author: BARNES, Presiding Judge. RAY, Judge,

text:
    A13A0299.
    MARINO et al. v. CLARY LAKES HOMEOWNERS ASSOCIATION, INC.
    (747 SE2d 31)
   BARNES, Presiding Judge.

Clary Lakes Homeowners Association, Inc. (the “Association”) brought this action for damages and injunctive relief seeking to enforce a restrictive covenant, which concerned the parking of vehicles in garages and the use of garages for storage, against homeowners Joseph and Patricia Marino. The Marinos filed an answer and counterclaims, acknowledging that they were in violation of the restrictive covenant but contending that the Association’s enforcement action and the covenant were invalid on several grounds. Following discovery, the trial court denied the Marinos’ motion for summary judgment and granted in part the Association’s cross-motion for summary judgment. The trial court determined that the Association’s enforcement action was not barred by the two-year statute of limitation; that the restrictive covenant was exempt from the written consent requirement imposed by OCGA § 44-5-60 (d) (4); that the covenant was validly enacted and enforceable against the Marinos under the Georgia Property Owners’ Association Act (the “POA Act” or the “Act”), OCGA § 44-3-220 et seq.; that the Marinos were estopped from challenging the validity and enforceability of the covenant; that there was no evidence that the Association’s denial of the Marinos’ request for a variance was arbitrary, capricious, or done in bad faith; and that the Association rather than the Marinos was entitled to attorney fees under the “prevailing party” provision of the neighborhood covenants. The Marinos now appeal from the trial court’s summary judgment order.

For the reasons discussed below, we conclude that for the restrictive covenant at issue to be enforceable against the Marinos, they had to agree to the covenant in writing pursuant to OCGA § 44-5-60 (d) (4), or the covenant had to be approved by at least two-thirds of the votes in the Association pursuant to OCGA § 44-3-226 (a) of the POA Act. Because the uncontroverted evidence shows that neither condition was met in this case, the restrictive covenant was unenforceable against the Marinos, and the trial court erred in concluding otherwise. Consequently, we reverse the trial court’s grant of summary judgment to the Association, and its denial of summary judgment to the Marinos, on the Association’s claims for damages and injunctive relief predicated on the alleged breach of the restrictive covenant, and we remand the case with direction for the trial court to enter summary judgment in favor of the Marinos on those claims. We likewise reverse the trial court’s grant of summary judgment to the Association on its claim for attorney fees, but we affirm the denial of summary judgment to the Marinos on their competing claim for attorney fees because a ruling on the fees issue would be premature at this point in the litigation.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

(Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). With these principles in mind, we turn to the record in the present case.

The Original and Amended Declaration. The record shows that the original declaration of covenants for the Clary Lakes subdivision was recorded on August 7, 1987 in the Cobb County, Georgia land records (the “Original Declaration”). The Association, previously known as the Clary Lakes Recreation Association, Inc., was charged with enforcing the protective covenants contained in the Original Declaration. Among other protective covenants, Paragraph 17 of the Original Declaration provided: “Garages may be attached or detached, but must be large enough to accommodate at least two automobiles and garage interiors shall be sheetrocked and painted.” The Original Declaration did not contain any covenants requiring owners to park their vehicles in their garages and did not restrict garages from being used for storage.

The Original Declaration was amended from time to time over the years, including in 1988, 1991, 1992, and 1998. The 1998 amendment to the Original Declaration included a new Paragraph 22, which provided that any further amendment would require the approval of a majority of the members of the Association.

From 2001 to 2003, there were general discussions in the neighborhood about further changes to the Original Declaration. Ultimately, a majority of the owners and Association members voted for and approved an Amended and Restated Declaration of Protective Covenants for Clary Lakes (the “Amended Declaration”) and Amended and Restated Bylaws of Clary Lakes Homeowners Association, Inc. (the “Bylaws”). The Amended Declaration and Bylaws were recorded on October 14, 2003 in the Cobb County land records. The Amended Declaration included a provision stating that the Association and the Clary Lakes subdivision were submitting to application of the POA Act.

The Amended Declaration replaced the Original Declaration in its entirety. One of the new provisions contained in the Amended Declaration, which is at the center of the present litigation, involved the parking of vehicles in garages and the use of garages for storage. Specifically, Section 11 (i) of the Amended Declaration provided:

Garage Parking. All vehicles owned or used on a regular basis by Owners or Occupants shall be parked in garages to the extent that garage space is available and vehicles fit in the garage. Garages shall not be used for storage on a regular basis so that they become unavailable for parking cars therein. The Covenant Committee shall have the power to grant a variance to any Owner or Occupant who demonstrates special circumstances why he cannot comply with this requirement. Application for this variance must be made in writing to the Covenant Committee. The variance to the Owner or Occupant must be in writing and specify the term of the required variance.

(the “Garage Use Covenant”).

The Marinos. The Marinos purchased their home in the Clary Lakes subdivision in 1994, when Paragraph 17 of the Original Declaration provided the only restriction on garages. Because their home did not have a basement, the, Marinos used their garage for storage space and parked their cars in the driveway, as permitted by the Original Declaration.

After the recording of the Amended Declaration in October 2003, the Marinos continued to use their garage for storage and to park their cars in the driveway in violation of the Garage Use Covenant. The Marinos did not vote in favor of the Amended Declaration and never gave their written consent to the Amended Declaration, including the Garage Use Covenant.

In January 2009, the Association’s Covenant Committee issued a “Notice of Covenant Violation” letter to the Marinos regarding their violation of the Garage Use Covenant. The Marinos responded by submitting a written appeal to the Association’s Appeals Committee. The Appeals Committee came to a decision that a violation of the Garage Use Covenant had occurred but granted the Marinos a temporary variance to allow them time to come into compliance. The Marinos requested a permanent variance from the Garage Use Covenant, but their request was denied. Ultimately, the Association, pursuant to the terms of the Amended Declaration, began to levy daily fines against the Marinos for violating the Garage Use Covenant on September 1, 2010. The Marinos refused to pay the fines, which continued to accrue.

On April 15, 2011, the Association commenced this suit for damages, injunctive relief, and attorney fees, alleging, among other things, that the Marinos had been and remained in violation of the Garage Use Covenant and owed fines that had continued to accrue since September 1, 2010. The Marinos filed an answer, raising several defenses and counterclaims. The Marinos admitted that they used their garage for storage and parked their vehicles in their driveway but asserted that the Association’s enforcement action was barred by the two-year statute of limitation; that the Garage Use Covenant was unenforceable against them because they had not given their written consent to it under OCGA § 44-5-60 (d) (4) and it had not been approved by at least two-thirds of the votes in the Association under the POA Act; and that the Association’s denial of their request for a permanent variance had been arbitrary, capricious, and done in bad faith. Like the Association, the Marinos sought attorney fees.

The parties filed cross-motions for summary judgment. The trial court ruled that the uncontroverted evidence of record showed that the Association’s enforcement action was not barred by the two-year statute of limitation; that the Garage Use Covenant was not subject toeitherthewrittenconsentrequirementimposedbyOCGA § 44-5-60 (d) (4) or the two-thirds voting requirement imposed by the POA Act; and that the Association’s denial of the Marinos’ request for a permanent variance had not been arbitrary, capricious, or done in bad faith. Accordingly, the trial court denied summary judgment to the Marinos and granted summary judgment to the Association on its claims for damages for the nonpayment of accrued fines, injunctive relief, and attorney fees. The Marinos now appeal.

1. The Marinos first contend that the trial court erred in ruling that the Association’s enforcement action was not barred by the two-year statute of limitation. They maintain that the limitation period began to run on October 14, 2003, the date when the Garage Use Covenant was recorded, because they were already using their garage for storage and parking their vehicles in their driveway at that time. Consequently, the Marinos contend that the limitation period expired on October 14, 2005, thereby barring the Association’s enforcement action, which was not filed until April 15, 2011. We disagree.

All actions alleging the violation of a restrictive covenant, except for violations for failure to pay assessments or fees, must be brought within two years after the right of action accrues. See OCGA § 9-3-29 (a). The right of action accrues “immediately upon the violation of the covenant restricting lands to certain uses.” OCGA § 9-3-29 (c). Interpreting these statutory provisions, we have held that “a right of action based on a covenant violation caused by a permanent fixture accrues when the violation first results.” Black Island Homeowners Assn. v. Marra, 263 Ga. App. 559, 561 (1) (b) (588 SE2d 250) (2003). See Helmley v. Liberty County, 242 Ga. App. 881, 883-884 (2) (531 SE2d 756) (2000) (limitation period on claim that commercial fishing business violated restrictive covenant commenced when business was constructed on property, more than 20 years before plaintiffs filed suit). In contrast, a right of action based on a covenant violation “caused by a repetitive act accrues each time the distinct and separate act that constitutes an alleged breach occurs.” 2 Pindar’s Ga. Real Estate Law & Procedure § 19:193, n. 1 (7th ed.) (updated April 2013). See Black Island Homeowners Assn., 263 Ga. App. at 561 (1) (b) (mowing of undeveloped property in violation of restrictive covenant was a “distinct, separate act that constitutes an alleged breach each time it occurs”).

The present case does not involve a permanent fixture. Under the Garage Use Covenant, a violation occurs when an owner fails to park his vehicles in his garage under circumstances where storage prevents garage parking. It is undisputed that the physical dimensions of the Marinos’ garage are adequate for the parking of their vehicles but that they use the space for storage of other transportable items. The contents stored in the garage have fluctuated, and the Marinos’ vehicles have not been permanently parked in their driveway but rather are driven to and from the property. Consequently, we conclude that each act of the Marinos parking their vehicles on their property other than in their garage, which was being used for storage, was a separate and distinct act that gave rise to a new cause of action for an alleged violation of the Garage Use Covenant. See Black Island Homeowners Assn., 263 Ga. App. at 561 (1) (b). The trial court thus committed no error in ruling that the Association’s enforcement action had been properly brought within the two-year statute of limitation.

