) (738 SE2d 98) (2013).

3. The State further contends that the trial court erred in suppressing Lampl’s statements to the special purpose grand jury. In light of our holding in Division 1, we need not address this enumeration.

Case No. A13A1072

4. While the trial court granted Lampl’s plea in bar and motion to dismiss with regard to the perjury count of the indictment (Count VIII), Lampl contends that the trial court erred in failing to dismiss the remaining counts of conspiracy in restraint of free and open competition (Count I) and false statements and writings (Counts II-VII).

In his motion and in his argument at the hearing on his motion to dismiss before the trial court, Lampl argued that the district attorney had orchestrated the unauthorized investigation of Lampl and the Olde Towne Morrow project and, thus, had engaged in prosecutorial misconduct that was so outrageous and fundamentally unfair that it violated due process of law, warranting dismissal of the indictment in toto.

However, “[a] plea in bar is one which goes to bar the [S]tate’s action; that is to defeat it absolutely and entirely.” (Citation and punctuation omitted.) State v. Land-O-Sun Dairies, Inc., 204 Ga. App. 485, 486 (419 SE2d 743) (1992). A plea in bar typically involves some legal impediment which precludes the State from prosecuting its case, such as the prohibition against successive prosecutions for the same crime (double jeopardy) (Banks v. State, 320 Ga. App. 98 (739 SE2d 414) (2013)), the violation of a defendant’s right to a speedy trial (Singleton v. State, 317 Ga. App. 637 (732 SE2d 312) (2012)), or the expiration of the statute of limitations (State v. Mullins, 321 Ga. App. 671 (742 SE2d 490) (2013)). Here, Lampl is arguing that the district attorney engaged in prosecutorial misconduct during the unauthorized investigation by the special purpose grand jury, which violated his due process rights.

Decided October 28, 2013

Reconsideration denied December 10, 2013

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Frances C. Kuo, Kathryn L. Powers, Assistant District Attorneys, for appellant.

Brian Steel, for appellee.

“Although federal and state courts possess the authority to dismiss an indictment for governmental misconduct, dismissal is an extreme sanction which should be infrequently utilized. Dismissal is only favored in the most egregious cases.” (Citation and punctuation omitted.) Robinson v. State, 200 Ga. App. 515, 517 (1) (408 SE2d 820) (1991). This is not such a case.

The remedy for an alleged constitutional violation involving governmental misconduct should be tailored to the injury suffered from the violation. Wilcox v. State, 250 Ga. 745, 755(4) (301 SE2d 251) (1983). Furthermore, the dismissal of an indictment is not the appropriate remedy when the case may proceed with full recognition of the defendant’s right to a fair trial. Id. at 756 (4). Assuming that the unauthorized investigation of Lampl and his involvement in the Olde Towne Morrow project involved prosecutorial misconduct which violated Lampl’s due process rights, the dismissal of the indictment is not appropriate because Lampl was afforded an adequate remedy, i.e., the suppression of his statements. See, e.g., McGarvey v. State, 186 Ga. App. 562, 563 (2) (368 SE2d 127) (1988) (defendant was not entitled to have indictment dismissed for prosecutorial misconduct based on the district attorney’s refusal to provide the defense with one of defendant’s statements, because exclusion of the statement was an available remedy).

Since the trial court granted Lampl’s motion to suppress the statements he made to the special purpose grand jury, there has been no actual prejudice to Lampl which would affect his ability to receive a fair trial. Under these circumstances, the remedy of dismissing the indictment is not warranted.

Judgments affirmed.

Barnes, R J., and Miller, J., concur.

       See Kenerly v. State, 311 Ga. App. 190, 190-194 (1) (715 SE2d 688) (2011).

       The trial court found that Lampl’s statements could be used for the limited purposes of impeachment. This finding has not been raised as an enumeration of error on appeal.


author:
ANDREWS, Presiding Judge.
      BARNES, Presiding Judge,

text:
    A13A1149.
    MCG HEALTH, INC. v. KIGHT.
    (750 SE2d 813)
   ANDREWS, Presiding Judge.

MCG Health, Inc. appeals from the trial court’s ruling on summary judgment that the hospital lien it filed pursuant to OCGA § 44-14-470 et seq. for hospital care furnished to Christopher Eight was void, and from the award of attorney fees and expenses of litigation to Eight pursuant to OCGA § 13-6-11. For the following reasons, we reverse.

MCG Health (the Hospital) operates a hospital under the name MCG Medical Center. On March 21, 2007, the Hospital filed a lien pursuant to OCGA § 44-14-470 et seq. for hospital care furnished to Eight from February 4 to February 20, 2007, for hospital charges in the amount of $36,177.68. It is undisputed that the hospital care was furnished to Eight for injuries he sustained in an automobile accident in which Eight was a passenger in a car driven by an allegedly intoxicated driver (the tortfeasor), and that the Hospital furnished the care pursuant to a contract with Eight’s managed health care insurer, Blue Cross/Blue Shield (Blue Cross).

Pursuant to OCGA § 44-14-470 (b), the lien for hospital care furnished to Eight was a lien “upon any and all causes of action” accruing to Eight on account of the injuries that necessitated the care. In December 2007, after Eight received an offer from the tortfeasor to settle his cause of action for the injuries, Eight demanded that the Hospital cancel its lien against the cause of action because, based on payments agreed to by the Hospital and Blue Cross under their contract, there were no unpaid charges owed to the Hospital for care furnished to Eight. Eight contended that, because no debt was owed the Hospital under the contract, the Hospital was precluded from asserting a lien under OCGA § 44-14-470 (b). After the Hospital failed to cancel the lien, Eight brought an action against the Hospital in March 2008 (for declaratory and equitable relief) claiming that, when the lien was filed, there were no unpaid charges for care furnished by the Hospital under the contract; seeking a ruling that the lien was invalid and void; and also seeking the award of attorney fees and expenses pursuant to OCGA § 13-6-11. The Hospital answered, and Eight subsequently moved for partial summary judgment. On September 24, 2008, the Hospital filed an amended lien pursuant to OCGA § 44-14-470 et seq. The amended lien stated that it “super-cedes the previous lien... only as to the total charges presently owed” and that the Hospital furnished care to Eight “from February 4, 2007 to February 20, 2007, resulting in unpaid charges in the amount of $863.10.” After filing the amended lien, the Hospital amended its answer and filed a counterclaim against Eight in December 2009 stating that the Hospital furnished Eight additional care for his injuries in February, March, and April 2007; that Eight owed the Hospital for unpaid deductibles and co-pays in the amount of $863.10 for the care; and seeking a judgment in the amount of $863.10 to enforce the lien as amended against Eight’s cause of action against the tortfeasor.

