author:
McMillian, Judge.
      McFADDEN, Presiding Judge,

text:
    A16A1915.
    LEWIS v. KNOLOGY, INC. et al.
    (799 SE2d 247)
   McMillian, Judge.

In 2012, Shelia Lewis filed a putative class action against Knology, Inc. (“Knology”) and its former directors in the Superior Court of Troup County for breach of fiduciary duty and failing to disclose material information regarding a merger between Knology and WideOpenWest Finance, LLC (“WOW”). But at her deposition, Lewis testified that she thought that her lawsuit was pending in Delaware, she had never heard of Georgia counsel or his firm, and she thought her claims were based on her failure to be paid for her shares, rather than information that should have been disclosed at the time of the merger. Based on these and other findings, the trial court denied Lewis’s motion for class certification because she was not an adequate class representative, nor were her claims typical as required by OCGA § 9-11-23 (a). Lewis now appeals, asserting that the trial court abused its discretion in denying class certification. For the reasons that follow, we find no error and affirm.

The trial court is vested with broad discretion to decide whether to certify a class, and absent an abuse of that discretion, we will not disturb the trial court’s decision. Carnett’s, Inc. v. Hammond, 279 Ga. 125, 127 (3) (610 SE2d 529) (2005); Hooters of Augusta v. Nicholson, 245 Ga. App. 363, 367 (4) (537 SE2d 468) (2000). “Implicit in this deferential standard of review is a recognition of the fact-intensive basis of the certification inquiry and of the trial court’s inherent power to manage and control pending litigation.” (Citation and punctuation omitted.) Brenntag Mid South, Inc. v. Smart, 308 Ga. App. 899, 902 (2) (710 SE2d 569) (2011). Thus, “we will affirm the trial court’s factual findings unless they are clearly erroneous. Under the clearly erroneous test, factual findings must be affirmed if supported by any evidence.” (Citation and punctuation omitted.) Id.

In denying the motion for class certification, the trial court made the following findings of fact. Less than one month after Knology and WOW signed a merger agreement, which required an affirmative vote of the majority of the shares of Knology’s common stock to be approved, Equity Trading, a Knology shareholder, filed a putative class action suit in the Superior Court of Troup County, asserting that the Knology directors breached their fiduciary duties by approving the merger and failing to disclose all material facts in the preliminary proxy statement. On May 24, 2012, Knology filed with the Securities and Exchange Commission (“SEC”) its “Definitive Proxy Statement,” which affirmatively disclosed the filing of Equity Trading’s complaint and a summary of its allegations and requested relief. The Definitive Proxy Statement and ballot were mailed to all Knology shareholders of record as of May 23, 2012.

On June 4, 2012, the law firm of Levi & Korsinsky filed in Delaware Chancery Court a second putative class action on behalf of Lewis as the sole proposed class representative, asserting substantively similar allegations to those contained in the Equity Trading complaint filed in Georgia. Shortly thereafter and before the shareholder meeting to consider and vote on the merger, Knology filed an amendment to its Definitive Proxy Statement and a Form 8-K with the SEC, supplementing its disclosures to report the filing of Lewis’s Delaware complaint and the claims made therein. On June 26, 2012, a majority of the stockholders voted in favor of the merger, which closed on July 17, 2012. Of the approximately 38.7 million shares outstanding, 31,291,445 shares voted, with 99.9% in favor of the merger.

Lewis did not receive any proxy statement or a ballot and thus did not vote on the merger. The reason for this was because Lewis had purchased 240 shares of preferred stock in 2001, and those shares were subject to mandatory conversion into 24.89 shares of common stock in 2003. Lewis, however, never pursued the paperwork required to convert her shares and was not listed as a holder of Knology common stock in the transfer agent’s records after 2010.

On August 15, 2012, Lewis’s Delaware lawsuit was voluntarily dismissed and refiled in the Superior Court of Troup County a few weeks later. The Equity Trading and Lewis complaints were thereafter consolidated through the filing of a consolidated class action complaint naming Knology and its former directors as defendants and asserting claims for breach of fiduciary duties and failure to disclose. In addition to seeking compensatory damages, the complaint also sought to rescind the sale of Knology. Following a ruling that its principals would be required to submit to further discovery on issues relating to their adequacy to serve as a class representative, Equity Trading voluntarily dismissed its claims and withdrew from the action, leaving Lewis as the sole class representative.

At her deposition in January 2014, Lewis testified that she did not know anything about the Knology merger, any of the potential bidders, or the process by which the Knology directors negotiated the merger. Lewis also denied knowing that a lawsuit had been filed on her behalf in Georgia, nor had she heard of Georgia counsel. And although one of the class claims is that the defendants failed to disclose material facts in Knology’s proxy statement, it is undisputed that Lewis did not read the proxy statement. In fact, Lewis believed that the shareholders were not notified of the merger at all. And when asked what she hoped to gain from this lawsuit, Lewis responded,

Well, I’m here because I have got nothing for the investment that I made and I’m sure that there’s other people out there just like me. And I don’t think it’s fair that if this is going on that we didn’t get notified. I mean, they put out the statement saying that people was to do it by proxy or all that. I was never given the chance so I just want it to be fair to everybody.

Lewis was then asked if she would have been satisfied had she been paid for her shares, and Lewis replied,

If I was going out as an individual and I went to Knology and converted this share over and that’s what it was, I would be happy. But that did not happen. . . . No, my shares haven’t been converted. Nothing’s been done to those shares.

Following her deposition, Lewis’s counsel contacted the former Knol-ogy transfer agent, obtained reinstatement of her 240 preferred shares and conversion of those shares to the 24.89 shares of common stock to which she was entitled. Lewis then accepted payment for her shares under the merger agreement, receiving $474 for her 24 common shares and $8.01 for her fractional share.

In September 2015, the trial court conducted a hearing on Lewis’s motion for class certification; Lewis did not appear. Before concluding the hearing, the trial court explained that it would like to take time to look through Lewis’s deposition testimony and to review the briefs again. Counsel for all parties agreed to submit proposed orders to the trial court. On December 3, 2015, the trial court issued an order denying class certification that included extensive findings of fact and conclusions of law in ruling that Lewis does not satisfy the requirement of adequacy or typicality under OCGA § 9-11-23 (a) (3) and (4). This appeal followed.

1. OCGA § 9-11-23 governs class actions and provides that a member of a class may sue as a representative party on behalf of the class as a whole only if:

(1) The class is so numerous that joinder of all members is impracticable;
(2) There are questions of law or fact common to the class;
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) The representative parties will fairly and adequately protect the interests of the class.

Subsection (a) (4) is colloquially referred to as the adequacy requirement, and it applies to both the named plaintiff and counsel. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626 n.20 (117 SCt 2231, 138 LE2d 689) (1997). Moreover, as made clear by our Supreme Court, “the ability of the plaintiff to represent the class must be considered,” and in making that determination, the experience of plaintiff’s counsel and “whether plaintiffs’ interests are antagonistic to those of the class” are “important aspects of adequate representation.” Stevens v. Thomas, 257 Ga. 645, 649 (2) (361 SE2d 800) (1987).

The Eleventh Circuit has explained that the adequacy requirement is intended to protect the legal rights of absent class members.

Because all members of the class are bound by the res judicata effect of the judgment, a principal factor in determining the appropriateness of class certification is the forthrightness and vigor with which the representative party can be expected to assert and defend the interests of the members of the class.

(Citation omitted.) London v. Wal-Mart Stores, Inc., 340 F3d 1246, 1253 (IV) (C) (11th Cir. 2003). Thus, where a plaintiff’s “participation is so minimal that they virtually have abdicated to their attorneys the conduct of the case,” the plaintiff is inadequate. London, 340 F3d at 1254 (IV) (C). See also Kirkpatrick v. J.C. Bradford & Co., 827 F2d 718, 727 (11th Cir. 1987) (trial court may properly deny class certification “where the class representatives had so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys”).

Here, we find that the trial court did not abuse its discretion in determining that Lewis was not an adequate class representative because she lacks virtually any knowledge of the substance of the claims or the nature of the relief she seeks and has yielded control entirely to her counsel. These findings are more than supported by Lewis’s own testimony at deposition. When asked about the Georgia complaint, Lewis testified:

Q. Okay. Are you aware that there — before today, are you — were you aware that there was a lawsuit concerning the Knology merger that had been filed in State Court in Georgia?
A. No.
Q. Are you aware that you are a named party to a lawsuit involving Knology that’s been filed in State Court in Georgia?
A. I was not.