2. The Marinos further contend that the trial court erred in ruling that the Garage Use Covenant was not subject to either the written consent requirement imposed by OCGA § 44-5-60 (d) (4) or the two-thirds voting requirement imposed by OCGA § 44-3-226 (a) of the POA Act. Because the Garage Use Covenant amended the Original Declaration in effect when the Marinos purchased their home and imposed a greater restriction on their use of their property, the Marinos argue that the Garage Use Covenant was enforceable against them only if they had given their written consent to it or if at least a two-thirds majority of the Association had approvedit, neither, of which occurred in this case. We agree with the Marinos.

Resolution of the Marinos’ argument turns on our interpretation of several statutes.

When interpreting a statute, we are required to consider the statute as a whole and look for the intent of the legislature. When a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly. We also must endeavor to give each part of the statute meaning and avoid constructions that make some language mere surplusage or meaningless.

(Punctuation and footnotes omitted.) Geico General Ins. Co. v. Hosp. Auth. of Clarke County, 319 Ga. App. 741, 743 (738 SE2d 325) (2013). Furthermore, when interpreting a statute, “[w]e must consider the consequences of any proposed interpretation and not construe the statute to reach an unreasonable result unintended by the legislature.” (Citation and punctuation omitted.) Cardinale v. City of Atlanta, 290 Ga. 521, 524 (722 SE2d 732) (2012). Finally,

a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized whenever possible, so as to ascertain the legislative intendment and give effect thereto.

(Footnote omitted.) Aimwell, Inc. v. McLendon Enterprises, 318 Ga. App. 394, 397 (1) (734 SE2d 84) (2012).

When the question is whether a property owners’ association has been properly established pursuant to the POA Act, the provisions of the Act “and of an instrument recorded pursuant thereto shall be liberally construed in favor of the valid establishment of [the] property owners’ association[.]” OCGA § 44-3-233. On the other hand, when the issue is the more narrow one of the enforceability of a particular covenant that restricts a homeowner’s lawful use and enjoyment of his land, we are mindful that “restrictions on private property are generally not favored in Georgia,” and restrictive covenants “will not be enlarged or extended by construction, . . . any doubt will be construed in favor of the grantee,” and the basis for restricting the owner’s use of his property must be clear and without doubt. (Citation and punctuation omitted.) Canterbury Forest Assn. v. Collins, 243 Ga. App. 425, 427 (1) (b) (ii) (532 SE2d 736) (2000). Guided by these principles, we turn to the statutes at issue in this case.

OCGA § 44-5-60 (d) (4) provides the starting point for determining the enforceability of a restrictive covenant that amends a declaration to impose a greater restriction of the use or development of a property owner’s land. That statute provides that “no change in . . . covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.” In Charter Club on the River Home Owners Assn. v. Walker, 301 Ga. App. 898, 899-900 (689 SE2d 344) (2009), we held that under OCGA § 44-5-60 (d) (4), a property owner who has not consented in writing to an amendment imposing a new, more restrictive covenant on his or her property is not required to follow the amendment, even if the amendment was properly enacted under the amendment provision of the homeowners association’s declaration of protective covenants.

The Charter Club case, however, did not involve a restrictive covenant contained in a declaration of covenants governed by the POA Act, which creates a comprehensive set of rules and procedures for property owners’ associations that affirmatively opt-in to the Act. See OCGA § 44-3-220 et seq. See also 1 Pindar, supra at § 7:17. Notably, OCGA § 44-3-234 of the POA Act states that “[t]he limitations provided in subsection (b) and paragraphs (1), (2), and (4) of subsection (d) of Code Section 44-5-60 shall not apply to any covenants contained in any instrument created pursuant to or submitted to this article.” But OCGA § 44-3-234 cannot be read in isolation; it must be read in connection with other provisions of the Act addressing amendments. See Aimwell, Inc., 318 Ga. App. at 397 (1).

The POA Act defines “instrument” as “the declaration, plats, and plans recorded pursuant to this article,” and further provides that “[a]ny amendment... of any instrument shall, from the time of the recordation of such amendment or certification, be deemed an integral part of the affected instrument so long as such amendment . . . was made in accordance with this article.” OCGA § 44-3-221 (17). In turn, OCGA § 44-3-226 (a) addresses the amendment of an “instrument”:

Except to the extent expressly permitted or required by other provisions of this article, the instrument shall be amended only by the agreement of lot owners of lots to which two-thirds of the votes in the association pertain or such larger majority as the instrument may specify[.]

Taken together, OCGA §§ 44-3-221 (17) and 44-3-226 (a) provide that an amendment to an instrument is deemed part of the instrument and enforceable under the Act only if the amendment is approved by a minimum of a two-thirds majority. When these two statutory provisions are also read in conjunction with OCGA § 44-3-234, it follows that an amendment to an instrument to impose a new restrictive covenant, such as the Garage Use Covenant, is exempted from the application of the written consent requirement of OCGA § 44-5-60 (d) (4) only if the covenant is approved by at least a two-thirds majority.

The Association, however, contends that an exception to the two-thirds voting requirement applied to the adoption of the Garage Use Covenant. As noted above, OCGA § 44-3-226 (a) imposes a two-thirds minimum voting requirement, “[ejxcept to the extent expressly permitted or required by other provisions” of the Act. OCGA § 44-3-222 of the POA Act, relied upon by the Association, addresses such an exception for an amendment made to an existing declaration of covenants to “submit” to governance of the Act. The statute provides:

A property owners’ development shall come into existence upon either the recordation of the declaration pursuant to this article or the amendment of a recorded declaration in accordance with Code Section 44-3-235. Any declaration or amendment intending to bring or avail a development of the benefits and provisions of this article shall state an affirmative election to be so governed. Any original declaration shall be duly executed by or on behalf of all of the owners of the submitted property. Any such amendment to an existing declaration shall be executed in accordance with the terms of the recorded declaration being amended thereby.

(Emphasis supplied.) In turn, OCGA § 44-3-235 (a) provides in relevant part:

... This article shall also apply to any association of owners subject to a recorded declaration of covenants upon property, which covenants are administered by an owners’ association in which membership is mandatory for all owners of lots in the development, which declaration is amended in accordance with Code Section 44-3-222 in order to submit the property owners’ association to this article; provided, however, that any amendment must conform the instrument creating the property owners’ association to this article, and the property owners’ development shall thereafter be deemed to be submitted to this article.

(Emphasis supplied.)

Construed together, OCGA §§ 44-3-222 and 44-3-235 (a) provide that when an existing declaration is amended to include a provision affirmatively electing to be governed by the POA Act, such an amendment to the existing declaration is to be adopted in accordance with the voting requirements found in the existing declaration itself. Thus, where, as here, the existing declaration (i.e., the Original Declaration) allowed for the adoption of amendments by a majority vote of the members of the property owners’ association, an amendment affirmatively submitting the association to governance by the POA Act could be accomplished by majority vote.

It does not follow, however, that an amendment imposing a new restrictive covenant on property owners, adopted at the same time as the amendment submitting the property owners’ association to governance under the POA Act, can itself be accomplished by majority vote. OCGA § 44-3-222 carves out an exception to the two-thirds voting requirement imposed by the POA Act only for an “amendment intending to bring or avail a development of the benefits and provisions of [the Act],” and an amendment imposing a new restrictive covenant on property owners does not fall within that category of amendment. Moreover, OCGA § 44-3-235 (a), when read together with the other provisions of the POA Act, contemplates that the exception to the two-thirds voting requirement applies only to amendments that “conform the instrument” to the Act, not to additional amendments that go beyond conforming the instrument to the terms and provisions of the Act, such as an amendment imposing a new restrictive covenant.

For these combined reasons, we conclude that the Garage Use Covenant was subject to the two-thirds voting requirement imposed by OCGA § 44-3-226 (a) of the POA Act. And because a two-thirds majority never approved the Garage Use Covenant, OCGA § 44-3-234 of the Act did not exempt the Garage Use Covenant from the prohibition against imposing greater restrictions on the use of land without the property owner’s consent that is set forth in OCGA § 44-5-60 (d) (4). Accordingly, in light of the uncontroverted evidence showing that the Marinos never gave their written consent to the Garage Use Covenant and a two-thirds majority never approved it, the Garage Use Covenant is unenforceable against them as a matter of law, and the trial court erred in ruling otherwise.

3. The Marinos also contend that the trial court erred in ruling that they were precluded from challenging the enforceability of the Garage Use Covenant under the doctrine of promissory estoppel because they had abided by other covenants contained in the Amended Declaration. Again, we agree with the Marinos.

“Landowners may be bound to uphold legally insufficient covenants under the doctrine of promissory estoppel[.]” Duffy v. The Landings Assn., 245 Ga. App. 104, 108 (536 SE2d 758) (2000). A promissory estoppel claim requires a showing of the following: (1) the defendant made a promise; (2) the defendant should have known that the plaintiff would rely on the promise; (3) the plaintiff did in fact rely on the promise to his or her detriment; and (4) injustice can be avoided only by enforcing the promise. Canterbury Forest Assn. v. Collins, 243 Ga. App. 425, 428 (2) (532 SE2d 736) (2000). See OCGA § 13-3-44 (a). A promise made by the defendant thus is an essential element of a promissory estoppel claim, and “while the promise need not meet the formal requirements of a contract, it must, nonetheless, have been communicated with sufficient particularity to enforce the commitment.” Mooney v. Mooney, 245 Ga. App. 780, 783 (538 SE2d 864) (2000). It follows that defendant landowners “cannot be bound by a legally ineffective covenant to which they never agreed.” Duffy, 245 Ga. App. at 108.