After Eight moved for summary judgment, the Hospital also moved for summary judgment on its counterclaim and on Eight’s claims. In February 2010, the trial court entered an order granting partial summary judgment in favor of Eight on his claims seeking declaratory and equitable relief; ruling that the hospital lien filed on March 21, 2007, was invalid and “void ab initio”; directing the clerk to cancel the lien; and ruling that the Hospital was not entitled to use the lien to collect any unpaid deductibles or co-pays sought in its counterclaim. The trial court denied Eight’s motion for summary judgment on his claim for attorney fees pursuant to OCGA § 13-6-11, and denied the Hospital’s motion for summary judgment on all issues. In June 2012, the trial court entered an order (pursuant to consent of the parties) dismissing with prejudice Eight’s remaining counts in the complaint (except the count seeking attorney fees and expenses), and ruling that Eight owed the Hospital the $863.10 amount sought in its counterclaim for unpaid deductibles and co-pays, but with payment deferred until resolution of Eight’s claim for attorney fees and expenses. In August 2012, the trial court appointed a special master to conduct a hearing and rule on Eight’s claim for attorney fees and expenses pursuant to OCGA § 13-6-11, and on October 9, 2012, after an evidentiary hearing, the special master awarded Eight attorney fees in the amount of $40,950 and expenses in the amount of $3,376.60. On October 29, 2012, the trial court entered its final judgment in the case adopting the special master’s award subject to a set-off in the amount of $863.10 in favor of the Hospital.

1. The Hospital contends that the trial court erred by granting partial summary judgment in favor of Eight on his claims that the hospital lien filed on March 21, 2007, pursuant to OCGA § 44-14-470 (b) was invalid and void on the basis that, when the lien was filed, there was no debt owed to the Hospital for the care furnished to Eight under the contract with Blue Cross.

Eight was a member of the Blue Cross managed health care insurance plan, and the hospital care furnished to Eight for injuries he suffered in the accident was covered under a contract between the Hospital and Blue Cross. Under the contract, the Hospital agreed to discount its billed charges for covered hospital care and accept the discounted amount as “payment in full” for the covered care provided to Blue Cross members. The contract allowed the Hospital to bill Eight directly for deductibles and co-pays owed by Eight to the Hospital, but the Hospital agreed under the contract not to balance-bill Eight for the difference between the Hospital’s billed charges and the discounted amount due under the contract.

The record shows that, after the automobile accident, Eight initially received hospital care for the period from February 4, 2007, until he was discharged on February 8,2007. Under the contract with Blue Cross, the Hospital’s billed charges during that period were initially stated as $35,294.49 but were subsequently adjusted to show billed charges of $34,794.49. Pursuant to the contract, the Hospital “wrote off” $23,603.81 of the charges for that period resulting in a discounted amount due to the Hospital under the contract of $11,190.68, plus $500 in deductibles or co-pays owed to the Hospital by Eight. On March 6 and 7,2007, the Hospital received insurance payments in the amount of $11,690.68 in full payment of amounts due under the contract for that period — $10,000 from the tortfeasor’s medical payments insurance coverage (which was considered primary insurance under the contract) and $1,690.68 from Blue Cross. The payment of $1,690.68 from Blue Cross included $500 retained by the Hospital to cover deductibles or co-pays owed by Eight. A subsequent audit resulted in a refund to Blue Cross in November 2007 and recognized that Eight was still responsible for deductibles or co-pays for the care provided from February 4 to February 8. But at the time the Hospital filed the lien on March 21, 2007 (for hospital care furnished from February 4 thru February 20) the Hospital’s records reflected that no amounts were owed under the Blue Cross contract for initial care provided from February 4 to February 8.

Subsequent to February 8, Eight received additional care furnished by the Hospital for his injuries. On February 15, 2007, Eight received care resulting in billed charges of $294 discounted to $ 119.98 and paid by Blue Cross on March 30, 2007, and a deductible or co-pay owed by Eight of $85.82. On February 20, 2007, Eight received care resulting in billed charges of $345.39 discounted to $141.12 and paid by Blue Cross on March 30, 2007, and a deductible or co-pay owed by Eight of $100.66. On February 27,2007, Eight received care resulting in billed charges of $252 discounted to $141.12 andpaidby Blue Cross on March 30, 2007, and a deductible or co-pay owed by Eight of $35.28. On March 2 to March 15, 2007, Eight received care resulting in billed charges of $1,124.45 discounted to $629.58 andpaidby Blue Cross on April 30, 2007, and a deductible or co-pay owed by Eight of $157.40. And on April 3 to April 5, 2007, Eight received care resulting in billed charges of $599.60 discounted to $335.78 and paid by Blue Cross on May 16, 2007, and a deductible or co-pay owed by Eight of $83.94. Accordingly, for hospital care furnished from February 4 to April 5, 2007, Eight owed the Hospital a total of $863.10 in deductibles or co-pays, the same amount the Hospital sought from Eight in its counterclaim, and the same amount that the trial court awarded to the Hospital in the consent order on the counterclaim and in the final judgment.