It was established that Lewis did not know which law firms were representing her. She had not heard of co-lead plaintiff’s counsel or of liaison counsel and was not familiar with the actual name of the law firm she retained. She did nothing to research potential counsel before agreeing to be represented by the law firm of Levi & Korsinsky. She retained that firm after responding to an on-line solicitation. She had never met any of her attorneys prior to her deposition. And although she knew that her law firm might be entitled to a fee for representing her, she had no idea what the fee would be and had apparently done nothing to negotiate the fee for the putative class members.

In addition, Lewis was not aware that her Delaware lawsuit had been dismissed. It was not until her deposition that she learned a lawsuit had been filed in her name in Georgia. She knew virtually nothing about the merger that is the subject of this lawsuit. Lewis was unable to explain in what ways the proxy statement was misleading, and conceded that, having never read it, she was not in a position to know whether it misrepresented or omitted any material information. And, as previously noted, she did not appear at the hearing on class certification to provide any additional evidence as to her adequacy to represent the class.

Accordingly, the trial court did not err in finding Lewis inadequate on these grounds. See Wein v. Master Collectors, No. 1:94-CV-2694-JOF, 1995 U.S. Dist. LEXIS 21622, at *12 (N.D. Ga. Aug. 16, 1995) (“she has not fulfilled the role of class representative, in that she does not understand even her own claim, much less that of the putative class as a whole, and she has abandoned the prosecution of this claim entirely to her attorneys”). See also In re Kosmos Energy Ltd. Securities Litigation, 299 FRD 133, 145 (N.D. Tex. 2014) (“Failing to appear at the class certification hearing has also been considered a negative factor in the adequacy assessment.”).

2. Although Lewis’s failure to meet the adequacy requirement is itself sufficient to defeat class certification, we also uphold the trial court’s determination that Lewis did not meet the typicality requirement. OCGA § 9-11-23 (a) (3) requires that the claims of the representative parties be typical of the claims of the class. Specifically,

[a] class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23 (a) (3). Typicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.

(Citations and punctuation omitted.) Cooper v. Southern Co., 390 F3d 695, 713 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (126 SCt 1195, 163 LE2d 1053) (2006). Thus, to establish typicality, Lewis is required to prove that she has “the same interest” and “suffer[ed] the same injury as the class members.” Vega v. T-Mobile USA, Inc., 564 F3d 1256, 1275 (C) (11th Cir. 2009); MCG Health, Inc. v. Perry, 326 Ga. App. 833, 834 (755 SE2d 341) (2014) (moving party has the burden of establishing her right to class certification in the trial court).

Here, ample evidence supports the trial court’s determination that Lewis’s claims were atypical. Despite her claim that Knology breached its fiduciary duty in failing to disclose all material facts in the proxy statement, it is undisputed that because Lewis was not listed as a shareholder of record, she received no notices, proxy statement, or ballot and therefore did not vote on the merger, as compared to the 31,291,445 shares that were voted. Moreover, at her deposition Lewis testified that she does not know how she would have voted had she been afforded the opportunity at the time.

In addition, as Lewis herself described her claims at deposition, she based her complaints on the fact that she did not receive notice of the merger or payment for her shares. The trial court then noted that, following her deposition, Lewis received payment for her converted shares, and because she elected not to attend the hearing and submitted no affidavit, the record is unclear as to what, if anything, Lewis still hopes to obtain through this litigation and thus whether her claims are typical of other shareholders.

Class certification has been denied in similar circumstances. For example, in TBK Partners v. Chomeau, 104 FRD 127, 131 (E.D. Mo. 1985), the court denied class certification on the plaintiff’s securities claims because the percentage of shareholders who voted for the merger suggested that plaintiff’s claims were not shared by a majority of the proposed class members, particularly where the plaintiff did not submit sufficient evidence to the contrary. See also Rite Aid of Ga., Inc. v. Peacock, 315 Ga. App. 573, 578 (1) (b) (726 SE2d 577) (2012) (“Given [the class representative]’s failure to prove that his response to the [sale] was shared by other members of the class,” it is difficult for him to show that he is a “typical” class representative); MAZ Partners LP v. Shear, No. 11-11049-PBS, 2016 U.S. Dist. LEXIS 4831, at *18 (D. Mass. Jan. 14, 2016) (court must consider evidence that overwhelming supermajority of shareholders voted for merger).

Moreover, this Court has acknowledged that it is sometimes

necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of OCGA § 9-11-23 (a) have been satisfied. Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.

(Citation and punctuation omitted.) MCG Health, Inc., 326 Ga. App. at 836. Because Lewis, well after filing her complaint for damages and rescission, presented her preferred shares for conversion and accepted payment, there may be a question as to whether Lewis ultimately acquiesced to the merger. See also Peacock, 315 Ga. App. at 577 (1) (a) (ii) (where plaintiff protested the sale of his pharmacy records to a new pharmacy but nonetheless demanded that the new pharmacy fill his prescription, he raised the substantial possibility that defendant may defeat the action by asserting he waived or ratified the sale at issue); MAZ Partners LP, 2016 U.S. Dist. LEXIS 4831, at *18-21 (analyzing defendants’ defense of acquiescence against various class members). Based on the record before us, we cannot say that the trial court abused its discretion in finding that Lewis’s claims, which arose in an atypical fashion, are atypical of the proposed class.

In sum, the trial court conducted the rigorous analysis required in concluding that Lewis failed to meet her burden of proof with respect to typicality and adequacy under OCGA § 9-11-23 (a). And because the trial court’s analysis is supported by ample evidence in the record, we find no abuse of discretion in the denial of class certification.

Judgment affirmed.

Dillard, P. J., Branch, Mercier and Bethel, JJ., concur. McFadden, P. J., and Reese, J., dissent. Miller, P. J., and Ellington, P. J., concur in judgment only of the dissent.

McFADDEN, Presiding Judge,

dissenting.

I respectfully dissent from the majority opinion. Because the trial court made clearly erroneous findings of fact and abused its discretion in denying the motion for class certification, the trial court’s order should be reversed.

On September 21, 2012, Shelia Lewis and Equity Trading filed a proposed class action against Knology, Inc., and its former directors, claiming that they had breached their fiduciary duties to shareholders in obtaining an inadequate per share price upon a merger with another company. On December 23, 2013, Lewis and Equity Trading filed a motion for class certification pursuant to OCGA § 9-11-23. Under a consent order entered on April 14, 2015, Equity Trading was allowed to withdraw from the action, leaving Lewis as the sole plaintiff. On September 23, 2015, a hearing was held on Lewis’s motion for class certification. On December 3, 2015, the trial court entered an order denying the motion. Lewis brought this appeal from that order.

As our Supreme Court has explained, a class action is permitted only in limited circumstances and is a matter within the trial court’s discretion.

The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only, and consistent with its exceptional nature, a class action is permitted only in the limited circumstances described in OCGA § 9-11-23. The party seeking to represent a class bears the burden of proving that class certification is appropriate. . . . [T]o permit the certification of a class of plaintiffs, the named plaintiffs [must] satisfy each of the four requirements described in OCGA § 9-11-23 (a) — numerosity, commonality, typicality, and adequacy of representation — as well as [one of the] requirement^] of OCGA § 9-11-23 (b). ... Whether to certify a class is a matter committed to the discretion of the trial court, but any exercise of that discretion must comport with the statutory requirements. Moreover, the certification of a class is appropriate only to the extent that the trial court is satisfied, after a rigorous analysis, that the statutory requirements have been satisfied. As a part of this rigorous analysis, sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question. Indeed, as the United States Supreme Court has explained: Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.

Georgia-Pacific Consumer Products v. Ratner, 295 Ga. 524, 525-527 (1) (762 SE2d 419) (2014) (citations, punctuation and footnotes omitted).