Here, the uncontroverted evidence shows that the Marinos never signed, voted for, or otherwise agreed to the adoption of the Garage Use Covenant, and they have continued to use their garage for storage and to park cars in their driveway. And while the Marinos may have chosen to abide by other covenants contained in the Amended Declaration instead of risking an enforcement action by the Association for those additional covenant violations, that did not in any manner imply that the Marinos were agreeing that the Garage Use Covenant was enforceable against them. Nor is there any evidence that the Association relied on any promise made by the Marinos regarding the Garage Use Covenant to the detriment of the Association.

The Association argues, however, that the Marinos are estopped from challenging the enforceability of the Garage Use Covenant because they sought a permanent variance from the Association. But the record reflects that in seeking the variance, the Marinos specifically noted that they had lived in their home prior to the Garage Use Covenant and believed that it could not be validly enforced against them. Thus, in seeking a variance, the Marinos clearly were not agreeing to the validity and enforceability of the Garage Use Covenant.

In light of this record, the trial court erred in concluding that the Marinos were precluded from challenging the enforceability of the Garage Use Covenant under the doctrine of promissory estoppel. Compare Canterbury Forest Assn., 243 Ga. App. at 428 (2) (landowners were estopped from challenging validity of renewal of restrictive covenants even though renewal was legally ineffective, where they had signed an agreement extending the term of the covenants and had continued to abide by and enforce the covenants in reliance on their continued viability).

4. The Marinos also make the alternative argument that if the Garage Use Covenant was enforceable against them, the trial court erred in concluding that there was no evidence to support their contention that the Association’s failure to grant them a permanent variance was arbitrary, capricious, and done in bad faith. In light of our decision supra in Divisions 2 and 3 that the Garage Use Covenant was unenforceable against the Marinos and that they were not estopped from making that argument, the Marinos’ enumeration of error regarding the failure to grant a permanent variance is moot and need not be addressed.

5. Lastly, the Marinos contend that the trial court erred in granting summary judgment to the Association and denying it to the Marinos on their competing claims for attorney fees under the “prevailing party” provision of the Amended Covenants. Because the trial court erred in granting summary judgment to the Association on its claims for damages and injunctive relief for breach of the Garage Use Covenant, the trial court likewise erred in granting the Association summary judgment on its claim for attorney fees.

However, the trial court did not err in denying summary judgment to the Marinos on their claim for attorney fees. The Association has a separate claim against the Marinos for the alleged breach of a settlement agreement that remains pending in the trial court, and the outcome with regard to that claim may affect who is deemed the “prevailing party” in this litigation. It follows that an award of attorney fees to either party would be premature at this point in the litigation.

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

Miller, J., concurs. Ray, J., concurs fully and specially.

RAY, Judge,

concurring fully and specially.

Although I fully concur in the majority’s opinion, I write separately to address arguments put forth by the Appellee (the “Association”) regarding the interplay between OCGA §§ 44-5-60 (d) (4) and 44-3-220 et seq., the Georgia Property Owners’ Association Act (the “POA”). The election to submit to the POA was pursuant to a majority vote of the Association’s members in 2003, the same vote which also saw the adoption of the restrictive “Garage Use” provision.

The Association argued and the trial court accepted that because the two actions were adopted simultaneously and in the same document, that the Garage Use provision was not subject to the requirements of OCGA § 44-5-60 (d) (4) or the two-thirds vote requirement found in the POA, OCGA § 44-3-226. This clearly cannot be so.

The Association may not eviscerate the statutes, picking and choosing which provisions it chooses to follow. When the POA election occurred, it was pursuant to OCGA § 44-3-222, which requires the adoption amendment to “be executed in accordance with the terms of the recorded declaration being amended thereby.” In other words, if a preexisting declaration exists, the vote takes place pursuant to procedure set forth in the declaration. The preexisting declaration, as of 1998, required a majority vote of the Association members to change the covenants. However, OCGA § 44-5-60 (d) (4) still applies, making any covenant imposing a greater restriction on the land unenforceable as to affected owners who do not agree in writing.

The Association obviously disfavors the application of OCGA § 44-5-60 (d)(4), and it seeks to avoid it by pointing to OCGA § 44-3-234 of the POA, which states that OCGA § 44-5-60 (d) (4) does not apply to “any covenants contained in any instrument... submitted to this article.” However, this provision of the POA can only apply after the POA is adopted, since the POA is unenforceable to homeowners’ associations who have not properly submitted to its terms. Assuming the Association has completed its conversion to the POA, then the POA provision of OCGA § 44-3-226 must also apply. Because OCGA § 44-3-226 requires a two-thirds majority vote to pass an amendment to the covenants and the Garage Use provision only received a bare majority vote, the Garage Use restriction would not be enforceable against any association member, let alone those who did not agree in writing. Effectively, OCGA § 44-3-234 and the rest of the POA is a package deal that only becomes enforceable after an association amends its declaration to come into the POA.

If the Garage Use and the POA provisions are adopted one before the other, the Association runs into another predicament, which is also fatal to its Garage Use provision. If the Association adopts the Garage Use provision first, then OCGA § 44-5-60 controls and the Marinos must agree in writing so as to be bound by the provision. If the Association adopts the POA first, then OCGA § 44-5-60 no longer hinders the Association; however, the POA § 44-3-226 requiring a two-thirds majority vote also kicks in, thus thwarting the Association’s ability to enforce the Garage Use provision against the Mari-nos. The Association cannot enforce the Garage Use provision under either scenario.

Decided July 12, 2013

Moore & Reese, Julie A. Liberman, for appellants.

Lueder, Larkin & Hunter, John T. Lueder, Brendan R. Hunter, Cynthia C. Hodge, for appellee.

       The Marinos do not argue that the failure to enforce the Garage Use Covenant at an earlier date waived the Association’s right to seek enforcement, and thus we do not address the issue of waiver.

       The trial court also concluded that the Marinos were estopped from challenging the Garage Use Covenant because the Amended Declaration contained a provision stating that any amendment not challenged within one year of its recording would be presumed to be validly adopted, and the Garage Use Covenant was not challenged by the Marinos during that time period. However, the language in the Amended Declaration created only a rebuttable presumption, see OCGA § 44-3-226 (f), and the Marinos overcame that presumption and showed that the Garage Use Covenant was unenforceable against them as a matter of law, as explained supra in Division 2. The trial court therefore erred in ruling that the Marinos were estopped from challenging the Garage Use Covenant based on the rebuttable presumption created by the Amended Declaration.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A13A0348.
    BONDS et al. v. NESBITT.
    (747 SE2d 40)
   McFADDEN, Judge.

Deborah Bonds sued Dr. Reginald Charles Nesbitt for the death of her husband, alleging that Dr. Nesbitt failed to provide necessary emergency treatment. The trial court granted Dr. Nesbitt partial summary judgment, ruling that OCGA § 51-1-29.5 applies. Under that statute, a plaintiff must prove gross negligence by clear and convincing evidence to recover in medical malpractice actions arising out of the provision of emergency medical services.

Bonds appeals, arguing that the cause of action does not arise out of the provision of emergency services but instead out of Dr. Nesbitt’s failure to provide appropriate emergency services. Consequently, she argues, the statute does not apply, she need only prove her case by a preponderance of the evidence, and a jury may hold Dr. Nesbitt liable if it finds that he acted negligently. Bonds also challenges rulings allowing testimony of a defense expert witness, excluding testimony of one of her expert witnesses, and allowing Dr. Nesbitt to depose a plaintiff’s expert for a second time.

We find that the trial court correctly ruled that the undisputed evidence shows that at least some of Dr. Nesbitt’s treatment of Mr. Bonds arose in the context of the provision of emergency medical services, thereby triggering application of the statute. But the evidence is conflicting on the issue of whether Mr. Bonds at some point became stable and capable of receiving non-emergency medical services, thereby triggering an exception to the statute. Accordingly, we affirm in part and reverse in part the trial court’s summary judgment that OCGA § 51-l-29.5appliestoMrs.Bonds’cause of action. Because the trial court did not abuse its discretion in its expert-witness rulings or its ruling on the deposition issue, we affirm those rulings.

1. OCGA § 51-1-29.5.

We review the grant of summary judgment de novo, viewing the evidence in the record, as well as all inferences that might reasonably be drawn from that evidence, in the light most favorable to the non-moving party. Cowart v. Widener, 287 Ga. 622, 624 (1) (697 SE2d 779) (2010). Viewed in this light, the evidence shows that on Friday, January 12, 2007, Billy Curtis Bonds was diagnosed with pneumonia. The following Tuesday evening, he had not improved; he had vomited repeatedly and was experiencing nausea and dizziness. Mrs. Bonds drove her husband to the hospital. They arrived at the hospital at 7:30 p.m., and Mr. Bonds was triaged at 7:35 p.m. He complained of abdominal pain and that he was nauseated, vomiting and dizzy. The triage assessment documentation included a section for the triage nurse to indicate the level of potential threat, giving two applicable choices: “none apparent” and “requires immediate life saving intervention,” which applies, for example, when someone is not breathing or does not have a pulse. The nurse selected “none apparent.” The document also had a section to rate “initial acuity,” with a range from one, meaning the most acute, to five, meaning the least acute. The nurse indicated two, which meant that Mr. Bonds needed to go straight back to the emergency room to see a doctor as soon as possible.

At 7:45 p.m. Mr. Bonds was taken to a room in the emergency department where, within 15 minutes, Dr. Nesbitt had initially evaluated him. Dr. Nesbitt ordered the administration of fluids by IV and multiple pain medications, including Dilaudid and morphine. Dr. Nesbitt ordered laboratory blood tests, an EKG, and blood cultures to determine whether Mr. Bonds had a bacterial or yeast infection. Dr. Nesbitt also ordered a CT scan of Mr. Bonds’ abdomen.