Pursuant to OCGA § 44-14-471 (b), the Hospital filed the lien on March 21, 2007, stating “the amount claimed to be due for the hospital. . . care” ($36,177.68); stating “the dates of admission and discharge of the patient” (from February 4 to February 20, 2007) for the furnished care; and showing that the lien was filed, as required, “within 75 days after the person has been discharged... .’’As shown above, when the Hospital filed the lien, the amount still owed to the Hospital under the Blue Cross contract for care furnished from February 4 to February 20 was $261.10 in unpaid discounted payments due from Blue Cross, and $186.48 in unpaid deductibles or co-pays due from Eight. During that period, there were also unpaid “write-offs” from the Hospital’s billed charges: $23,603.81 written off for treatment furnished from February 4 to February 8, and $378.29 written off for additional treatment furnished between February 8 and February 20.

Despite the unpaid sums, the trial court granted partial summary judgment in favor of Eight and declared the hospital lien void on the basis that, when the lien was filed on March 21, 2007, no debt was owed to the Hospital under the contract with Blue Cross for care furnished to Eight during the lien period from February 4 to February 20, 2007. In reaching this conclusion, the trial court relied on the decision in Constantine v. MCG Health, 275 Ga. App. 128 (619 SE2d 718) (2005), which found under similar circumstances that the lack of debt owing to a hospital under the contract between the hospital and the injured person’s health care insurer precluded a hospital lien under OCGA § 44-14-470 (b). Because we find that this holding in Constantine was incorrect and has been implicitly overruled by subsequent Supreme Court of Georgia authority, the trial court’s ruling was error, and we reverse.

Pursuant to OCGA § 44-14-470 (b), a hospital operating in this state

shall have a lien for the reasonable charges for hospital. . . care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of such person on account of injuries giving rise to the causes of action and which necessitated the hospital... care The lien provided for in this subsection is only a lien against such causes of action and shall not be a lien against such injured person, such legal representative, or any other property or assets of such persons and shall not be evidence of such person’s failure to pay a debt.

The statute enables hospitals to collect payment for unpaid reasonable charges for furnishing hospital care to an injured person by giving the hospital a lien against any cause of action that accrues to the injured person arising out of the injuries that necessitated the care. The cause of action referred to by the statute is the injured person’s right to claim that a tortfeasor caused the personal injuries that necessitated the hospital care, and to seek compensation from the tortfeasor for the injuries and economic damages including charges for the hospital care. Where a tortfeasor (or an insured tortfeasor’s insurance company) makes liability payments to the injured person to cover the economic damages caused by the tortfeasor, the payments are subject to the hospital lien for the unpaid charges for hospital care. State Farm Mut. Automobile Ins. Co. v. Adams, 288 Ga. 315, 319 (702 SE2d 898) (2010). “In short, the lien allows the hospital to step into the shoes of the [injured person] for purposes of receiving payment from the [tortfeasor or the] tortfeasor’s insurance company for economic damages represented by the hospital bill.” Id. at 318; Southern Gen. Ins. Co. v. Wellstar Health Systems, 315 Ga. App. 26, 30 (726 SE2d 488) (2012).

Eight’s cause of action against the tortfeasor for injuries and economic damages he sustained in the accident was not limited to seeking economic damages represented by the discounted amounts paid on the Hospital’s billed charges under the contract with Blue Cross. Rather, Eight was entitled to recover medical expenses arising from his injuries, including hospital charges, that were “reasonable and necessary.” Allen v. Spiker, 301 Ga. App. 893, 896 (689 SE2d 326) (2009). Moreover, under the collateral source rule, Eight was entitled to seek full recovery from the tortfeasor of reasonable and necessary hospital charges undiminished by insurance payments or “write-offs” under the Hospital’s contract with Blue Cross. Olariu v. Marrero, 248 Ga. App. 824 (549 SE2d 121) (2001). A qualification applies to the rule in this case because the record shows that the tortfeasor’s insurer paid $10,000 of the Hospital’s charges. To prevent a double recovery, Eight was not entitled to recover in judgment against the tortfeasor what has already been paid on the tortfeasor’s behalf by an insurer. Candler Hosp. v. Dent, 228 Ga. App. 421, 423 (491 SE2d 868) (1997); Olariu, 248 Ga. App. at 826. It follows that Eight’s cause of action against the tortfeasor entitled him to seek recovery of the Hospital’s undiminished billed charges as the reasonable and necessary hospital charges he incurred for hospital care furnished from February 4 to February 20, 2007. In this case that amount would be the Hospital’s billed charges of $34,794.49 — reduced by $10,000 paid by the tortfeasor’s insurer — for a total of $24,794.49.