In reviewing a trial court’s order on a motion for class certification, this court will affirm “the factual findings [of] the trial court. . . unless clearly erroneous, and we will review the conclusions of law for an abuse of discretion. Additionally, it is appropriate that we look to federal cases interpreting Rule 23 of the Federal Rules of Procedure, the rule upon which OCGA § 9-11-23 was based, for guidance[.]” American Debt Foundation v. Hodzic, 312 Ga. App. 806, 808 (720 SE2d 283) (2011) (citation and punctuation omitted). Here, the trial court’s order concluded that Lewis had failed to satisfy the adequacy and typicality requirements of OCGA § 9-11-23 (a) and the predominance and superiority grounds of OCGA § 9-11-23 (b).

The majority upholds the trial court’s adequacy and typicality findings but does not address the lower court’s predominance and superiority findings. Because the trial court made clearly erroneous findings of fact and abused its discretion in making such findings, the denial of class certification should be reversed.

1. Adequacy.

Division 1 of the majority opinion upholds the trial court’s finding that Lewis is not an adequate class representative “because she lacks virtually any knowledge of the substance of the claims or the nature of the relief she seeks and has yielded control entirely to her counsel.”Maj. op., p. 91. However, the factual finding that Lewis lacks virtually any knowledge of her claims or the relief sought is clearly erroneous, and the trial court abused its discretion in denying class certification on the purported basis that she has yielded control of the litigation to her counsel.

OCGA § 9-11-23 (a) (4) provides that one or more members of a class may sue orbe sued as representative parties of the class if “[t]he representative parties will fairly and adequately protect the interests of the class.” In considering this factor, “[t]he important aspects of adequate representation are whether the plaintiffs’ counsel is experienced and competent and whether plaintiffs’ interests are antagonistic to those of the class.” Jones v. Douglas County, 262 Ga. 317, 323 (2) (418 SE2d 19) (1992) (citation, punctuation and emphasis omitted).

Here, Lewis presented unrefuted evidence demonstrating her counsel’s experience and competence in class action litigation involving mergers and acquisitions. The trial court’s only pertinent finding as to the experience and competence of Lewis’s counsel was that the court did “not question the ability of lead and liaison counsel.” (Emphasis supplied.) Thus, the trial court actually found that Lewis had satisfied what is perhaps the most important adequacy factor in that she has retained experienced and competent counsel to help her adequately protect the class interests.

Although Lewis met this important adequacy factor, the trial court found that Lewis was inadequate because she has given “control of the claims entirely to counsel,” she “lack[ed] virtually any knowledge of the substance of the claims or the nature of the relief” sought, and there were conflicts between her and the majority of shareholders who voted for the merger. With regard to the purported conflicts, the mere fact that some shareholders voted to approve the merger does not create a conflict with Lewis’s central claims that the defendants breached fiduciary duties and that all the shareholders received inadequate compensation.

As for the trial court’s findings that Lewis had ceded control entirely to counsel and that she had virtually no knowledge of her own claims, the trial court cited no specific evidence in support of these findings. While the majority attempts to support the trial court’s unsupported findings by citing parts of Lewis’s deposition indicating that she did not know that her attorneys had made the procedural decision to dismiss the case in Delaware and re-file it in Georgia, did not know the actual name of her counsel’s law firm, and did not know the fee that it might earn. However, all of those matters have no bearing on the real issues pertaining to the question of adequacy First, contrary to the majority and trial court’s reliance on irrelevant facts, it is apparent from a reading of Lewis’s entire deposition testimony that she adequately understood the lawsuit and that she has actively participated in the case. Lewis testified that she had regular communication on the phone and through e-mail with her attorneys, that she had reviewed documents from counsel which had information about Knology and the merger, that she knew Knology was merging with a buyer who would pay only $19.75 per share, that she knew other bidders had wanted to purchase Knology for a higher price, and that she believed company insiders were unfairly benefit-ting from the merger while shareholders were receiving an inadequate payment. She further deposed that as class representative her duty was to fairly protect the interests of the class and that she would go to any depositions or to court as needed. Contrary to the majority’s reasoning, it is not proof of inadequate representation that Lewis has not immersed herself in the details of this litigation, or even that she is unfamiliar with possible legal developments that loom large to the professionals working on it. It is enough that she is in communication with her legal team; she is not required to be familiar with every member of it. Nor is it proof of inadequacy that she personally cannot effectively articulate the nuanced merits of her case. That is what lawyers are for. Indeed, that is why, rather than focusing on the named plaintiff’s intimate knowledge of the details of this complex litigation, “[t]he focus of adequacy of representation is on class counsel.” Georgia-Pacific Consumer Products v. Ratner, 323 Ga. App. 203, 209 (1) (d) (746 SE2d 829) (2013), reversed on other grounds, Georgia-Pacific Consumer Products, 295 Ga. 524.

Adequate class representation generally does not require that the named plaintiffs demonstrate to any particular degree that they will individually pursue with vigor the legal claims of the class... . The fact that [Lewis is] allowing [her] counsel to prosecute the case demonstrates the exercise of good judgment and not abdication of [her] obligations as class representative[ ]. [Lewis has] met [her] burden under [OCGA § 9-11-23 (a) (4)] of showing that [she] will fairly and adequately protect the interests of the class.

In re Miller Indus. Securities Litigation, 186 FRD 680, 687-688 (II) (B) (4) (N.D. Ga. 1999). Under these circumstances, the trial court abused its discretion in finding that Lewis was not an adequate class representative.

2. Typicality.

OCGA § 9-11-23 (a) (3) provides that one or more members of a class may sue or be sued as representative parties on behalf of the class if “[t]he claims or defenses of the representative parties are typical of the claims or defenses of the class[.]”

The typicality requirement under OCGA § 9-11-23 (a) is satisfied upon a showing that the defendant committed the same unlawful acts in the same method against an entire class. Thus, typicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large. A sufficient nexus is established if the claims or defenses of the class and the class representatives arise from the same event or pattern or practice and are based on the same legal theory.

Brenntag Mid South v. Smart, 308 Ga. App. 899, 904 (2) (a) (iii) (710 SE2d 569) (2011) (citations and punctuation omitted).

In this case, a sufficient nexus exists between Lewis’s claims and those of the class at large. As set forth in her complaint, Lewis alleges that the defendants breached their fiduciary duties to her and to other former Knology shareholders in connection with their agreement to sell Knology to a private equity fund for inadequate consideration of $19.75 per share. The asserted claims of both Lewis and the putative class clearly arise from the same alleged events concerning the sale of Knology and are based on the same legal theory of breach of fiduciary duty Accordingly, the typicality requirement of OCGA § 9-11-23 (a) (3) has been satisfied.

In holding otherwise, the majority and the trial court noted that Lewis had not received or read the proxy statement issued prior to the sale of the company, that she had not voted on the proposed sale, and that after filing suit she obtained payment for her former Knology stock in accordance with the merger agreement. Based on these circumstances, the majority upholds the trial court’s findings that “the record is unclear as to what, if anything, Ms. Lewis still hopes to attain in this lawsuit” and that “there was no evidence adduced that would explain what, if any, claim[s] she continues, individually, to have, and thus no basis to conclude whether or not they are typical of those of other shareholders.” These factual findings are clearly erroneous as it is apparent from Lewis’s complaint, her motion for class certification, and her deposition testimony that she is seeking monetary damages for the allegedly inadequate payment of $19.75 per share. Such claims for Lewis and other members of the class still exist, regardless of whether or not she had read the proxy statement or voted on the merger. Those distinctions would make a difference only if they represented credible defenses against Lewis’s claims, but they do not. Thus, the majority’s decision is premised on clearly erroneous factual findings by the trial court on matters that are immaterial to Lewis’s claims.

The trial court also found that Lewis had not shown typicality because “record evidence demonstrates that many class members do not share Plaintiff’s position.” The trial court did not indicate what evidence it was relying on for such a finding, but it appears that it may have been referring to the fact that a majority of the outstanding shares had voted in favor of the proposed sale of the company. But contrary to the trial court’s finding, a vote in favor of the merger does not necessarily mean that those class members would reject Lewis’s position that the $19.75 per share payment was inadequate. It seems obvious that the vote would have come out very differently if the proxy notice had announced that — as Lewis contends — for no valid reason the defendants had expedited the sale to a lower bidder when there was another bidder who had previously offered a higher price per share but needed only two more weeks to submit its final bid.