According to Dr. Nesbitt, Mr. Bonds was still undergoing evaluation in the emergency department at least until 10:30 p.m. Based on Mr. Bonds’ symptoms and Dr. Nesbitt’s examination, Dr. Nesbitt reached a differential diagnosis that was mainly intra-abdominal, including the possibilities of pancreatitis, cholecystitis, cholelithiasis, gastritis and peptic ulcer disease. At some point, Dr. Nesbitt signed a document to admit Mr. Bonds to the floor, indicating that Mr. Bonds was experiencing acute renal failure and hypertension but that his condition had improved by 11:30 p.m. and that he was stable. While Mr. Bonds was awaiting a room, Dr. Nesbitt continued to treat him at least until 12:44 a.m., when another doctor took over his care. Before he was moved to a room, Mr. Bonds became agitated, tossing on the bed and entangling himself in the wires from the machines. He was moved to a room on the third floor of the hospital at 2:00 a.m. He began thrashing about and complaining that he could not breathe. At 2:41 a.m., Mr. Bonds went into respiratory and cardiac arrest. Mr. Bonds was resuscitated and was moved to the ICU at 3:05 a.m., where he again went into cardiopulmonary arrest. He was pronounced dead at 4:00 a.m.

OCGA § 51-1-29.5 (c) provides:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department..., no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

OCGA § 51-1-29.5 (a) (5) defines “[e]mergency medical care” as

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

Mrs. Bonds argues that whether Dr. Nesbitt provided emergency medical care, and therefore whether the statute applies to her malpractice action against him, is a jury question.

We agree with the trial court that there is no material question of fact that when Dr. Nesbitt began his care of Mr. Bonds, he was providing emergency medical care as defined by OCGA § 51-1-29.5 (a) (5). Mr. Bonds was experiencing a medical condition with acute symptoms of sufficient severity, including pain, repeated vomiting, dizziness and nausea, such that the absence of immediate medical attention could reasonably be expected to result in placing his health in serious jeopardy. This expectation is evidenced by the fact that he was triaged with an acuity level of two, that within 15 minutes of his arrival in a room, Dr. Nesbitt had examined him and ordered the administration of fluids by IV and multiple pain medications, including Dilaudid and morphine, and that Dr. Nesbitt ordered multiple diagnostic tests, including laboratory blood tests, an EKG, blood cultures and a CT scan.

Mrs. Bonds argues that Dr. Nesbitt’s failure to recognize the severity of Mr. Bonds’ condition and to provide the necessary care means that the statute does not apply. We disagree. “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. ...” OCGA § 1-3-1 (a). “The legislative intent is determined from a consideration of the entire statute.” Restina v. Crawford, 205 Ga. App. 887, 888 (424 SE2d 79) (1992).

OCGA § 51-1-29.5 (a) (7) defines “[hjealth care” as “any act or treatment performed or furnished, or that should have been performed or furnished, hy any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” (Emphasis supplied.) OCGA § 51-1-29.5 (a) (9) defines “[hjealth care liability claim” as “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care,... which departure from standards proximately results in injury to or death of a claimant.” (Emphasis supplied.) It is clear from these definitions, in the context of the statute as a whole, that the legislature anticipated that a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department, and thus a claim subject to the statute, could include allegations that a physician failed to provide appropriate treatment, thereby violating the accepted standard of medical care.

But OCGA § 51-1-29.5 (a) (5) excludes from its definition of emergency medical care “medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient. . . .” So the services provided by Dr. Nesbitt were “emergency medical care” until such time as Mr. Bonds was stabilized and the absence of such services would not have placed his health in serious jeopardy.

The statute provides that a doctor’s conduct becomes subject to the more rigorous ordinary negligence standard of care rather than the gross negligence standard when the patient’s condition improves, or at least stabilizes. In other words, the statute provides that the condition of the patient controls, not the opinion of the physician. If a physician or health care provider mistakenly concludes that a patient has become “stabilized” and “capable of receiving medical treatment as a nonemergency patient” and therefore stops providing emergency care to that patient — notwithstanding that the patient still needs emergency care — and if the patient is injured or killed as a result of the withdrawal of emergency care, the physician or health care provider is entitled to claim the protection of the gross negligence standard.

But at least in this case, that claim must be made to the jury. A doctor’s determination that a patient has stabilized is some evidence that the patient has in fact stabilized. While Mrs. Bonds’ expert witness testified that Mr. Bonds’ condition never became stable while he was in the emergency room, Dr. Nesbitt determined, at some point, that Mr. Bonds was stable. The doctor also determined that Mr. Bonds could be transferred to a regular hospital room, an indication that he believed Mr. Bonds no longer required emergency medical care. Viewing this evidence and all reasonable inferences in the light most favorable to Mrs. Bonds, we conclude that whether Mr. Bonds at some point had “stabilized and [was] capable of receiving medical treatment as a nonemergency patient” within the meaning of OCGA § 51-1-29.5 (a) (5) is a question for the trier of fact. The trial court erred by granting Dr. Nesbitt summary judgment on the issue of whether the exception applies.

2. Causation testimony of Dr. Anne Neff.

Mrs. Bonds argues that the trial court should have excluded the expert testimony of Dr. Anne Neff because Dr. Neff did not meet the criteria of OCGA § 24-9-67.1 (b). (With minor changes, that statute is carried forward in the new Evidence Code at OCGA § 24-7-702 (b), which became effective January 1, 2013. Walls v. Walls, 291 Ga. 757, 758 (3) , n. 3 (732 SE2d 407) (2012).) “The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” (Citations omitted.) MCG Health, Inc. v. Barton, 285 Ga. App. 577, 580 (1) (647 SE2d 81) (2007).

Former OCGA § 24-9-67.1 (b) provided that a witness qualified as an expert may give opinion testimony if:

(1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.

Mrs. Bonds argues, in effect, that because no witness other than Dr. Neff concluded that a pulmonary embolism caused Mr. Bonds’ death, because Dr. Neff has no experience in diagnosing pulmonary embolisms and because no medical evidence showed a pulmonary embolism, Dr. Neff’s opinion is unreliable.

Dr. Neff testified that in her practice, she acts as a consultant on the causation of pulmonary embolisms. She testified that she reached a differential diagnosis that a pulmonary embolism caused Mr. Bonds’ death. She based her conclusion on Mrs. Bonds’ testimony describing the evening of his death, particularly her testimony that just before his death, Mr. Bonds complained of the inability to breathe; his development of pulseless electrical activity; and his higher risk for pulmonary embolism, given his hemoglobin and hematocrit readings, his immobility due to illness, his dehydration, his diagnosis of pneumonia, and his excessive weight. She also testified that she consulted emergency room physicians about some of Mr. Bonds’ test readings and conducted research on the issues.

Given Dr. Neff’s testimony about her background, her consultation with other physicians, and her reasons for reaching her differential diagnosis, Mrs. Bonds has not shown that the trial court abused its discretion in allowing the testimony. Perry v. Gilotra-Mallik, 314 Ga. App. 764, 769 (4) (726 SE2d 81) (2012); Bd. of Regents of the Univ. System of Ga. v. Casey, 300 Ga. App. 850, 851-853 (1), (2) (686 SE2d 807) (2009).

3. The standard of care testimony of Dr. Robert Balk.

Mrs. Bonds argues that the trial court abused its discretion in ruling that although Dr. Robert Balk could testify as a causation expert, he could not testify as a standard of care expert. “Whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” Mason v. Home Depot U.S.A., 283 Ga. 271, 279 (658 SE2d 603) (2008).

In relevant part, former OCGA § 24-9-67.1 (c), which was replaced by OCGA § 24-7-702 (c) effective January 1, 2013, provided that the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, will be admissible in a medical malpractice action only if the expert

had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in [t]he active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue ....

(Punctuation omitted.) OCGA § 24-9-67.1 (c) (2) (A). “[T]he requirement that the expert have ‘actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given,’ ” Nathans v. Diamond, 282 Ga. 804, 806 (1) (654 SE2d 121) (2007), does not mean that the plaintiff’s expert must “have knowledge and experience in the ‘same area of practice/specialty as the defendant doctor,”’ id., but instead means that the expert must have “knowledge and experience in the practice or specialty that is relevant to the acts or omissions that the plaintiff alleges constitute malpractice and caused the plaintiff’s injuries.” Id.

Here, Mrs. Bonds’ complaint and attached expert affidavit from an emergency medicine physician make clear that the alleged negligence was Dr. Nesbitt’s failure to properly diagnose and treat Mr. Bonds’ illness while he was in the emergency room under Dr. Nesbitt’s care. Whether a witness has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given,” OCGA § 24-9-67.1 (c) (2) (A),

turns on whether the expert’s knowledge and experience is relevant to the acts or omissions that the plaintiff alleges constitute[d] malpractice and caused the plaintiff’s injuries. But a minimum level of knowledge in the area in which the opinion is to be given is insufficient; instead, an expert must be both familiar with the standard of care at issue and also demonstrate specific experience in the relevant practice area.

(Citation omitted.) Dawson v. Leder, 294 Ga. App. 717, 719 (1) (669 SE2d 720) (2008).

Dr. Balk works in the field of pulmonary and critical care medicine. He is board-certified in internal, pulmonary and critical care medicine. He does not practice medicine in the emergency room although he is sometimes asked to consult there. Balk testified that his opinion is that “it was not recognized that [Mr. Bonds] was critically ill and in need of volume resuscitation ... and appropriate antibiotic administration and diagnostic testing.” He testified that he would not comment on Dr. Nesbitt’s actions “compared to an ER physician, but I would comment on his management of this patient who presents with severe sepsis and septic shock.”