Under the lien provisions of OCGA § 44-14-470, the Hospital steps into Eight’s shoes for purposes of receiving payment from the tortfeasor or the tortfeasor’s insurance company for economic damages represented by the hospital charges. Adams, 288 Ga. at 319; see Cheek v. J. Allen Couch & Son Funeral Home, 125 Ga. App. 438, 445 (187 SE2d 907) (1972) (predecessor lien statute (Ga. Code Ann. § 67-2207) provided lien for hospital charges against injured patient’s cause of action against tortfeasor for the “extent of [the hospital’s reasonable charges]... but not beyond the extent of [the tortfeasor’s] liability for damages . . .”). Since Eight’s cause of action for recovery of hospital charges incurred because of his injuries was not limited to the discounted charges paid to the Hospital under the Blue Cross contract, there is no reason to conclude that the legislature intended for the Hospital’s lien rights under OCGA § 44-14-470 to be limited by payment of the discounted charges or the absence of debt owed to the Hospital under the contract. MCG Health v. Owners Ins. Co., 288 Ga. 782, 784-785 (707 SE2d 349) (2011) (absence of debt owed to hospital under contract with injured patient’s health care insurance plan did not preclude hospital lien under OCGA § 44-14-470 et seq.). Rather, the plain meaning of OCGA § 44-14-470 (b) is that the “lien for the reasonable charges for hospital... care” in the statute refers to the same reasonable charges for hospital care that the injured person to whom the care was furnished was entitled to seek in a cause of action against the tortfeasor. Since Eight could have sought recovery of $24,794.49 of the Hospital’s billed charges as reasonable and necessary hospital charges incurred for his injuries, the Hospital was entitled to assert a lien under OCGA § 44-14-470 (b) for the unpaid portion of those billed charges as the reasonable charges for hospital care furnished to Eight. When the lien was filed on March 21, 2007, the unpaid portion of the billed charges for the hospital care furnished to Eight by the Hospital for the period from February 4 to February 20 (as stated in the lien) totaled $24,429.68 as derived from the following: the unpaid write-off of $23,603.81 for care furnished from February 4 to February 8; the unpaid write-off of $378.29 for care furnished between February 8 and February 20; the unpaid discounted payments still due under the contract from Blue Cross in the amount of $261.10; and the unpaid deductibles or co-pays still due under the contract from Eight in the amount of $186.48.Accordingly, the trial court erred by ruling that the Hospital’s lien filed on March 21, 2007, was “void ab initio” and subject to cancellation because of the absence of debt owed to the Hospital under the contract with Blue Cross.

The Hospital’s contract with Blue Cross and its members provided that the Hospital would write off or reduce portions of its billed charges for hospital care, and that the Hospital would accept the reduced charges as full payment for services covered under the contract without balance-billing members for the difference. The absence of debt owed to the Hospital under the contract with Blue Cross, and the Hospital’s agreement in the contract not to balance-bill Blue Cross members to collect the difference between the reduced charges and the billed charges, cannot be construed as a waiver or preclusion of the Hospital’s lien rights under OCGA § 44-14-470 et seq. In MCG Health v. Owners Ins. Co., 302 Ga. App. 812 (692 SE2d 72) (2010), this Court held that, because no debt was owed to the hospital under the contract between the hospital and the injured patient’s health care insurance provider, there was no debt to support a hospital lien under OCGA § 44-14-470 (b) so the asserted lien was invalid. In support of this holding, we cited to foreign authority concluding that

because the [contract between the hospital and the insurance plan] negates the existence of a debt owed by [the injured plan member] to the hospital[,] and because the filing of the lien violates the hospital’s agreement to not seek recourse against [the plan member], the hospital is precluded under the contract from asserting its lien rights.

Id. at 816, n. 15 (quoting Door v. Sacred Heart Hosp., 228 Wis. 2d 425, 444 (I) (597 NW2d 462) (1999)). Accordingly, we held in MCG Health that, when a contract between the hospital and the injured person’s health care insurer requires the hospital to accept reduced amounts as “payment in full” for billed charges, and the hospital agrees not to balance-bill the injured person for billed charges in excess of the reduced payments, the contract negates any debt owed by the injured person to the hospital, and the absence of debt precludes a lien under OCGA § 44-14-470 (b). MCG Health, 302 Ga. App. at 816-820. As additional authority for this holding, MCG Health, supra at 813, cited to our decision in Constantine, 275 Ga. App. 128.

In Constantine, a similar contract between the hospital and the health care insurer required the hospital to accept reduced amounts as full payment for billed hospital charges, and the hospital agreed not to balance-bill the injured insured to recover billed charges in excess of the agreed-upon reduced amounts. Id. at 129. The contract in Constantine also provided that in no event would the hospital have “any recourse” against an injured insured for hospital services covered by the agreement. Id. at 130. Constantine found that these provisions prohibited balance-billing by the hospital and were “written to protect both [the health care insurer] and its insureds from any claims for repayment in excess of those agreed to.” Id. Considering these provisions, Constantine held that the health care insurer’s payment to the hospital of reduced amounts due under the contract extinguished any debt owed to the hospital under the contract, and the absence of debt precluded the hospital from filing a lien under OCGA § 44-14-470 to collect for unpaid hospital services in excess of the reduced amounts. Id. at 130-131; accord MCG Health, 302 Ga. App. at 813, n. 4 (citing to Constantine for the proposition that “hospital lien could not be maintained because balance billing was prohibited by contract between the individual’s insurer and the health care provider, and the health care provider had already accepted contractual payment from individual’s insurer”).

In MCG Health, 288 Ga. 782, the Supreme Court granted certiorari to consider our holding in MCG Health, 302 Ga. App. 812, and rejected our construction of OCGA § 44-14-470 (b). The Supreme Court found that we misconstrued OCGA § 44-14-470 (b) when we held that the lien under this statute was invalid on the basis that “the patient was immune from debt based on the contract” and that “there was no debt owing [under the contract] for the hospital to collect.” MCG Health, 288 Ga. at 784. The Supreme Court held that OCGA § 44-14-470 (b) is silent as to the existence of a debt to support the lien, and that this Court erroneously “impose [d] a requirement to the statute that was not expressly stated therein.” Id. at 785. Although the Supreme Court did not specifically address or overrule our similar holding in Constantine, 275 Ga. App. 128, on this basis, in light of the decisions in MCG Health, 288 Ga. at 784-785, and in Adams, 288 Ga. at 319, we conclude that Constantine was implicitly overruled in part and will no longer be followed to the extent it held that the absence of debt owed to a hospital under a contract with a health care insurer precludes a hospital lien under OCGA § 44-14-470.