It is not a valid criticism of Lewis’s evidence that she failed to prove that other shareholders agree with her that it would have been better to sell higher. The majority’s position making such a criticism is not supported by the Georgia case it cites, Rite Aid of Ga. v. Peacock, 315 Ga. App. 573, 578 (1) (b) (726 SE2d 577) (2012). In that case, we found no typicality, noting that the putative class representative had failed to prove that his objection to the closing of a specific pharmacy was shared by other members of the class. Id. But the instant case is materially different in that it involves shares of stock that were allegedly sold for an inadequate price.

Moreover, the trial court’s finding ignores Lewis’s fundamental allegation that the proxy statement did not disclose material information needed for shareholders to cast an informed vote. Thus, the fact that a majority of shareholders may have cast uninformed votes does not render Lewis’s claims atypical.

That an investor voted in favor of the merger does not preclude that investor from having a claim against [defendants. Even the unnamed class members that voted for the merger have suffered from a similar [alleged] injury as [Lewis], as they . . . were reimbursed using the same valuation as [Lewis]. Moreover, that an investor voted for the merger is not strong evidence that the investor does not share [Lewis’s] complaints about the merger[ ]. The thrust of [Lewis’s] case is that investors were misled about the desirability of the merger. And even if a class member would have voted for the merger even if fully informed of the information that [Lewis] argue [s] should have been included in the proxy statements, that class member would still share [Lewis’s] interest in any compensatory relief that would result if the lawsuit succeeds. Based on the allegations and evidence before [us, we] find[ ] that the claims of [Lewis] are typical of those of the class.

Schulein v. Petroleum Dev. Corp., 2014 U. S. Dist. LEXIS 4154 *10-11 (2.3) (C.D. Cal. 2014) (punctuation omitted). See also Liberty Lending Svcs. v. Canada, 293 Ga. App. 731, 738 (1) (b) (668 SE2d 3) (2008) (typicality requirement met where plaintiff’s claims and those of class were one and the same).

3. Predominance and superiority.

The majority does not reach the trial court’s predominance and superiority findings. But like the typicality and adequacy findings, the trial court abused its discretion in finding that Lewis had not met these factors for class certification.

OCGA § 9-11-23 (b) (3) provides that a class action may be maintained if “[t]he court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy” Here, the trial court found that Lewis had not shown predominance because there may be individual questions involving acquiescence and ratification, and causation that arise in the litigation. However, “as long as the common questions predominate, a class may be certified even if some individual questions of law or fact exist.” Village Auto Ins. Co. v. Rush, 286 Ga. App. 688, 691 (1) (649 SE2d 862) (2007) (citation and punctuation omitted). As discussed above, the questions pertaining to the defendants’ liability for the alleged breaches of fiduciary duties and the payment of inadequate per share price upon the merger are common to all the members of the class and predominate over any possible individual questions. “Common issues of fact and law predominate if they have a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief.” Liberty Lending Svcs., 293 Ga. App. at 739 (2) (citation and punctuation omitted). Accordingly, the trial court abused its discretion in concluding that Lewis had not shown predominance.

As for the issue of superiority:

The cost... to conduct discovery, and to present the case for trial for an individual party [that owned stock] in the class . . . would be essentially the same as preparing and presenting the case for all class members. The cost of preparation of an individual claim could well exceed the potential recovery of actual damages. The efficiencies of preparation and presentation on a class-wide basis outweigh any interest of class members proceeding on an individual basis. Moreover, anyone who wishes to opt out will be given the opportunity to opt out of this class action. There [apparently] is no other competing litigation of the claims presented in this action. . . . A class action would clearly be more manageable than [multiple] separate lawsuits or mass joinder of [multiple] named plaintiffs in a single action.

Decided March 16, 2017

Reconsideration denied March 29, 2017

David A. Bain, for appellant.

Willis McKenzie, Mark L. DeGennaro, Matthew C. Alford, for appellees.

Georgia-Pacific Consumer Products, 323 Ga. App. at 212 (2) (b).

For the foregoing reasons, the trial court committed clear error and abused its discretion in denying Lewis’s motion for class certification. Accordingly, unlike the majority, I believe this court should reverse that erroneous trial court order.

I am authorized to state that Judge Reese joins in this dissent and that Presiding Judge Miller and Presiding Judge Ellington concur in judgment only as to this dissent.

       We recognize that the trial court executed the proposed findings of fact and conclusions of law submitted by Knology after the hearing on the motion for class certification, but note that the trial court did so only after asking both parties to submit proposed orders and that both parties consented to this procedure.

       Of the shares that voted, only 19,059 voted against the merger.

       The trial court also noted that, under the applicable Delaware law, any shareholder who disagreed had the right to dissent and receive, instead of the merger price, the fair value of his or her shares as determined by the Delaware Chancery Court. However, the trial court found no evidence any shareholder, including Lewis, ever exercised such right.

       The same Georgia counsel orally argued on behalf of Lewis in this appeal.

       The order also addresses Lewis’s failure to prove predominance and superiority under OCGA § 9-11-23 (b) (3). However, because the trial court did not abuse its discretion in denying class certification on other grounds, it is not necessary to address these additional issues. See Perez v. Atlanta Check Cashers, Inc., 302 Ga.App. 864, 867-68 (692 SE2d 670) (2010) (trialcourt may deny class certification where even one statutory requirement is not met).

       The trial court did not question the ability of plaintiff’s counsel.

       As this Court has previously noted, “it is appropriate that we look to federal cases interpreting Rule 23 of the Federal Rules of Civil Procedure, the rule upon which OCGA § 9-11-23 was based, for guidance.” (Citation and punctuation omitted.) Brenntag Mid South, 308 Ga. App. at 903 (2).

       With respect to Georgia counsel, Lewis testified:
      Q. Does the name David Bain mean anything to you?
      A. No.
      Q. Is the Law Offices — is David Bain a name you’ve ever heard before?
      A. No.
      Q. And is the same true of the Law Offices of David Bain?
      A. Yes, it’s true.

       Thus, the dissent’s characterization that Lewis’s deposition testimony showed “she adequately understood the lawsuit and that she has actively participated in the case” is unsound. Dissent, p. 97.

       The trial court also found the existence of a conflict between Lewis and the majority of the shareholders who voted to approve the merger because Lewis’s complaint seeks rescission of the merger, noting that a claim for rescission is different and even antagonistic to the majority’s interests. The order noted that although Lewis’s counsel stated at the certification hearing that they would be withdrawing the demand for rescission, this belated attempt to alter the remedy in order to avoid losing class certification is itself evidence of a conflict between Lewis and the putative class, citing, inter alia, Guttmann v. Braemer, 51 FRD 537, 539-40 (S.D.N.Y. 1970). Because the trial court’s order otherwise establishes that Lewis failed to prove her adequacy as a class representative, we do not separately address this additional ground.

       “The requirements of typicality and adequacy are closely related, for demanding typicality on the part of the representative helps ensure his adequacy as a representative.” (Citation and punctuation omitted.) Georgia-Pacific Consumer Products, LP v. Ratner, 295 Ga. 524, 527 (1) n.9 (762 SE2d 419) (2014).

       The dissent claims that “[i]t seems obvious that the vote would have come out very differently if the proxy notice had announced that — as Lewis contends — for no valid reason the defendants had expedited the sale to a lower bidder when there was another bidder who had previously offered a higher price per share but needed only two more weeks to submit its final bid.” Dissent, pp. 99-100. The dissent is incorrect. The proxy statement disclosed that “Bidder C” had offered a higher price per share than WOW, and described the course of the negotiations with Bidder C, including Bidder C’s request for additional time to assemble sufficient equity financing. With this information, as well as the disclosure of the class actions filed by Equity Trading and Lewis, the overwhelming majority of the shareholders voted in favor of the merger.

       Contrary to Le wis’s argument, the trial court did not require her to prove that all of the nonvoting shareholders shared her views. Rather, the trial court observed that there is a lack of evidence that any other shareholder shares her views or was in a similar position to Lewis.


source: Caselaw Access Project

author: Branch, Judge. BETHEL, Judge, ELLINGTON, Presiding Judge,

license: Public Domain

text:
    A16A2132.
    DEPARTMENT OF TRANSPORTATION v. KING.
    (798 SE2d 492)
   Branch, Judge.