The trial court ruled that although Dr. Balk “was qualified to give expert medical testimony as to causation concerning a diagnosed condition of sepsis,” he could not testify about the standard of care. The court defined the applicable standard of care in terms of “a medical specialty which involves the diagnosis and treatment of. . . patients who present in an emergency room sitting with multiple symptoms resulting in a complicated differential diagnosis.” And because Mrs. Bonds had not shown that Balk “regularly engaged in the specialty of emergency medicine or that he ha[d] established an appropriate level of knowledge with respect to the specialty of emergency medicine in terms of the statute ...” he could not testify about the applicable standard of care.

Properly tailoring its order to its review of the evidence of Dr. Balk’s qualifications, the trial court determined that Dr. Balk had the necessary expertise to give his opinion on causation in regards to sepsis, but not to give his opinion on the applicable standard of care. The trial court did not manifestly abuse its discretion in excluding standard of care testimony on the ground that Dr. Balk is not sufficiently familiar with the standard of care at issue and does not have specific experience in the relevant practice area. See Aguilar v. Children’s Healthcare of Atlanta, 320 Ga. App. 663, 665 (739 SE2d 392) (2013) (in action alleging plaintiff’s ten-month-old son died as a result of the improper insertion of an intubation tube, trial court did not abuse its discretion in ruling plaintiff’s expert, who had experience in internal medicine and pediatrics and had performed intubations on infants, did “not have the requisite experience in the area in which his opinion is given, either pediatric emergency medicine or the even broader area of emergency medicine.”).

Decided July 12, 2013

James J. Anagnostakis, for appellants.

Hall Booth Smith, John E. Hall, Jr., Beth W. Kanik, W. Scott Henwood, for appellee.

4. Reopening discovery.

The trial court reopened discovery for the limited purpose of allowing Dr. Nesbitt to depose Dr. Janiak about the matters set forth in an affidavit he gave in opposition to Dr. Nesbitt’s motion for summary judgment. This affidavit was filed after Dr. Janiak provided the plaintiff’s OCGA § 9-11-9.1 affidavit and after he already had been deposed. “A trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown.” (Citations omitted.) Woelper v. Piedmont Cotton Mills, 266 Ga. 472, 473 (1) (467 SE2d 517) (1996). Mrs. Bonds has not shown that the trial court abused its wide discretion.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Boggs, J., concur.


author: Miller, Judge.

text:
    A13A0435.
    ARTSON, LLC v. HUDSON.
    (747 SE2d 68)
   Miller, Judge.

Artson, LLC appeals the dismissal of its lawsuit against David K. Hudson for failure to join indispensable parties to the action. Artson contends that the trial court erred in (1) finding that certain individuals were indispensable parties; (2) dismissing the complaint for failure to join indispensable parties because David Hudson did not move to dismiss the complaint on that ground and waived that defense; and (3) denying Artson’s motion for attorney fees pursuant to OCGA § 9-11-37. For the reasons set forth below, we affirm.

When, as here, a question of law is at issue we owe no deference to the trial court’s ruling and apply a de novo standard of review. See Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

The record shows that Artson is a Virginia limited liability corporation established in November 2003. Artson has four members — Lawyer and Doris Artis, their daughter, Denise Hudson, and their son-in-law, David Hudson — each of whom owns a twenty-five percent interest in the corporation. Artson was established for the purpose of owning, selling, managing and trading real estate, stocks, securities and other investments. Lawyer and David were the initial managing members of Artson with authority to conduct business on Artson’s behalf, including the authority to manage the corporation’s bank accounts and write checks therefrom.

At some point after 2003, Denise and David moved from Virginia to Marietta, Georgia. In September 2008, Denise and David initiated divorce proceedings. Thereafter, in January 2009, Lawyer, Doris and Denise signed a resolution removing David as a managing member of Artson and revoking his authority to act on behalf of the corporation.

Artson, by and through its managing member Lawyer, subsequently filed suit against David in Cobb County Superior Court for conversion, an accounting and attorney fees. David filed an answer and counterclaim, raising the defense of unclean hands, and asserting a counterclaim for conversion, an accounting and attorney fees.

Thereafter, David filed a third-party complaint against Denise and a motion for leave to add her as a third-party defendant. The third-party complaint alleged that Lawyer owned and operated a separate business known as Artis Contracting and that David and Denise owned and operated another separate business known as Acropolis Management, LLC. The third-party complaint also alleged that Artson and Artis Contracting shared business matters and finances with the knowledge of all of the parties involved and that Artson funds were used to pay for Acropolis Management’s cellular telephone bills and office supplies. Finally, the complaint alleged that Denise should be jointly liable for any award against David because she received the same benefit from the use of Artson’s funds as David and Lawyer. The trial court subsequently entered a consent order adding Denise as a third-party defendant.

The parties subsequently engaged in contentious discovery, which culminated in David filing a motion to compel the production of additional documents related to Artson. The trial court denied David’s motion to compel and entered a consent order resolving the parties’ discovery disputes.

Thereafter, David filed a motion for leave of court to add Doris as a party defendant. David also filed a petition to pierce the corporate veil and to construe Artson as Lawyer’s alter ego. Artson filed a motion for partial summary judgment or, in the alternative, to strike or dismiss David’s counterclaim.

On January 31, 2011, the trial court held a hearing on David’s motion to add Doris as a party defendant and Artson’s motion for partial summary judgment. At the hearing, the trial court denied Artson’s motion for partial summary judgment and its alternative motion to strike or dismiss David’s counterclaim. The trial court also ruled that Lawyer and Doris were indispensable parties and that it lacked personal jurisdiction over them. Thereafter, the trial court dismissed the case pursuant to OCGA § 9-11-19. This appeal ensued.

1. Artson contends that the trial court erred in finding that Doris and Lawyer were indispensable parties pursuant to OCGA § 9-11-19. We disagree.

OCGA § 9-11-19, which governs the joinder of necessary parties, provides that persons subject to service of process shall be joined if complete relief cannot be afforded in their absence, or they have an interest relating to the subject matter of the action such that disposition in their absence may impair their ability to protect that interest or may subject any parties to the action to a substantial risk of incurring multiple or inconsistent obligations by reason of such interest. See OCGA § 9-11-19 (a). Where joinder of necessary parties is not feasable, the trial court shall determine whether the parties are indispensable and the action should be dismissed. SeeOCGA § 9-11-19 (b).

Artson cites to no authority supporting its contention that Doris and Lawyer are not indispensable parties. Accordingly, Artson’s argument in this enumeration is deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2). Nevertheless, as more fully set forth in Division 2 below, Artson cannot show error because the trial court properly dismissed this action after determining that Doris and Lawyer are indispensable parties over which the trial court cannot exercise personal jurisdiction, and after considering all five factors set forth in OCGA § 9-11-19 (b) for determining whether this action should proceed. See Dixon v. Cole, 277 Ga. 353, 355 (1) (589 SE2d 94) (2003).

2. Artson contends that the trial court erred in dismissing the complaint pursuant to OCGA § 9-11-19 because David did not file a motion to dismiss on that ground and he waived the defense of indispensable parties. Again, we disagree.

The issue of failure to join an indispensable party must be asserted prior to judgment or it is waived. See Adams v. Wright, 162 Ga. App. 550, 551 (1) (293 SE2d 446) (1982). The issue may be asserted, however, “in any pleading permitted or ordered under subsection (a) of Code Section 9-11-7, or by motion for judgment on the pleadings, or at the trial on the merits.” OCGA § 9-11-12 (h) (2). Furthermore, the defense need not be asserted in writing. See Lee v. Collins, 249 Ga. App. 674, 676 (2) (547 SE2d 583) (2001) (holding that the trial court may consider a motion made pursuant to OCGA §9-11-12 (h) (2), even if the motion is not made in writing). Moreover, a complaint may be dismissed for failure to join indispensable parties when the trial court lacks jurisdiction over them. See Dixon, supra, 277 Ga. at 354 (1); Wright v. Safari Club Intl., 307 Ga. App. 136, 137 (706 SE2d 84) (2010).

The Civil Practice Act requires that pleadings be liberally construed in favor of the pleader. See Glisson v. Hosp. Auth. of Valdosta & Lowndes County, 224 Ga. App. 649, 654 (1) (481 SE2d 612) (1997). So construed, we find that David effectively, albeit inartfully, asserted the issue of indispensable parties in his pleadings. Notably, David asserted in his amended answer, counterclaim and third-party complaint that all of Artson’s shareholders used corporate funds for their respective personal uses and Doris and Lawyer received the largest personal benefit from misappropriation of Artson’s corporate funds. David also filed a motion to add Denise as a third-party defendant; he filed a third-party complaint against Denise, alleging that she should be held equally liable for any sum awarded to Artson; and he filed a petition to pierce the corporate veil, alleging that Artson is a shell corporation and asking the trial court to hold Lawyer and Denise personally liable. Moreover, David filed a motion to add Doris as a party defendant, alleging that she committed the tort of conversion and acted jointly with Denise. Based on the foregoing, the record shows that Artson was well aware of David’s contention that Lawyer and Doris were necessary parties and should have known that without their joinder its suit might not be able to proceed in Georgia. Accordingly, we address the issue of whether the trial court properly dismissed this action pursuant to OCGA § 9-11-19.

(a) Necessary parties

OCGA § 9-11-19 (a) mandates joinder of persons where complete relief cannot be afforded among those who are already parties.

When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim [,] the court shall order them to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained.

(Citation and punctuation omitted.) Gardner v. Gardner, 276 Ga. 189, 190 (576 SE2d 857) (2003); OCGA § 9-11-13 (h). The concept of complete relief as set forth in OCGA §§ 9-11-13 and 9-11-19 (a) (1) “embraces the desirability of avoiding repetitive lawsuits on essentially the same facts or subject matter, as well as the desirability of joining those in whose absence there might be a grant of hollow or partial relief to the parties before the court.” (Citations and punctuation omitted.) Id.