After finding that the absence of debt owed to the hospital under the contract did not preclude the hospital lien, the Supreme Court in MCG Health employed the “right for any reason” rule to affirm the judgment invalidating the lien on the basis that (1) Tricare, the federal insurance program pursuant to which the hospital services were provided, was governed by federal regulations that preempted the lien under OCGA § 44-14-470, and (2) the contract between the hospital and Tricare contained a provision prohibiting the hospital from “any recourse” against the insured for covered services provided under the contract. MCG Health, 288 Ga. at 785-786. The hospital in MCG Health asserted the lien for the full amount of the hospital’s billed charges, including amounts payable under the Tricare insurance plan. Id. at 784. The Supreme Court found that the “any recourse” provision prohibited the hospital lien because any attempt to collect the lien for those amounts against tort settlement proceeds (which had already been paid out to the injured insured) would cause the insured an “immediate financial loss” and defeat the purpose of the contract “for Tricare beneficiaries to have their healthcare costs paid in full at the negotiated rates without fear of further recourse.” Id. at 786.

The contract between the Hospital and Blue Cross in this case was not governed by Tricare or similar federal regulations and did not contain a similar provision prohibiting the Hospital from “any recourse” against a Blue Cross insured for covered services under the contract. So the manner in which those federal regulations or an “any recourse” contractual provision affects lien rights under OCGA § 44-14-470 is not at issue in this case. As the special concurrence points out, the contract between the hospital and the health care insurer in Constantine, supra, did contain an “any recourse” provision similar to the provision addressed by the Supreme Court in MCG Health, supra. Constantine, 275 Ga. App. at 130. To the extent Constantine also relied on the “any recourse” provision to hold that the hospital lien in that case was invalid, we do not address that holding.

2. Because Eight’s underlying claims against the lien failed, he was not entitled to an award of attorney fees and expenses of litigation pursuant to OCGA § 13-6-11. Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga. App. 439, 451-452 (638 SE2d 879) (2006).

Judgment reversed.

Dillard, Boggs, Ray, Branch and McMillian, JJ., concur. Phipps, C. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., Miller and McFadden, JJ., concur and concur specially.

BARNES, Presiding Judge,

concurring fully and specially.

While I concur fully with the majority, I write separately to emphasize that Constantine v. MCG Health, 275 Ga. App. 128 (619 SE2d 718) (2005) remains good law for the proposition that a hospital can contractually waive its right to collect on a hospital lien through a “no recourse” provision in the hospital’s contract with a patient’s health insurer.

In MCG Health v. Owners Ins. Co., 288 Ga. 782, 785 (1) (707 SE2d 349)(2011), the Supreme Court of Georgia held that OCGA § 44-14-470 (b) of the hospital lien statute does not require “that the debt... be owed by the patient in order for a hospital to foreclose on a lien.” Based on MCG Health, under the hospital lien statute, a hospital may pursue a lien even in the absence of an outstanding debt owed by the patient to the hospital under the terms of the contract between the hospital and the patient’s health insurer.

But that does not end the matter in all cases. It is a well-settled principle of Georgia law that, “absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights.” (Citation and punctuation omitted.) Aetna Workers’ Comp Access v. Coliseum Med. Center, 322 Ga. App. 641, 647-648 (2) (746 SE2d 148) (2013). Consistent with this longstanding principle, Georgia law permits a hospital to contract with a patient’s health insurer to limit or preclude its statutory rights under the hospital lien statute, as the Supreme Court itself recognized in MCG Health. The Supreme Court in MCG Health held that the lien at issue was invalid and uncollectible because certain federal regulations preempted the hospital lien statute under the circumstances of that case. See id. at 785-786 (2) (a). Significantly, however, the Supreme Court went on to hold that even if those federal regulations were not applicable, the lien at issue was invalid and uncollectible under the specific terms of the contract between the hospital and the patient’s health insurer prohibiting the hospital from “hav[ing] any recourse” against the insured patient. Id. at 783, 786 (2) (b). The Supreme Court reasoned that allowing the hospital to collect on a lien where it would cause the insured patient an “immediate financial loss” — such as collecting from the funds awarded to the patient under a settlement reached between the patient and the third-party tortfeasor’s liability insurer — would violate the “no recourse” provision of the contract, the very purpose of which was for insured patients “to have their healthcare costs paid in full at the negotiated rates without fear of further recourse.” Id. at 786 (2) (b).

This Court reached a similar conclusion in Constantine, 275 Ga. App. 128. In that case, the hospital filed a lien pursuant to OCGA § 44-14-470 (b) on the patient’s cause of action against a third-party tortfeasor in anticipation of collecting from any funds awarded to the patient in a settlement or judgment. Id. at 129. Among other things, we concluded that the hospital could not pursue the lien in the face of a “no recourse” provision of the contract between the hospital and patient’s health insurer that was similar to the provision found in MCG Health See id. at 129,130-131 (1). In reaching this conclusion, we noted that

[n] othing in the agreement or the record suggests that either party had the [hospital lien] statute’s distinction between persons and causes of action in mind when they framed [the “no recourse”] provision, which was written to protect both [the insurer] and its insureds from any claims for repayment in excess of those agreed to.

Id. at 130 (1). We further noted that the parties’ obligations were set “by the terms of [the] negotiated contract” and that the hospital would be held “to the terms of the bargain it struck.” Id.

Constantine, therefore, ultimately turned on this Court’s interpretation of the “no recourse” provision of the contract between the hospital and the patient’s insurer. In this regard, we construed the language of the “no recourse” provision as precluding the hospital from collecting on a lien from funds awarded to the patient in a settlement or judgment entered in the third-party tort action. Our construction of the “no recourse” provision in Constantine does not conflict with MCG Health, which contained a similarly worded provision and construed it as precluding a hospital from collecting on a lien in circumstances where it would cause “immediate financial loss” to the patient, such as collection from funds awarded to the patient in a settlement. Constantine thus was not implicitly overruled by MCG Health to the extent that it relied on the “no recourse” provision, as the majority recognizes.