Shenita King filed this personal injury action in the State Court of Bibb County against the Georgia Department of Transportation, alleging that the Department’s employee, John Peed, negligently caused a vehicle collision in which King was injured. The Department moved to dismiss King’s complaint for lack of subject matter jurisdiction, among other things, on the basis that King’s ante litem notice, which indicated that she would claim “the full amount of damages allowed by law” but did not specify in dollars the amount of the loss claimed, failed to satisfy the conditions for a waiver of sovereign immunity under the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (“GTCA”). The trial court determined that, because the GTCA caps the amount of damages for a claim under the Act at $1 million, the reference in King’s ante litem notice to the full amount of damages allowed by law was sufficient to make the Department aware that King was seeking $ 1 million. The trial court denied the Department’s motion to dismiss, and, after obtaining permission from this Court, the Department appeals. For the reasons explained below, we reverse.

Whether a plaintiff has carried her burden of establishing a waiver of sovereign immunity, which includes showing compliance with the ante litem provisions of the Act, is a question of subject matter jurisdiction. Ga. Ports Auth. v. Harris, 243 Ga. App. 508, 510 (1) (a) (533 SE2d 404) (2000), aff’d, 274 Ga. 146 (549 SE2d 95) (2001). See OCGA § 50-21-26 (a) (3) (“[T]he courts shall have no jurisdiction . . . unless and until a written notice of claim has been timely presented to the state as provided in this sub section [.] ”).

We review de novo a trial court’s denial of a motion to dismiss based on sovereign immunity grounds, which is a matter of law. However, factual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them, and the burden of proof is on the party seeking the waiver of immunity

Loehle v. Ga. Dept. of Pub. Safety, 334 Ga. App. 836, 836-837 (780 SE2d 469) (2015) (citations and punctuation omitted).

The GTCA requires a party with a potential tort claim against the State to provide the State with written notice of the claim before filing suit. OCGA § 50-21-26. Among other information, the notice must state “[t]he amount of the loss claimed[.]” OCGA § 50-21-26 (a) (5) (E). Here, King’s notice, sent August 1, 2013, stated that, as a result of a vehicle collision on or about July 26, 2013, with a vehicle driven by Department employee, John Peed, she “suffered and continues to suffer great pain and suffering.” Her notice stated:

The total damages for Mrs. King’s personal injuries have not been determined as Mrs. King is still under the care of her treating physician. Mrs. King will claim the full amount of damages allowed by law.

The trial court determined that “the full amount of damages allowed by law” is established by the GTCA under OCGA § 50-21-29 (b) (1). That subsection provides that “in any action or claim for damages brought under the provisions of [the GTCA], no person shall recover a sum exceeding $1 million because of loss arising from a single occurrence, regardless of the number of state government entities involved[.]” The trial court determined that, because the notice showed that one individual was claiming damages from a single collision, and because the State is aware that, pursuant to OCGA § 50-21-29 (b) (1), the maximum recovery allowed by the GTCA for one individual seeking damages from one occurrence is $1 million, the notice was sufficient to put the Department on notice of the amount of the loss claimed. We disagree with the trial court’s ruling.

When construing a statute, “we must presume that the General Assembly meant what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted). Thus if the language of the statute “is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (citation omitted). Where terms of art are not involved, we look to the common and customary usages of the words and their context. Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774 SE2d 688) (2015). “For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.” Id. (citation and punctuation omitted). Part of the context of the ante litem notice requirement is that “[i]f a claimant does not meet the ante litem notice requirements, then the state does not waive sovereign immunity, and therefore, the trial court lacks subject matter jurisdiction.” Silva v. Ga. Dept. of Transp., 337 Ga. App. 116, 117 (2) (787 SE2d 247) (2016) (citation and punctuation omitted). Accordingly, “strict compliance with these ante litem notice requirements is necessary, and substantial compliance is insufficient.” Bd. of Regents of the Univ. System of Ga. v. Myers, 295 Ga. 843, 845 (764 SE2d 543) (2014) (citations omitted). Nevertheless, the Supreme Court has “cautioned that strict compliance does not require a hyper-technical construction that would not measurably advance the purpose of the ante litem notice provisions.” Id. at 846 (citation and punctuation omitted).

Under the GTCA, the notice of claim must “state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances,” six items of information, as follows:

(A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.

OCGA § 50-21-26 (a) (5). It is well established that omitting only the “amount of the loss claimed” from an ante litem notice is a failure to “strictly comply with the notice requirements of the GTCA” and therefore fatal to the plaintiff’s claim. Myers, 295 Ga. at 843.

In Myers, the claimant’s ante litem notice stated that “the amount of Ms. Myers [sic] loss is yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.” 295 Ga. at 844 (punctuation omitted). The Supreme Court addressed the meaning of the “amount of loss” requirement and held that even though the full extent of the claimant’s loss was yet to be determined, she had incurred some medical expenses yet failed to report that information:

We hold that Myers’ notice failed to strictly comply with this ante litem notice requirement because it did not state any amount of loss whatsoever. Although the notice states that Myers’ loss was yet to be determined, she was still incurring medical bills, and she did not yet know the full extent of her injury, she had actually incurred medical expenses at the time she gave notice. Thus, the extent of her knowledge and belief at the time of notice included, at a minimum, the medical expenses she had incurred thus far. As the trial court correctly recognized, Myers “failed entirely to comply with a requirement despite having knowledge.”

Id. at 846 (citation and footnote omitted; emphasis supplied). The Court concluded that “the plain language [of the ante litem notice statute] requires notice of the amount of the loss claimed at [the] time [of the notice], within the belief and knowledge of the claimant, as may be practicable under the circumstances.” Id. (citation omitted). Thus, Myers should have included in the ante litem notice the amount of loss that she knew at the time and could have also stated that “based on her belief, there would be some pain and suffering damages or lost wages in the future, the amounts of which she did not yet have knowledge and could not practicably provide at that time.” Id. at 847. The Supreme Court went on to note that the amount of loss claimed in the ante litem notice does not bind the claimant; rather it provides “notice to the State of the magnitude of the claim, as practicable and to the extent of the claimant’s knowledge and belief at the time of the notice.” Id. (citation and punctuation omitted; emphasis supplied).

In the case before us, King’s ante litem notice failed to state any amount of loss, stated that she would claim “the full amount of damages allowed by law,” but indicated that she had already received care from her treating physician:

Mrs. King suffered physical pain and suffering. The total damages for Mrs. King’s personal injuries have not been determined as Mrs. King is still under the care of her treating physician. Mrs. King will claim the full amount of damages allowed by law.

Thus, at a minimum, King’s ante litem notice is flawed for the identical reason found in Myers — the notice failed to state the amount of loss King knew at the time of the notice.

Second, King’s reliance on the GTCA’s cap on liability does not solve this problem. The cap has nothing to do with the amount of a claim; rather it is a limitation on the amount that can be recovered:

no person shall recover a sum exceeding $1 million because of loss arising from a single occurrence, regardless of the number of state government entities involved; . . .

OCGA § 50-21-29 (b) (1) (emphasis supplied). Moreover, the jury will hear information about the total amount of the plaintiff’s claims without ever hearing about the limitation on recovery: “The existence of these caps on liability shall not be disclosed or suggested to the jury during the trial of any action brought under this article.” Id. Accordingly, the cap provides no limitation on the amount the plaintiff can claim in the lawsuit. Correspondingly, as already shown, the Supreme Court has made clear that the “amount of loss claimed” in the ante litem notice does not bind the claimant, either. Thus, the reference to the GTCA’s cap on recovery provides no information whatsoever about the amount that King may claim in the suit.

Third, the Supreme Court has explained that the ante litem requirements “ensure that the State receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit,” and that it should provide “notice to the State of the magnitude of the claim.” Myers, 295 Ga. at 845, 847 (citation omitted). The fact that the claimant may have losses that greatly exceed the GTCAcap on the amount that can be recovered is certainly relevant to the issue of settlement.

Given the above, the trial court’s interpretation of the statute is erroneous as a matter of law. King’s statement that she intended to “claim the full amount of damages allowed by law” fails to satisfy the definition of “the amount of loss claimed” provided by the Supreme Court; it refers to a cap on the amount she might be allowed to recover without providing any information about the amount she can claim to the jury; and it fails to provide meaningful information to the State for purposes of settlement.

For the reasons stated above, we reverse the denial of the Department’s motion to dismiss.