Here, David alleged in his amended answer, counterclaim and third-party complaint that all of Artson’s shareholders used corporate funds for their respective personal use and Doris and Lawyer garnered the largest personal benefit from misappropriation of corporate funds. In dismissing the case, the trial court specifically found that the case essentially involves a dispute between all of the shareholders of Artson and complete relief cannot be afforded to the parties in the absence of Doris and Lawyer. Artson does not challenge these findings on appeal. Accordingly, Artson failed to show that the trial court abused its discretion in determining that complete relief cannot be afforded in Doris and Lawyer’s absence. See Gardner, supra, 276 Ga. at 190-191 (1) (holding that trial court did not abuse its discretion in finding that joinder of wholly-owned corporations was necessary to ensure just division of marital assets in divorce action).

(b) Personal jurisdiction

OCGA § 9-11-19 (a) limits joinder of persons as parties to those persons who are subject to service of process. See Dixon, supra, 277 Ga. at 354 (1). At the hearing on David’s motion to join Doris as a necessary party, Artson specifically argued and the record shows that Doris and Lawyer, who are Virginia residents, are not subject to jurisdiction under Georgia’s long-arm statute, OCGA § 9-10-91, because they meet none of the requirements for personal jurisdiction set forth therein. Moreover, Artson acknowledges on appeal that Doris and Lawyer are not subject to service of process in Georgia.

OCGA § 9-10-91 controls the scope of personal jurisdiction that Georgia courts may exercise over nonresidents by requiring out-of-state defendants to own, use or possess real property in Georgia or commit certain delineated acts within the State before they can be subjected to personal jurisdiction in Georgia. See Innovative Clinical, supra, 279 Ga. at 673; Oglesby v. Deal, 311 Ga. App. 622, 625 (1) (716 SE2d 749) (2011). There is no evidence showing that Doris and Lawyer own property in Georgia or committed acts within the State that would subject them to long-arm jurisdiction, consequently the trial court did not err in finding that it lacked personal jurisdiction over them.

(c) Dismissal where joinder of a necessary party is not feasible Where, as here,
a person or entity described in OCGA § 9-11-19 (a) cannot be made a party, OCGA § 9-11-19 (b) states [that] the court shall determine whether in equity and good conscience the action should proceed among the parties before it or should be dismissed, the absent person being thus regarded as indispensable.

(Punctuation omitted.) Dixon, supra, 277 Ga. at 355 (1).

In determining if a party is indispensable, it is essential to consider whether relief can be afforded the [named parties] without the presence of the other party, and whether the case can be decided on its merits without prejudicing the rights of the other party. If there are no compelling reasons for joinder of the third parties, then they are not indispensable to the action [.]

(Citation and punctuation omitted.) Wilcher v. Way Acceptance Co., 316 Ga. App. 862, 867 (1) (730 SE2d 577) (2012); see also Sherman v. Dev. Auth. of Fulton County, 317 Ga. App. 345, 348-349 (3) (730 SE2d 113) (2012).

OCGA § 9-11-19 (b) lists five factors to be considered by the trial court in deciding whether a person who is not subject to the trial court’s jurisdiction is in fact indispensable:

(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or to those already parties; (2) The extent to which, by protective provisions in the judgment, by the shaping of relief, or by other measures, the prejudice can be lessened or avoided; (3) Whether a judgment rendered in the person’s absence will be adequate; (4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder; and (5) Whether and by whom prejudice might have been avoided or may, in the future, be avoided.

Although a trial court generally should allow a reasonable time for joinder of an indispensable party, immediate dismissal of a complaint is appropriate where the trial court lacks personal jurisdiction over an indispensable party. See Dixon, supra, 277 Ga. at 355 (2).

Here, David had a pending motion to add Doris as a party to this action. At the hearing on David’s motion, the trial court specifically noted that adding both Doris and Lawyer to this action was necessary in order to provide complete relief. Moreover, in determining that Doris and Lawyer were indispensable parties, the trial court addressed each ofthe five factors set forth in OCGA § 9-11-19 (b). The trial court specifically found that a judgment rendered in the absence of Doris and Lawyer would be prejudicial to David; no available measures would lessen or avoid such prejudice; a judgment rendered in Doris and Lawyer’s absence would be inadequate; Artson has an adequate remedy because it can refile this action in Virginia where all of its shareholders are subject to jurisdiction; and, in the absence of Doris and Lawyer, David could not avoid prejudice because the factfinder could not possibly determine the rights, obligations and liabilities of the parties and David could not adequately present his defenses. The trial court also found that complete relief could not be afforded to the parties in the absence of Doris and Lawyer because this case essentially involves a dispute between all four of Artson’s shareholders and David’s counterclaim alleged that all of the shareholders used corporate funds for their personal uses. Accordingly, the trial court did not err in dismissing Artson’s complaint due to the absence of indispensable parties over which it lacked personal jurisdiction. See Dixon, supra, 277 Ga. at 355 (1).

Decided July 12, 2013.

Jacquelyn F. Luther, for appellant.

3. Artson contends that the trial court erred in denying its motion for attorney fees pursuant to OCGA § 9-11-37 (a) (4) (B). We discern no error.

OCGA § 9-11-37 (a) (4) (B) provides for an award of expenses for a motion for an order compelling discovery:

If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

(Emphasis supplied.) “A trial court has broad discretion to control discovery, including the imposition of sanctions, and this Court will not reverse the trial court’s ruling on such matters absent the showing of a clear abuse of discretion.” (Punctuation and footnote omitted.) Alexander v. A. Atlanta Autosave, Inc., 272 Ga. App. 73, 78 (5) (611 SE2d 754) (2005). Here, although the trial court denied David’s motion to compel, the parties entered into a consent order resolving their discovery disputes. Moreover, in denying Artson’s motion for attorney fees, the trial court specifically found that the making of David’s motion to compel discovery was substantially justified and an award of expenses would be unjust. Accordingly, we find no abuse of discretion in the trial court’s denial of Artson’s motion for attorney fees pursuant to OCGA § 9-11-37.

Judgment affirmed.

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

Justin J. Wyatt, for appellee.

       Artson relies on this Court’s decision in Wiepert v. Stover, 298 Ga. App. 683 (680 SE2d 707) (2009), citing Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446 (304 SE2d 442) (1983), in support of its argument that David waived the issue of indispensable parties by not raising it in a motion to dismiss pursuant to OCGA § 9-11-12. That statute plainly does not require the issue of indispensable parties to be raised in a motion to dismiss. See OCGA § 9-11-12 (h) (2). Moreover, Supreme Court authority indicates that the issue may be raised in a motion to dismiss, but does not require it. See Dixon, supra, 277 Ga. at 354-355 (l); see also Mathis v. Hammond, 268 Ga. 158 (486 SE2d 356) (1997). Accordingly, Wiepert, supra, 298 Ga. App. at 685 (2), Klorer-Willhardt, supra, 166 Ga. App. at 446 (1), Caswell v. Jordan, 184 Ga. App. 755, 759 (2) (362 SE2d 769) (1987), Jones v. Dykes, 231 Ga. App. 110, 111 (4) (497 SE2d 828) (1998), Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 398 (3) (740 SE2d 635) (2012), and their progeny are disapproved to the extent they hold otherwise.

       Georgia’s long-arm statute pertinently provides:
      A court of this state may exercise personal jurisdiction over any nonresident or his or her executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he or she were a resident of this state, if in person or through an agent, he or she: (1) Transacts any business within this state; (2) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act; (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; (4) Owns, uses, or possesses any real property situated within this state [.]
      OCGA § 9-10-91. See also Innovative Clinical & Consulting Svcs. v. First Nat. Bank of Ames, Iowa, 279 Ga. 672, 675 (620 SE2d 352) (2005) (holding that long-arm jurisdiction over non-residents who transact business within the State reaches only to the maximum extent permitted by procedural due process).


author: ELLINGTON, Presiding Judge.

text:
    A11A0951.
    NORFOLK SOUTHERN RAILWAY COMPANY v. EVERETT.
    (747 SE2d 92)
   ELLINGTON, Presiding Judge.

In this suit under the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq., Norfolk Southern Railway Company (“Norfolk Southern”) appeals from the final judgment in favor of Michael Everett on his complaint for emotional injuries arising out of a train derailment caused by the negligence of a co-worker while Everett was working as the train’s engineer. For the reasons given in Divisions 1 and 2, infra, we affirm.

This case is before us following remand by the Supreme Court of Georgia. Everett v. Norfolk Southern R. Co., 292 Ga. 106 (734 SE2d 388) (2012) (Norfolk III). The Supreme Court recounted the procedural history of this case as follows:

In its summary judgment order, the trial court concluded that [Everett] had “shown that he was in such immediate risk of physical harm and that his apprehension of physical harm was reasonable” and that it could not say [Everett] was “not within the zone of danger....” While the phrasing of the trial court’s opinion was somewhat inartful, the trial court clearly found, based on the facts set forth on summary judgment, that [Everett] was within the zone of danger, and the Court of Appeals construed it as such in [Norfolk Southern R. Co. v. Everett, 299 Ga. App. 420, 425-426 (682 SE2d 621) (2009) (“Norfolk I”)]. This decision meant that [Norfolk Southern] had a duty to protect [Everett] as a matter of law. When the Court of Appeals affirmed the trial court’s summary judgment decision in Norfolk I by stating “[b]ecause the trial court correctly concluded that [appellant] was within the zone of danger” and by stating that [Everett] “met his burden under Gottshall” . . ., the only matters to be resolved by the jury at trial were breach of duty, causation, and damages.

(Citations omitted.) Norfolk III, 292 Ga. at 108-109 (1) (b). Having concluded that “the parties agree that the facts at the time of summary judgment and the facts at trial were undisputed and that there was no underlying factual conflict for the jury to resolve in relation to the trial court’s legal decision that [Everett] was within the zone of danger,” the Supreme Court held that, “[s]ince the jury does not determine whether a claimant is within the zone of danger, the trial court did not err when it granted the motion in limine prohibiting [Norfolk Southern] from arguing to the jury that [Everett] was outside the zone of danger.” Id. at 108 (1) (a). The Supreme Court then remanded the case to this Court for further proceedings. Id. at 109 (2).