It follows that under the reasoning of MCG Health and Constantine, a hospital can contractually waive its right to collect on a hospital lien from funds awarded to the patient in a settlement or judgment entered in a third-party tort action through the inclusion of a “no recourse” provision in the hospital’s contract with the patient’s health insurer. But the contract between MCG Health and Blue Cross/Blue Shield of Georgia in the present case is materially different from the contracts in MCG Health and Constantine because it did not contain a similarly worded “no recourse” provision. Rather, the provision relied upon by appellee Christopher Eight in an effort to hold MCG Health’s lien invalid and uncollectible simply stated that

[MCG Health] agrees to accept [Blue Cross’s] payments, as provided in this Agreement as payment in full for Eligible Services provided to PPO Covered Persons. [MCG Health] may bill PPO Covered Persons for hospital services rendered that are not PPO Covered Services, applicable deductibles, or co-insurance amounts provided in PPO Covered Person’s PPO Membership Agreement .... Without limiting the foregoing, [MCG Health] agrees not to bill PPO Covered Persons for any charge discount amount provided to PLAN.

In contrast to the contracts found in MCG Health and Constantine, the contract at issue here prevented balance-billing but was silent as to what other avenues of recourse were available to MCG Health. Given the absence of a “no recourse” provision, the contract did not preclude MCG Health from pursuing a lien under OCGA § 44-14-470 (b) against any funds awarded to Eight in a settlement or judgment in the third-party tort action. And, as previously noted, the hospital lien statute, standing alone and without any evidence of a contractual waiver of the statute by the hospital, did not preclude MCG Health from pursuing a lien for reasonable charges for hospital care and treatment even if Eight personally owed no debt to MCG Health at the time the lien was filed. Accordingly, I agree with the majority that the trial court erred in invalidating the hospital lien filed by MCG Health under the specific circumstances of this case.

Decided November 22, 2013

Reconsideration denied December 10, 2013

Hull Barrett,'David E. Hudson, for appellant.

Nicholson Revell, Sam G. Nicholson, Harry D. Revell, for appellee.

I am hereby authorized to state that Chief Judge Phipps, Presiding Judge Ellington, Presiding Judge Doyle, and Judges Miller and McFadden join in this special concurrence.

       The lien filed on March 21, 2007, for the unadjusted billed charges of $36,177.68 was extinguished to the extent the hospital’s reasonable charges were paid. Despite the unpaid charges for the lien period from February 4 to February 20,2007, the Hospital amended the lien on September 24, 2008, to reflect only unpaid deductibles or co-pays. We need not determine whether the amended lien was perfected under OCGA § 44-14-471. In any event, any issue as to unpaid charges stated in the amended lien was settled in the June 2012 consent order.

       The provision of the contract stated in relevant part:
      Hospital hereby agrees that in no event, including, but not limited to nonpayment by HMHS or the Government, HMHS insolvency or breach of this Agreement, shall Hospital bill, charge, collect a deposit from, seek compensation, remuneration or reimbursement or have any recourse against Beneficiaries, or persons other than HMHS acting on their behalf, for Covered Services provided pursuant to this Agreement.

      (Emphasis supplied.) MCG Health, 288 Ga. at 783. For ease of reference, the italicized provision of the contract will be referred to as the “no recourse” provision.

       The provision of the contract stated in relevant part:
      PAYMENT. [MCG] shall hill [Aetna] for Hospital Services rendered to Members according to the terms of this Agreement____[MCG] hereby agrees that in no event, including, hut not limited to non-payment by [Aetna,] [Aetna’s] insolvency[,] or breach of this Agreement, shall [MCG] bill, charge, collect a deposit from, seek remuneration or reimbursement from, or have any recourse against Member or persons other than [Aetna] acting on their behalf for services listed in this Agreement.

      (Emphasis supplied.) Constantine, 275 Ga. App. at 129.

       I agree with the majority that Constantine was implicitly overruled, by MCG Health to the extent that it held that a hospital cannot pursue a lien under OCGA § 44-14-470 (b) in the absence of an outstanding debt owed to the hospital under the contract between the hospital and the patient’s health insurer.


author: Ray, Judge.

text:
    A13A1159.
    CANTON PLAZA, INC. et al. v. REGIONS BANK, INC.
    (749 SE2d 825)
   Ray, Judge.

Canton Plaza, Inc. and Chaim Oami (“the plaintiffs”) appeal from an award of attorney fees and expenses in favor of Regions Bank, Inc. (“the Bank”) under OCGA § 9-11-68, Georgia’s offer of settlement statute. The plaintiffs contend that the trial court erred in awarding the Bank its attorney fees and expenses because the Bank failed to segregate its recoverable fees and expenses from those which were nonrecoverable, and because the award, as against plaintiff Oami, was inappropriate. For the following reasons, we affirm in part, vacate in part, and remand the case with direction.

The underlying facts are more fully set forth in Canton Plaza v. Regions Bank, 315 Ga. App. 303 (732 SE2d 449) (2012), where we affirmed the trial court’s grant of directed verdicts on the parties’ respective claims. In pertinent part, the facts show that the plaintiffs filed a complaint against the Bank, asserting claims for breach of contract and wrongful foreclosure. The Bank asserted counterclaims against the plaintiffs for attorney fees and litigation expenses based on the contractual provisions of the underlying loan documents. Prior to trial, the Bank made a written offer of settlement in the amount of $15,000, which the plaintiffs did not accept. When the case proceeded to trial, the Bank was awarded a directed verdict as to the plaintiffs’ claims, and the plaintiffs were awarded a directed verdict on the Bank’s counterclaims. Thereafter, the Bank filed a motion for attorney fees and expenses pursuant to OCGA § 9-11-68 (b) (1), based on the plaintiff’s earlier rejection of its pre-judgment offer of settlement. After a hearing, the trial court granted the Bank’s motion and awarded it $78,500 for attorney fees and litigation expenses.

Under OCGA § 9-11-68 (a), a party may serve the opposing party with a written offer to settle a tort claim for a specified amount of money in exchange for the dismissal of the claim or entry of judgment in the specified amount.

OCGA § 9-11-68 (b) (1) provides:

If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability. . . .