Judgment reversed.

Doyle, C. J., Dillard, P. J., Andrews and Ray, JJ., concur. Bethel, J., concurs fully and specially. Ellington, P. J., Mercier and Reese, JJ., dissent.

BETHEL, Judge,

concurring fully and specially.

I join fully in Judge Branch’s opinion and write specially to emphasize an additional point supporting the reversal of the trial court’s order.

The dissent, the trial court, and King urge the proposition that “the full amount of damages allowed by law” is the legal and linguistic equivalent of saying “the maximum allowed by a statutory cap on damages” (which in this instance is $1 million). Respectfully, this is not precisely the case.

It is clear that “[i]f a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury receive d[.]” S ee Mabelton Parkway CVS v. Salter, 273 Ga.App. 477, 482 (2) (b) (615 SE2d 558) (2005) (citation and punctuation omitted); see also Carroll v. Rock, 220 Ga.App. 260, 260 (1) (469 SE2d 391) (1996). It follows then that “the full amount of damages allowed by law” means the amount of damages incurred and proven, not to exceed the statutory cap. Stated differently, the cited statutory cap is not the only “cap.” Actual damages are always a “cap” on recovery in this class of cases. Mabelton Parkway CVS, 273 Ga. App. at 482 (2) (b). This reality undermines King’s argument and highlights the value of this provision of the ante litem notice requirement.

Consider a plaintiff who incurs a $50,000 loss under the circumstances alleged in King’s complaint. The “full amount of damages allowed by law” to this hypothetical plaintiff is $50,000. Thus, a purported ante litem notice that merely seeks “the full amount of damages allowed by law” does not sufficiently inform the governmental entity of the magnitude of the claim — even if the entity is aware of a cap — because the “full amount” might be any amount between $1 and the applicable cap. In other words, such a notice provides no information about the claimed damages that the governmental entity did not already know.

ELLINGTON, Presiding Judge,

dissenting.

I believe that the trial court correctly determined that, although Shenita King’s ante litem notice did not specify in dollars the amount of the loss claimed, the statement in her ante litem notice that she would claim “the full amount of damages allowed by law” was sufficient to make the Department aware that she was seeking $1 million, in view of of OCGA § 50-21-29 (b) (1), which caps the amount of damages for a claim under the Georgia Tort Claims Act at $1 million. Accordingly, I respectfully dissent.

Although strict compliance with the Act’s ante litem notice requirements is necessary, and substantial compliance is insufficient, the Supreme Court of Georgia has cautioned that “strict compliance does not require a hyper-technical construction that would not measurably advance the purpose of the ante litem notice provisions. Nor does strict compliance take precedence over the plain language or meaning of the statute.” (Citations and punctuation omitted.) Bd. of Regents of Univ. System of Ga. v. Myers, 295 Ga. 843, 846 (764 SE2d 543) (2014). See also Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007) (accord). “The purpose of [the ante litem notice] requirements is to ensure that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.” (Citation omitted.) Williams v. Ga. Dept. of Human Resources, 272 Ga. 624, 625 (532 SE2d 401) (2000). The function of the ante litem notice is not to commit a plaintiff to accepting a certain amount in settlement, but it must “provide notice to the State of the magnitude of the claim, as practicable and to the extent of the claimant’s knowledge and belief at the time of the notice.” Bd. of Regents of Univ. System of Ga. v. Myers, 295 Ga. at 847. See Dorn v. Ga. Dept. of Behavioral Health and Developmental Disabilities, 329 Ga. App. 384, 387 (765 SE2d 385) (2014) (accord); Driscoll v. Bd. of Regents of Univ. System of Ga., 326 Ga.App. 315, 318 (757 SE2d 138) (2014) (accord).

Because OCGA § 50-21-29 (b) (1) caps the damages allowed for a single occurrence at $1 million, it is evident that the phrase “the full amount of damages allowed by law” means $1 million in King’s case. I agree with the conclusion of the trial court, therefore, that “[i]n looking at [King’s] Ante Litem Notice as a whole” the notice effectively did communicate a specific dollar amount, although it did so without using the word “dollar” or the symbol “$.” In my view, King’s ante litem notice gave the Department notice of the magnitude of her claim sufficient to serve the Act’s purpose of allowing the Department to pursue settlement negotiations. The Department entirely fails to articulate how it is in a worse position in seeking to negotiate a settlement with King because her notice stated that she would be seeking “the full amount allowed by law” rather than stating that she would be seeking “$1 million.” Because requiring that the specific dollar figure of “$1 million” be substituted would be a hyper-technical construction of OCGA § 50-21-26 (a) that would not measurably advance the purpose of the Act’s ante litem notice requirements, the trial court did not err in denying the Department’s motion to dismiss.

Decided March 15, 2017

Reconsideration denied March 29, 2017

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston-Pope, Senior Assistant Attorney General, Matthew I. Dowling, Melissa A. Tracy, Assistant Attorneys General, for appellant.

I am authorized to state that Judge Mercier and Judge Reese join in this dissent.

Adams, Jordan & Herrington, Virgil L. Adams, Dawn M. Lewis, for appellee.

       See OCGA § 5-6-34 (b) (applications for interlocutory appeals).

       Of course, punitive damages, treble damages and the like are provided for by law as exceptions to this rule. None of these exceptions is implicated by this case.

       OCGA § 50-21-29 (b) (1) provides:
      ... in any action or claim for damages brought under the provisions of [the Act], no person shall recover a sum exceeding $1 million because of loss arising from a single occurrence, regardless of the number of state government entities involved. ... The existence of these caps on liability shall not be disclosed or suggested to the jury during the trial of any action brought under [the Act].

       Thus, this case can be distinguished from cases where we have found that an ante litem notice was deficient where it entirely failed to state the amount of the loss. See Silva v. Ga. Dept. of Transp., 337 Ga. App. 116, 117-119 (2) (787 SE2d 247) (2016) (An ante litem notice was deficient where it stated that the plaintiff was “still receiving treatment for her injuries.”); Dorn

        v. Ga. Dept. of Behavioral Health and Developmental Disabilities, 329 Ga. App. at 384, 387-389 (An ante litem notice was deficient where it stated that the “amount of loss suffered” is the “monetary value of the decedent’s life in an amount sufficient to appropriately penalize [the] State’s deliberately indifferent, negligent breach of [its] duty] ] and . . . [its] deliberately indifferent, negligent violation of the decedent’s rights.”) (punctuation omitted); Driscoll v. Bd. of Regents of Univ. System of Ga., 326 Ga. App. at 316, 318 (An ante litem notice was deficient where it requested an “amicable resolution.”); Bd. of Regents of Univ. System of Ga. v. Myers, 295 Ga. at 844, 846-847 (An ante litem notice was deficient where it stated that “the amount of [the plaintiff’s] loss is yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.”) (punctuation omitted); Perdue v. Athens Tech. College, 283 Ga. App. 404, 406, 408 (641 SE2d 631) (2007) (An ante litem notice was deficient where it stated that the plaintiff suffered “economic and noneconomic losses.”). In none of these cases did an ante litem notice state that the plaintiff sought “the full amount of damages allowed by law.”

       The Department contends that “allowing each and every plaintiff to state that they were seeking the full amount of damages allowed under the law would mean that the State had no knowledge of the amount of damages sought by the plaintiff.” Under the majority’s analysis, however, “each and every plaintiff” is permitted to state that they are seeking $1 million, just because that is a dollar figure, even though that may reflect an individual plaintiff’s hyperbolic value of the kinds of losses, like pain and suffering, that are difficult to value and are ultimately subject to an impartial jury’s enlightened conscience. Bd. of Regents of Univ. System of Ga. v. Myers, 295 Ga. at 846; Dorn v. Ga. Dept. of Behavioral Health and Developmental Disabilities, 329 Ga. App. at 386; Driscoll v. Bd. of Regents of Univ. System of Ga., 326 Ga. App. at 317-318. It is difficult to see how greater specificity advances the purposes of the ante litem notice. See Bd. of Regents of Univ. System of Ga. v. Myers, 295 Ga. at 846-847 (A statement of the amount of the loss would have been sufficient if it stated an amount that included the plaintiff’s medical expenses as of the date of the notice and “also stated that, based on her belief, there would be some pain and suffering damages or lost wages in the future, the amounts of which she did not yet have knowledge and could not practicably pro--vide at that time.”).


author: Reese, Judge.

text:
    A16A2192, A16A2193.
    REDCEDAR, LLC v. CML-GA SOCIAL CIRCLE, LLC; and vice versa.
    (798 SE2d 334)
   Reese, Judge.