1. Norfolk Southern contends that, notwithstanding the decision of the Supreme Court, this Court may still address whether the trial court erred in denying its motion for a directed verdict. Specifically, Norfolk Southern argues that this Court is authorized to conduct a de novo review to determine whether the evidence adduced at trial supported a finding that Everett was within the zone of danger, and that, if we conclude that the evidence at trial did not support the trial court’s ruling, we must reverse the trial court’s denial of the motion for a directed verdict.

Any further review of the facts by this Court, however, has been prohibited by the Supreme Court’s opinion. The Supreme Court specifically concluded that the parties were in agreement that the facts “at the time of summary judgment and the facts at trial were undisputed and that there was no underlying factual conflict for the jury to resolve in relation to the trial court’s legal decision that appellant was within the zone of danger.” (Emphasis supplied.) Norfolk III, 292 Ga. at 108 (1) (a). Thus, given the conclusion that there was no evidence at trial demanding a finding that Everett was outside the zone of danger as a matter of law, we are constrained to find that the trial court did not err in denying Norfolk Southern’s motion for a directed verdict.

2. Norfolk Southern contends the trial court erred in refusing to give two of its written requests to charge.

(a) Norfolk Southern contends that the trial court erred in refusing to instruct the jury that it must find that Everett “in fact believed he was in danger of serious injury during the incident at the Ford plant” in order to find that he was within the zone of danger. However, because the Supreme Court has ruled that the “role of deciding whether the worker was within the zone of danger does not shift from the court to the jury,” the trial court did not err in refusing to give the requested charge. See Norfolk III, 292 Ga. at 108 (1) (a).

Decided July 15, 2013

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

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

(b) Norfolk Southern contends that the trial court should have instructed the jury that, “if you were to determine that any emotional or psychological injuries sustained by [Everett] resulted from another cause, whether unrelated to his job or related to ongoing and cumulative stress from his job, then the FELA would not authorize a recovery for damages in this case.” However, the court’s jury charges concerning compensable emotional distress claims under FELA and proximate causation adequately covered this concept. See Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 864-865 (4) (a) (686 SE2d 455) (2009). Consequently, we find no error.

Judgment affirmed.

Phipps, C. J., Andrews, P. J., Doyle, P. J., Miller, McFadden and Boggs, JJ., concur.

       Upon remand, this Court permitted the parties to submit additional briefs.

       A directed verdict is authorized “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict[.]” OCGA § 9-11-50 (a). “But where any evidence or some evidence exists to support a jury issue on the non-movant’s claims, a directed verdict is improper. This Court conducts a de novo review on appeal from the grant of a directed verdict, and we will uphold a directed verdict only if all of the evidence demands it.” (Citation and punctuation omitted.) Sun Nurseries v. Lake Erma, 316 Ga. App. 832, 835 (730 SE2d 556) (2012).


author: Ellington, Presiding Judge.

text:
    A13A0008.
    MULLINS-LEHOLM v. EVANS.
    (746 SE2d 628)
   Ellington, Presiding Judge.

Brandi Mullins-Leholm, the mother of five-year-old B. E., appeals from an order of the Superior Court of Paulding County holding her in contempt, eliminating her unsupervised visitation with the child, and ordering her to pay attorney fees. She contends that the court erred in considering a counterclaim for contempt and modification of her visitation that the child’s father, Dustin Evans, filed in response to her contempt petition; that the court’s finding that she was in contempt resulted from its unauthorized consideration of the father’s counterclaim and evidence in support thereof; and that, as a result, the court’s order finding her in contempt and ordering her to pay the father’s attorney fees must be reversed. She also contends that the court erred in eliminating her unsupervised, weekday, and overnight visitation with her child. For the following reasons, we reverse the court’s order to the extent that it found the mother in contempt and ordered her to pay attorney fees, but affirm the court’s modification of her visitation rights.

The record shows the following undisputed facts. On March 8, 2008, B. E. was born to Mullins-Leholm and Evans (hereinafter, “mother” and “father,” respectively), who were not married. In an August 2010 consent order, the father legitimated B. E., and the parties agreed on child support, custody, and visitation provisions, with the father being named as sole legal custodian of the child.

Two months later, the mother filed a petition for contempt, asking the court to hold the father in contempt for failing to comply with the visitation provisions of the consent order. The petition did not seek a modification of the visitation schedule or of any other provision of the consent order. The father answered the contempt petition and filed a counterclaim asserting that the mother was in contempt; he also sought a modification of the mother’s visitation privileges and attorney fees. Although the mother’s attorney objected to the court’s consideration of the father’s counterclaim, arguing that it was an unauthorized counterclaim to a contempt petition, the court conducted joint hearings on the mother’s contempt petition and the father’s counterclaim, allowing both parties to present evidence and argument in support of their petitions.

In its July 2011 written order, the trial court denied the mother’s contempt petition against the father, finding that he was not in willful contempt. The court then ruled in favor of the father on his counterclaim, finding that the mother was in willful contempt of the consent order and ordering her to pay $7,500 in attorney fees “resulting from [the father] being forced to file his Counterclaim for Contempt” against her. In addition, the court modified the consent order by requiring that all of the mother’s visitation be supervised, by suspending her weekday and overnight visitation, and by requiring her to have a psychiatric examination and to take parenting classes as a condition precedent to any restoration of her visitation rights. According to the order, the court concluded that it had the authority to modify the mother’s visitation rights “pursuant to the Counterclaim filed by [the father] in this matter.” Subsequently, in response to the mother’s motion for new trial, the court issued an order in which it ruled that it had the authority to modify the mother’s visitation rights in the contempt proceeding, either sua sponte or on either party’s motion, pursuant to OCGA § 19-9-3 (b). This appeal followed.

1. The mother contends that the trial court erred as a matter of law in considering the father’s counterclaim to her contempt petition and in holding her in contempt as a result thereof. We agree.

In Carden v. Carden, this Court held as follows:

The contempt remedy is part of the judiciary’s inherent power to enforce its orders. As such, an action for contempt is ancillary to the primary action and is characterized as a motion and not a pleading. Because a contempt action is not a new civil action, many provisions of the Civil Practice Act do not apply, and the Supreme Court of Georgia has consistently held that a party may not file a counterclaim in response to an application for contempt.

(Footnotes omitted.) 266 Ga. App. 149, 150 (1) (596 SE2d 686) (2004). See Jacob-Hopkins v. Jacob, 304 Ga. App. 604, 606 (697 SE2d 284) (2010) (accord); Reece v. Smith, 292 Ga. App. 875, 878 (3) (665 SE2d 918) (2008) (accord). Indeed, the purpose of a contempt proceeding is to place the parties in as nearly the same position as they would have occupied had the respondent obeyed the previous order from the outset, and the trial court is limited to exercising only that power necessary to enforce the terms of that order. Harris v. U. S. Dev. Corp., 269 Ga. 659, 661 (502 SE2d 721) (1998); Jacob-Hopkins v. Jacob, 304 Ga. App. at 606.

Therefore, the trial court erred as a matter of law when it considered and ruled upon the father’s contempt counterclaim to the mother’s contempt petition. Carden v. Carden, 266 Ga. App. at 150 (1). Consequently, the court was not authorized to hold her in contempt pursuant to the counterclaim, and that portion of its order must be reversed. Id.

2. The mother also contends that the trial court erred in ordering her to pay $7,500 in attorney fees as a result of the father “being forced to file his Counterclaim for Contempt” against her. Because we have concluded in Division 1, supra, that the father was prohibited from filing a counterclaim to the mother’s contempt petition and that the court was not authorized to consider it, it follows that the court was not authorized to order the mother to pay the father’s attorney fees resulting therefrom. See Hammonds v. Parks, 319 Ga. App. at 795 (3) (Because the mother’s request for a change in custody was improper, the trial court erred in considering it, in ordering the father to produce documents in response to it, and in requiring the father to pay the mother’s attorney fees for his failure to produce the documents earlier.); see also McGahee v. Rogers, 280 Ga. 750, 754 (2) (632 SE2d 657) (2006) (An award of attorney fees under OCGA § 19-6-2 requires a valid determination that the mother was in contempt of the consent order.); Brochin v. Brochin, 294 Ga. App. 406, 407 (2) (669 SE2d 203) (2008) (“Where a finding of contempt is not authorized, an award of attorney fees under OCGA § 19-6-2 also is not authorized.”) (footnote omitted). Consequently, the court’s award of attorney fees to the father must be reversed.

3. The mother contends that, because the trial court lacked the authority to consider the father’s counterclaim for contempt, the trial court erred in modifying her visitation rights in the context of ruling on her contempt petition. However, the record shows that, at the beginning of the contempt hearing, the mother’s attorney expressly conceded that “it’s well within the powers vested in [the trial court] to change visitation at any time for any reason whatsoever.” Consequently, the mother waived any objection to the court’s modification of her visitation rights. See Davis v. Phoebe Putney Health System, 280 Ga. App. 505, 506 (1) (634 SE2d 452) (2006) (“A party cannot participate and acquiesce in a trial court’s procedure and then complain of it.”) (citation omitted).

It follows that, absent any other preserved allegation of error, we affirm the portion of the trial court’s order that modifies the mother’s visitation rights.

4. Given this Court’s rulings in Divisions 1 through 3, supra, the mother’s remaining enumerated errors are moot.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Branch, J., concur.

Decided July 15, 2013.

Edwards, McLeod & Money, James M. Money, for appellant.

Glen E. Stinson, for appellee.

       Although the court also denied the mother’s contempt petition based upon its finding that the father was not in willful contempt, the mother does not challenge on appeal that portion of the order. Therefore, it stands affirmed as a matter of law. Hammonds v. Parks, 319 Ga. App. 792, 795 (4) (735 SE2d 801) (2012).