1. The plaintiffs argue that the trial court erred in granting the Bank’s motion for attorney fees and expenses under OCGA § 9-11-68 because the plaintiffs had asserted claims for both breach of contract and wrongful foreclosure in their complaint, and because the Bank had failed to segregate the attorney fees and expenses it incurred in defending against the wrongful foreclosure claim from the fees and expenses it incurred in defending against the breach of contract claim. Specifically, the plaintiffs argue that the Bank was only entitled to fees and expenses associated with the wrongful foreclosure (tort) claim. However, the plaintiffs’ breach of contract claim is premised entirely on the allegations that the Bank improperly initiated foreclosure proceedings. Therefore, we agree with the trial court’s finding that the “[plaintiffs’ case was for all practical purposes a tort action arising from an alleged attempted wrongful foreclosure.” Furthermore, the record shows that counsel for the Bank was required to perform the same tasks to prepare and present its defense at trial, irrespective of the specific claims asserted by the plaintiffs. Therefore, we find that the plaintiffs’ argument lacks merit.

2. The plaintiffs argue that the trial court erred in finding plaintiff Oami liable for attorney fees and expenses under OCGA § 9-11-68. The plaintiffs contend that Oami was merely a guarantor of the loan for the property at issue and, because he had no interest in the subject property, he could not bring a valid wrongful foreclosure (tort) claim against the Bank. Pretermitting whether Oami had standing to assert the wrongful foreclosure claim, the record is quite clear that he joined in asserting the claim. If Oami did not have a valid claim against the Bank for wrongful foreclosure, that fact cannot serve as a basis for disallowing the recovery of attorney fees and expenses associated in defending his claim. Indeed, “[t]he clear purpose of [OCGA § 9-11-68] is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation.” (Citation and punctuation omitted; emphasis supplied.) Smith v. Baptiste, 287 Ga. 23, 29 (2) (694 SE2d 83) (2010). Therefore, we find no merit in the plaintiffs’ argument.

3. The plaintiffs also argue that the award was improper because the Bank failed to segregate the fees and expenses associated with prosecuting its counterclaims. We agree.

In this case, the Bank’s right to attorney fees and litigation expenses under OCGA § 9-11-68 was established by the prior offer of settlement and the subsequent directed verdict of no liability with regard to the plaintiffs’ claims. But in order for the Bank to recover attorney fees and litigation expenses under this statute, the reasonableness of its requested fees and expenses must be shown. See OCGA § 9-11-68 (b) (1).

Here, the Bank’s counsel did not testify as to how much of the total amount billed was associated with defending against the plaintiffs’ claims as opposed to prosecuting its unsuccessful counterclaims. Further, it is not possible to discern from the billing statements submitted by the Bank’s counsel how much of the time and expenses billed were attributable to the defense of the plaintiffs’ claims. See Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 738 (1) (458 SE2d 711) (1995) (no evidence was presented from which the factfinder could determine what portion of time spent was attributable to recoverable fees); Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993) (trial court could not determine what were recoverable fees where time sheets included many entries consisting only of statements that a conference was held, a letter was written, or a telephone call was made). Compare Doe v. HGI Realty 254 Ga. App. 181, 184 (561 SE2d 450) (2002) (award of attorney fees under OCGA § 9-15-14 was proper where majority of the time sheets submitted by counsel related solely to counsel’s work regarding the discovery abuse matter at issue, and trial court stated in its order that it was able to ascertain the fees associated with the discovery abuse).

Decided October 15, 2013

Reconsideration denied December 10, 2013.

Stevens & Stevens, Ronald S. Stevens, for appellants.

Parker, Hudson, Rainer & Dobbs, William J. Holley II, for appellee.

Although we note that the trial court’s award was substantially lower than the amount requested by the Bank, the trial court did not indicate whether it was able to ascertain the fees and expenses attributable to the Bank’s defense of the plaintiffs’ claims, and we have no way of determining whether the trial court improperly considered portions of the fees and expenses which may have been nonrecoverable in making its award in this case. As there was no evidence from which the trial court could determine what portion of the fees was attributable to the Bank’s defense of the plaintiffs’ claims and because a determination of the amount of fees cannot be based on guesswork, the trial court’s judgment as to the amount of the attorney fees and expenses must be vacated. This case is remanded for an evidentiary hearing to determine the amount of fees and expenses that are recoverable. See Southern Cellular Telecom, supra; Mills v. Parker, 267 Ga. App. 334, 335 (2) (599 SE2d 301) (2004).

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

Barnes, P. J., and Miller, J., concur.

       OCGA § 9-11-68 was enacted as part of the Tort Reform Act of 2005, Ga. L. 2005; it became effective on February 16,2005. See Fowler Properties v.Dowland, 282 Ga. 76, 77 (1) (646 SE2d 197) (2007). The Code section was amended by Ga. L. 2006, p. 589, § 1/HB 239, effective April 27, 2006.


author: BARNES, Presiding Judge.

text:
    A13A1491.
    DUNCAN v. MORELAND et al.
    (751 SE2d 139)
   BARNES, Presiding Judge.

Mary Teresa Duncan appeals from the order of the trial court granting summary judgment to her aunts, Etta Sue Moreland and Wilma E. Wilson, and dismissing her challenge to the probate court’s order admitting her grandmother’s will to probate in solemn form. Upon our review and for the reasons that follow, we affirm.

On May 27, 2008, Moreland and Wilson, two of the decedent’s three daughters, filed a petition to probate their mother’s will. The will appointed Moreland, Wilson, and their sister, Evelyn Duncan, as co-executors. Duncan was served with a copy of the petition and will by certified mail. On September 16,2009, Evelyn Duncan’s daughter, Teresa, filed a caveat to the will alleging that she and her mother possessed a later-dated valid will, that the decedent had been under undue influence and lacked the mental capacity to execute the will propounded by Moreland and Wilson, that Evelyn Duncan should be appointed executor of the decedent’s estate, and that the petition to probate the will should be denied.