In these companion cases, the parties dispute whether Redcedar, LLC, a company that cut and removed timber from certain property, can be held liable under the Georgia Timber Collateral Conversion Statute (“GTCCS”), OCGA § 51-12-51, and, if so, the proper measurement of damages arising from such conversion. In Case No. A16A2192, Redcedar appeals from an order of the Superior Court of Newton County granting a motion for partial summary judgment filed by CML-GA Social Circle, LLC (“CML-GA”), based on a finding that Redcedar was liable under the GTCCS as a matter of law. In Case No. A16A2193, CML-GA appeals from a related order granting Red-cedar’s cross-motion for partial summary judgment as to the applicable measure of damages to be determined at trial. For the reasons set forth infra, we affirm the grant of partial summary judgment to CML-GAin Case No. A16A2192, and we affirm in part and reverse in part the judgment in Case No. A16A2193.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

With these guiding principles in mind, we turn now to the parties’ specific claims of error.

Case No. A16A2192

This case arose from the cutting and removal of timber from portions of undeveloped property in Newton County. In 2007, Carolyn Penland executed a security deed to the entire 463.74-acre parcel of land as collateral for three promissory notes.

In October 2010, the security deed executed by Penland was assigned to CML-GA. When Penland defaulted on the three notes secured by the security deed, CML-GA filed suit on the notes. In August 2012, CML-GA obtained a default judgment against Penland for approximately $9.6 million in principal, accrued interest, late charges, and attorney fees. CML-GA did not, however, institute foreclosure proceedings pursuant to the security deed at that time.

Georgia Timber, LLC, subsequently contracted with Little River Construction Company (a company ownedby Penland’s son, Michael), for the “thinning and removal” of timber from the property. In September 2013, Georgia Timber applied for a timber harvest permit from Newton County, and it hired Redcedar to cut the trees and haul them off the property. Georgia Timber then sold the timber to third parties.

In October 2014, CML-GA discovered that someone had “clear-cut” several acres of the property and removed the timber. In response, CML-GA filed a complaint for conversion against the Penlands, Georgia Timber, Redcedar, and others, asserting that they had illegally cut and removed timber from the property without first obtaining its written permission and that, asa result, they were liable under the GTCCS. The GTCCS provides, in relevant part, as follows:

Every person, firm, or corporation who, without the written consent of the person holding legal title to land or to an interest in land as security for debt, . . . buys, sells, cuts, removes, holds, disposes of, changes the form of, or otherwise converts to the use of himself, itself, or another any trees growing or grown on such land shall be liable to the holder of the legal title for such trees, in any form, bought, sold, cut, removed, held, disposed of, changed in form, or otherwise converted by him or it, or for the value of such trees, provided that recovery may not be for more than the unpaid portion of the secured indebtedness, interest thereon, and a reasonable attorney’s fee. Recovery may be had by action at law from one who purchases, without the consent of the holder of the legal title, such interest in the trees, mineral or other rights, or interest in the encumbered real estate, either jointly or severally, with the holder of the equitable title.

In its complaint, CML-GA alleged that, because the removal of the timber had diminished the fair market value of the real property, the damaged property provided “inadequate security to cover the debt owed [by Penland] under the Security Deed.”

CML-GA subsequently amended its complaint to add allegations that, under the GTCCS, Redcedar was a “purchaser” of the timber removed from the property or, in the alternative, purchased an “interest” in that timber. CML-GA also added a claim that Redcedar “aided, abetted, and assisted” Georgia Timber in the unauthorized removal and purchase of the timber removed from the property and, as a result, was just as liable as Georgia Timber for damages under the GTCCS.

In February 2015, while this conversion action was pending, CML-GA instituted foreclosure proceedings under the security deed. CML-GA purchased the property at the foreclosure sale, crediting $4.4 million toward Penland’s outstanding debt on the notes.

Then, in July 2015, CML-GA filed a motion for partial summary judgment in the instant conversion action, seeking a ruling that the co-defendants were liable as a matter of law under the GTCCS. In its brief and documents supporting the motion, CML-GA asserted that, after it credited $4.4 million from the foreclosure sale to the balance owed on the promissory notes that were subject to the security deed, a deficiency remained unpaid on the notes. It claimed that the co-defendants were liable for this “unpaid portion of the indebtedness [that was] secured by the security deed.”

In response to CML-GA’s motion for partial summary judgment, Redcedar filed a cross-motion for summary judgment on CML-GA’s complaint, denying that it was liable under the GTCCS because, although it had cut and removed timber from the property, it had been hired to do so by Georgia Timber and, as a result, was simply acting as a contractor under the direction of Georgia Timber. Redcedar also contended that CML-GA could not recover money damages under the GTCCS because it had foreclosed on its security interest in the property According to Redcedar, the plain language of the statute provided that a plaintiff’s “recovery may not be for more than the unpaid portion of the secured indebtedness, interest thereon, and a reasonable attorney’s fee.” It argued that the foreclosure on the security deed extinguished any “secured indebtedness” upon which to claim damages under the statute. Further, Redcedar argued that CML-GA should be estopped from trying to recover a deficiency judgment, i.e., the difference between the outstanding balance on the notes and the proceeds from the foreclosure sale, because CML-GA had failed to obtain a judicial confirmation of the sale, pursuant to OCGA § 44-14-161. Finally, it argued that, even if CML-GA had secured a judicial confirmation of the sale, it should be estopped from seeking a deficiency judgment from Redcedar because CML-GA had failed to provide it with notice of the confirmation proceedings, as required by OCGA § 44-14-161 (c).

Following motion hearings, the trial court denied Redcedar’s motion for summary judgment and granted partial summary judgment to CML-GA, finding that the co-defendants were liable as a matter of law under the GTCCS. Redcedar appeals from the court’s order.

1. Redcedar contends that the trial court erred in concluding that it was liable as a matter of law under the GTCCS, arguing that it is not within the class of defendants subject to liability under the statute. Given the plain language of the statute, however, this argument lacks merit.

In interpreting any statute, we necessarily begin our analysis with familiar and binding canons of construction. Indeed, in considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant. And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage. In sum, where the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.

With regard to the GTCCS, the General Assembly left little doubt as to how it expected this statute to be construed. Indeed, the statute explicitly provides as follows:

Every person, firm, or corporation who, without the written consent of the person holding legal title to land or to an interest in land as security for debt, . . . buys, sells, cuts, removes, holds, disposes of, changes the form of, or otherwise converts to the use of himself, itself, or another any trees growing or grown on such land shall be liable to the holder of the legal title for such trees, in any form, bought, sold, cut, removed, held, disposed of, changed in form, or otherwise converted by him or it[.]

In this case, Redcedar did not dispute that it cut and removed timber from the property without CML-GA’s written authorization. It argued, however, that it had been hired as a contractor by Georgia Timber to cut and remove the timber and, as a result, it could not be held directly liable for its actions in this case. In support of this argument, Redcedar showed that it was not a party to the timber removal contract between Georgia Timber and Little River, and it did not obtain the timber removal permit from Newton County. Further, Redcedar argued that, as a contractor hired by Georgia Timber, it provided services pursuant to Georgia Timber’s instructions and under the company’s direction; that it had relied on Georgia Timber to obtain the necessary consent and permits to authorize the timber removal; that this reliance was consistent with industry standards and practices; and that, while it was compensated by Georgia Timber for its services, it did not purchase or sell the timber at issue in this case.

However, we decline to construe the plain language of the GTCCS in a manner that provides for an exception to liability for those who admittedly violated the statute but insist that they only did so as an agent or employee of another. Indeed, doing so would run afoul of the General Assembly’s explicit creation of broad, strict liability for anyone who cuts, removes, or otherwise converts timber from property without the written consent of those with an ownership or security interest in the land. Consequently, we conclude that the trial court did not err in finding that Redcedar was liable to CML-GA under the GTCCS as a matter of law and in granting partial summary judgment to CML-GA on this issue.