       “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the plain legal error standard of review.” (Citation and punctuation omitted.) Seeley v. Seeley, 282 Ga. App. 394, 395 (1) (638 SE2d 837) (2006).

       See OCGA §§ 19-6-2 (a) (The trial court has the discretion to award reasonable attorney fees in contempt orders involving child visitation rights, but only after considering the financial circumstances of both parties as a part of its determination of the amount of attorney fees to award.); 19-9-3 (g) (The trial court has the discretion to award reasonable attorney fees in actions for modification of visitation rights.).

       See Division 1, supra.

       In addition, in her brief in support of her motion for new trial, the mother “concede [d] that either party or the Court can move to modify visitation in a contempt action based upon the best interests of the child.”


author: RAY, Judge.

text:
    A13A0040.
    DEPARTMENT OF TRANSPORTATION v. REVCO DISCOUNT DRUG CENTERS, INC.
    (746 SE2d 631)
   RAY, Judge.

The Department of Transportation (“DOT”) filed a petition for condemnation and a declaration of taking to acquire 0.144 acres of land, along with certain easement rights, on certain property located in Atlanta. Reveo Discount Drug Centers, Inc. (“Reveo”), which was not named as a condemnee in the direct condemnation action, filed a separate action against DOT for inverse condemnation. Acting upon an agreement of the parties and an order of the trial court, Reveo intervened in the direct condemnation action and dismissed its inverse condemnation action “with prejudice.” DOT then moved for summary judgment, contending that Revco’s dismissal of its inverse condemnation action with prejudice constituted an adjudication on the merits which barred Revco’s claim for the same damages in the direct condemnation action. The trial court denied Revco’s petition to set aside the dismissal with prejudice and denied DOT’s motion for summary judgment, and the case proceeded to a jury trial. After a verdict and judgment was entered in favor of Reveo, DOT filed a motion for judgment notwithstanding the verdict (j.n.o.v.) or new trial, which the trial court denied. DOT appeals from the judgment and the denial of its motion for j.n.o.v., contending that the trial court erred in failing to apply res judicata and that the trial court made various errors at trial. For the following reasons, we reverse in part and vacate in part.

1. DOT contends that the trial court erred in failing to apply res judicata to bar Revco’s claim for damages arising from the condemnation. In light of the trial court’s denial of the petition to set aside the dismissal with prejudice and based upon the controlling authority set forth herein, we are, unfortunately, constrained to agree.

At a discovery hearing in Revco’s inverse condemnation action, the parties agreed to allow Reveo to intervene in the direct condemnation action to assert its claim for damages. On May 5,2009, the trial court entered an order allowing Reveo to intervene. The order also directed Reveo to dismiss its inverse condemnation action within ten days. In reliance upon the agreement of the parties and the order of the trial court, Reveo asserted its claim for damages in the direct condemnation action and dismissed its inverse condemnation action, “with prejudice.” Thereafter, DOT moved for partial summary judgment, contending that Revco’s dismissal of its inverse condemnation action “with prejudice” amounted to an adjudication on the merits regarding Revco’s claim for condemnation damages.

In its response to DOT’s motion, Reveo argued that res judicata should not apply because it did not have a full and fair opportunity to litigate its claims for damages in the inverse condemnation action because its dismissal was required by the trial court’s order and because OCGA § 9-2-5 prohibits two actions involving the same issues and parties from being prosecuted simultaneously. Reveo also petitioned the court to set aside the dismissal “with prejudice” in the inverse condemnation action so that it could be re-entered as a dismissal “without prejudice,” contending that the dismissal with prejudice was a mistake or clerical error that was subject to correction pursuant to OCGA § 9-11-60 (d) (2) and (g).

However, in its petition to set aside the dismissal in the inverse condemnation action, Reveo conceded that it filed the dismissal “with prejudice” because it believed that it was required to do so by the court’s order and by OCGA § 9-2-5. The trial court denied Revco’s petition to set aside the dismissal with prejudice, finding that Reveo was not entitled to relief under OCGA § 9-11-60 (d) (2) or (g) because its dismissal with prejudice was a calculated decision that was “a result of [Revco’s] own negligence, fault or decisional error.” The trial court further found that the petition was untimely because it was filed outside the term of court in which the dismissal was entered. The trial court’s denial of the petition to set aside the dismissal with prejudice was not appealed.

Despite this ruling, the trial court denied DOT’s motion for summary judgment, citing concerns of “fairness and due process.” The trial court reasoned that Reveo did not have a full and fair opportunity to litigate its claims for damages because it dismissed the inverse condemnation action based upon the parties’ agreement that Reveo could intervene in the related direct condemnation action and because the trial court’s order required Reveo to dismiss its inverse condemnation action. The trial court further found that Revco’s dismissal with prejudice was filed “in good faith.”

OCGA § 9-12-40 provides that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties... as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

(Emphasis supplied.) As noted above, the trial court denied Revco’s petition to set aside the dismissal with prejudice, and the court’s ruling on this issue has not been appealed. Thus, our analysis shifts to the applicability of res judicata to Revco’s claims for damages in this case.

For a prior action to bar a subsequent action under the doctrine of res judicata,

the first action must have involved an adjudication by a court of competent jurisdiction; the two actions must have an identity of parties and subject matter; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action.

(Citation and punctuation omitted.) Austin v. Cohen, 268 Ga. App. 650, 654-655 (1) (602 SE2d 146) (2004). We find that all of these requirements were met in this case.

First, the trial court was a court of competent jurisdiction for the purposes of res judicata in this case. A voluntary dismissal with prejudice constitutes a “judgment on the merits for purposes of res judicata” with regard to the same parties and the same cause of action. Fowler v. Vineyard, 261 Ga. 454, 456 (2) (405 SE2d 678) (1991). Revco’s dismissal with prejudice was voluntary because Reveo was not required to intervene in the direct condemnation action, nor was it required by the parties’ agreement or the order of the court to dismiss its inverse condemnation action with prejudice. “[A] simple mistake by a party as to the . . . legal result of an act which he performs, is no ground for either defensive or affirmative relief.” (Citation and punctuation omitted.) Kent v. State Farm Mutual Automobile Ins. Co., 233 Ga. App. 564, 566 (2) (504 SE2d 710) (1998).

Furthermore, it is immaterial that Reveo was allowed to intervene in the direct condemnation action at or before the time it dismissed its inverse condemnation action. See Grant v. Franklin, 244 Ga. App. 370, 370-371 (534 SE2d 584) (2000) (where plaintiff had two personal injury actions pending, a dismissal with prejudice in one action operated as a bar to the other action). Here, both condemnation actions were pending at the same time, and by intervening in the direct condemnation action and dismissing the inverse condemnation action “with prejudice,” such dismissal operates as a bar to Revco’s claim for condemnation damages. Id.

Second, the inverse condemnation action and the direct condemnation action had an identity of the parties (Reveo and DOT) and involved the same subject matter (Revco’s claim for damages arising out of the condemnation). “Damages recoverable in an inverse condemnation are a substitute for the damages recoverable in a condemnation proceeding, and are measured by the same standard.” Ga. Dept. of Transp. v. Edwards, 267 Ga. 733, 737 (1) (b) (482 SE2d 260) (1997).

The final requirement for res judicata is that the party against whom it is asserted must have had a full and fair opportunity to litigate the issues presented in the other action. An essential aspect of our res judicata analysis is whether Reveo properly managed its case. Piedmont Cotton Mills, Inc. v. Woelper, 269 Ga. 109, 110 (498 SE2d 255) (1998). “If, pursuant to an appropriate handling of the case, the merits ... could have been determined, then the defense [of res judicata] is valid.” (Emphasis supplied.) Id.

The trial court concluded that Reveo did not have a full and fair opportunity to litigate its claims for condemnation damages because Reveo dismissed the inverse condemnation action based upon the parties’ agreement that it could intervene in the direct condemnation action and because Reveo believed that the trial court’s order allowing the intervention required it to dismiss the inverse condemnation action “with prejudice.” However, Reveo did not have to agree to intervene in the direct condemnation action, nor did the trial court’s order require Reveo to dismiss its inverse condemnation “with prejudice.” Had Reveo declined to intervene or had it dismissed its inverse condemnation without prejudice, it could have litigated its claims for condemnation damages. Thus, our precedent mandates the conclusion that Reveo had a full and fair opportunity to litigate its claims upon proper management of its inverse condemnation case.

Lastly, the trial court concluded that res judicata should not apply because Reveo dismissed its inverse condemnation action with prejudice “in good faith” with the intent to pursue its claims in the direct condemnation action. However, Revco’s petition to set aside the dismissal with prejudice was denied, and neither the trial court nor Reveo has cited any authority which provides a “good faith” exception to the rule that such a dismissal operates as a judgment on the merits for the purposes of res judicata. We likewise could find no such authority.

Decided July 15, 2013

Samuel S. Olens, Attorney General, Weiner, Yancey, Dempsey & Diggs, Thomas C. Dempsey, Kennita N. Haley, for appellant.

Smith, Welch, Webb & White, A. J. Welch III, William A. White, for appellee.

For the above reasons, the trial court erred in failing to apply res judicata in this case. Accordingly, we vacate the judgment in favor of Reveo and reverse the trial court’s denial of DOT’s motion for j.n.o.v.

2. Based on our holding in Division 1, we need not address DOT’s remaining enumerations of error.

Judgment reversed in part and vacated in part.

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

       We note that neither the trial court’s order nor OCGA § 9-2-5 required Reveo to file a dismissal “with prejudice.”

       This fact is not disputed by the parties on appeal.

       The portion of the judgment relating to the disbursal of certain funds held in the court registry to condemnee Selig Midtown Crossing, LLC is not affected by our holding in this case.