After a hearing on the caveat, the trial court found in favor of Moreland and Wilson and on December 16, 2011, entered an order accepting their petition to probate the will and issued Letters Testamentary to them as co-executors. However, on December 28,2011, the trial court entered an order rescinding Moreland and Wilson’s Letters Testamentary. The probate court’s order instructed that “no business on behalf of [the decedent’s] estate shall be conducted from the date of said Order ... until new Letters of Testamentary have been issued by the court.” The court set the date of February 1, 2012, to appoint the three sisters as co-executors.

On January 31, 2012, Moreland and Wilson filed a “Petition for Removal and/or Denial of Appointment of Co-Administrator]” alleging that Evelyn Duncan was unfit to serve as a co-executor of the estate. Following court-ordered mediation that ended in an impasse, Moreland and Wilson withdrew their petition to deny Evelyn Duncan’s appointment as co-executor of the estate. Thereafter, on July 2, 2012, Teresa Duncan filed a “Motion for Clarification” to determine whether it was “the intent of the Court on December 28, 2011 to rescind the entire Order of December 13, 2011 and for the Court to retain jurisdiction of the matter until further proceedings could be carried out.” Moreland and Wilson apparently maintained that Duncan did not have the right to appeal the validity of the will because the December 28 order appeared to only rescind the Letters Testamentary, not the court’s finding that the will was valid. Duncan asked that the court re-enter its December 13, 2011 order admitting the will to probate, but name all three sisters as co-executors rather than just Moreland and Wilson.

The following day, July 3, 2012, the probate court issued Letters Testamentary to Moreland, Wilson and Evelyn Duncan, naming the three sisters co-executors of their mother’s estate. The document further stated that on “July 3, 2012 at a regular term of the Probate Court, the last Will and Testament dated May 11, 2005 of [the decedent]... was legally proven in SOLEMN form and was admitted to the record by order.” (Emphasis supplied.)

The probate court initially set a hearing on the motion for clarification on July 18, 2012, but then rescheduled it for August 6, 2012. It also entered an order purporting to grant Duncan an additional five days to appeal the probate court’s July 3 order, should the court find against her in ruling on the motion for clarification. Following the hearing, the probate court entered an order on August 8, 2012, finding that the date that triggered the running of Duncan’s 30 days to appeal was

not December 28, 2011 because those letters issued were rescinded by the court on December 28, 2011. The correct date for the appellate process to begin should be July 3,2012 when the corrected Letters of Testamentary... to [Moreland, Wilson, and Evelyn Duncan] were issued by this court.

On August 9,2012, Duncan filed her appeal from the July 3,2012 order to superior court. Subsequently, Moreland and Wilson filed a motion for summary judgment in which they maintained that Duncan’s appeal was untimely because it was filed more than 30 days after the probate court’s December 13, 2011 order admitting the will into probate. They also argued that the probate court did not have authority to extend the period for filing the appeal. The superior court granted the motion, agreeing that Duncan’s notice of appeal was untimely. It found:

On December 13, 2011 the Probate Court . . . entered an order finding the last will and testament of [the decedent] to be valid. On December 16, 2011 the Probate Court also appointed Moreland and Wilson as co-administrators. On December 28,2011 the Probate Court rescinded and vacated only the appointment of Moreland and Wilson but left in place the order of December 13, 2011 finding the will valid. No appeal was filed by the Appellant/Respondent from the Probate Court’s order of December 13, 2011 until August 9, 2012.... [T]he appeal of the Probate Court’s ruling that the will is valid was filed more than thirty days after it was filed. The time to appeal could not be extended by the Probate Court through its order of August 8, 2012.

(Emphasis supplied.)

On appeal, Duncan contends that the time to file an appeal did not begin running until the probate court made its final decision on the case, and thus, contrary to the trial court’s ruling, the December 13, 2011 order was not a final appealable order because in its December 28, 2011 order, the probate court had rescinded the Letters Testamentary it issued to Moreland and Wilson. Duncan further maintains that, because the Letters Testamentary were rescinded, an appeal of the December 13, 2011 order could not have proceeded because as of December 28, 2012 there was no one to represent the estate.

Decided November 6, 2013

Reconsideration denied December 10, 2013.

Lawrence A. Stagg, for appellant.

Glenn E. Roebuck III, for appellees.

“An appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.” OCGA § 5-3-2 (a). Pursuant to OCGA § 5-3-20 (a), “[a]ppeals to the superior court shall be filed within 30 days of the date the judgment, order, or decision complained of was entered.” “The requirement is jurisdictional, so that a superior court lacks jurisdiction when such an appeal is filed beyond the time allowed by law.” Fortson v. Tucker, 307 Ga. App. 694, 696 (705 SE2d 895) (2011). “Granting extensions of time as permitted under certain circumstances by the Civil Practice Act does not apply to periods of time which are definitely fixed by other statutes.” McClure v. Dept. of Transp., 140 Ga. App. 564 (231 SE2d 532) (1976). In such instances, “[n]ot even the trial court is empowered to extend the period of time for filing the notice of appeal.” (Citation and punctuation omitted.) Chambers v. Dept. of Transp., 172 Ga. App. 197 (1) (322 SE2d 366) (1984).

In this case, pretermitting whether the final order was December 13, 2011 or July 3, 2012, the superior court correctly held that the probate court had no authority to extend the time to appeal beyond the statutorily-prescribed period of 30 days. See In re Estate of Dasher, 259 Ga. App. 201, 202 (576 SE2d 559) (2003) (appeal from probate court order untimely where party filed notice of appeal to superior court 33 days after entry of order appealed from). Accordingly, the probate court’s order extending the period beyond that provided for in the statute was of no legal consequence, and the superior court did not err in granting summary judgment to Moreland and Wilson.

Judgment affirmed.

Miller and Ray, JJ., concur.