2. Nevertheless, Redcedar contends that, despite the above-quoted language, OCGA § 51-12-51 (a) limits liability to either the purchasers of the timber at issue or the holder of the equitable title to the property. In support of this argument, Redcedar relies on the second sentence of the statute, which provides that “[rjecovery may be had by action at law from one who purchases, without the consent of the holder of the legal title, such interest in the trees, mineral or other rights, or interest in the encumbered real estate, either jointly or severally, with the holder of the equitable title.”

However, the fact that this sentence provides that the holder of legal title or a security interest in the property may also recover from the purchaser of an interest in the subject trees, the holder of equitable title to the property, or both, does not negate or undermine the strict liability that the first sentence of the statute expressly imposes on those who, inter alia, cut and remove trees without written consent. Indeed, Redcedar’s proposed construction of the GTCCS would render the statute’s express imposition of strict liability for cutting and removing trees without consent meaningless, essentially treating it as mere surplusage.

Consequently, we find this argument to be without merit.

3. Redcedar contends that the trial court erred in rejecting its argument that CML-GAcould not recover under the GTCCS because it no longer held a security interest in the property. Redcedar also argues that the trial court erred in finding that it was liable to CML-GA for “the unpaid portion of the secured indebtedness” under the GTCCS, arguing that CML-GA was seeking a deficiency judgment following its foreclosure on the property.

Redcedar has failed, however, to show that the trial court specifically ruled on these issues. “When this Court reviews a decision of a trial court on a motion for summary judgment, it sits as a court for the correction of errors of law. An error of law has as its basis a specific ruling made by the trial court.” It follows that, because the trial court did not rule on these issues, there is nothing for this Court to review.

Case No. A16A2193

In this case, CML-GA appeals from the trial court’s grant of Redcedar’s cross-motion for partial summary judgment as to the appropriate measure of damages to be applied in this case.

4. CML-GA contends that the trial court erred in limiting the amount of damages it could recover at trial to the value of the trees as personal property, instead of allowing it to recover damages in the amount of the diminished value of the land that resulted from Redcedar’s unauthorized removal of timber. We disagree.

As shown above, the GTCCS specifically provides that a person who converts timber shall be liable “for such trees, in any form, bought, sold, cut, removed, held, disposed of, changed in form, or otherwise converted by him or it, or for the value of such trees [,] ” In this case, the trial court ruled that, given this plain language, “recovery under OCGA § 51-12-51 (a) shall be limited to the value of the removed trees as personal property.”

CML-GA has not identified anything in the text of the GTCCS that would allow it to recover damages in the amount of the diminished value of the property due to the unauthorized removal of timber. It follows that CML-GA has failed to show any error in the trial court’s grant of summary judgment to Redcedar on this issue.

5. Nevertheless, CML-GA contends that the court abused its discretion in refusing to allow it to present evidence of the diminished value of the property at trial for the purpose of showing that it is entitled to attorney fees and punitive damages. It argues that such evidence is relevant to show that Redcedar acted in bad faith and in conscious indifference to the consequences, contending that, when Redcedar cut and removed the timber, it knew that its actions would diminish the value of the property

Decided March 15, 2017

Reconsiderations denied March 29, 2017

Hall Booth Smith, Joel L. McKie, Andrew K. Hazen, for Redcedar, LLC.

Weissman, Nowack, Curry & Wilco, Bradley A. Hutchins, David S. Klein, for CML-GA Social Circle, LLC.

It is axiomatic that, “[e]vidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.” Under the circumstances presented here, we conclude that the trial court erred in refusing to allow CML-GA to present evidence of the diminished value of the property following Redcedar’s removal of timber at trial for the limited purpose of demonstrating its entitlement to attorney fees and punitive damages. Thus, we reverse that portion of the trial court’s order in Case No. A16A2193.

Judgment affirmed in Case No. A16A2192. Judgment affirmed in part and reversed in part in Case No. Al 6A2193.

Dillard, P. J., and Bethel, J., concur.

       The court’s order also granted summary judgment to CML-GA as to the liability of Redcedar’s co-defendants, Georgia Timber, LLC, and its agent, Barry Bedingfield. In addition, the court denied cross-motions for summary judgment filed by Redcedar and Bedingfield. Although Bedingfield initially appealed from the summary judgment order, this Court granted his motion to withdraw the appeal on August 19, 2016. Georgia Timber and CML-GA settled the case after the court entered summary judgment against the former on the issue of liability. Thus, Georgia Timber is not a party to these appeals.

        Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003) (citation and punctuation omitted).

       OCGA § 51-12-51 (a).

        Holcomb v. Long, 329 Ga. App. 515, 517-518 (1) (765 SE2d 687) (2014) (citations and punctuation omitted).

       See generally Holcomb, 329 Ga. App. at 518 (1).

       OCGA § 51-12-51 (a) (emphasis supplied).

       See generally Holcomb, 329 Ga. App. at 520 (1).

       We note that this Court has previously held that individuals who cut or removed trees without the requisite consent could be held liable under the GTCCS, although the rulings did not expressly address the issues raised by Redcedar in this appeal. See, e.g., AgSouth Farm

        Credit v. Gowen Timber Co., 336 Ga. App. 581, 588-592 (2) (b) (784 SE2d 913) (2016) (holding that a company that cut, removed, and sold timber from land that secured a debt held by the plaintiff was liable as a matter of law under the GTCCS because it had not first obtained the written consent of the plaintiff); Thakkar v. St. Ives Country Club, 250 Ga.App. 893, 896 (5) (553 SE2d 181) (2001) (holding that a person who cut and removed timber from a golf course was liable to the owners of the course as a matter of law under the GTCCS, regardless how the person subsequently disposed of the timber, i.e., by using, selling, or discarding it); Southern Land & Cattle Co. v. Simmons, 202 Ga. App. 734, 736 (415 SE2d 329) (1992) (holding that a person who cut and removed timber pursuant to the direction of the person in possession of the property, but without the written consent of the company holding legal title to the land, could be held liable under the GTCCS); Cordele Sash, Door & Lumber Co. v. Prudential Ins. Co. of America, 86 Ga. App. 738, 742 (2) (72 SE2d 497) (1952) (holding that a company that cut and removed timber from land that secured a debt held by the plaintiff was liable as a matter of law under an earlier version of the GTCCS because it had not first obtained the written consent of the plaintiff).

       OCGA § 51-12-51 (a) (emphasis supplied).

       See Hill v. Owens, 292 Ga. 380, 383 (2) (a) (738 SE2d 56) (2013) (“[T]his Court avoids interpreting statutes in a manner that renders any portion of them surplusage or meaningless.”) (citation omitted); Motors Acceptance Corp. v. Rozier, 278 Ga. 52, 53 (1) (597 SE2d 367) (2004) (“This Court is to construe the statute to give sensible and intelligent effect to all of its provisions and to refrain from any interpretation which renders any part of the statute meaningless.”) (citation and punctuation omitted); see also Holcomb, 329 Ga. App. at 517-518 (1).

        Williams v. United Community Bank, 313 Ga. App. 706, 707-708 (722 SE2d 440) (2012) (citation and punctuation omitted).

       Id.

       OCGA § 51-12-51 (a) (emphasis supplied).

       See AgSouth Farm Credit, 336 Ga. App. at 585, 592 (3) (remanding for a new trial on damages only in a conversion case brought under the GTCCS, in which the plaintiff sought to recover the amount paid to the defendant for “the value of the .. . timber”); Cordele Sash, Door & Lumber Co., 86 Ga. App. at 742 (2) (affirming the trial court’s submission of “the amount of the value of the timber cut and removed by the defendant” to the jury).

       SeeOCGA §§ 13-6-11 (“The expenses oflitigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”); 51-12-5.1 (b) (“Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”).

        AgSouth Farm Credit, 336 Ga.App. at 593 (3) (a), (b) (citation and punctuation omitted). See also OCGA §§ 24-4-401 (“[T]he term ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”); 24-4-402 (“All relevant evidence shall be admissible,” unless constitutional or other legal authority renders it inadmissible.).


author: BARNES, Presiding Judge.

text:
    A17A0448.
    UDDIN v. COUNTRY PLACE CONDOMINIUM ASSOCIATION, INC.
    (798 SE2d 733)
   BARNES, Presiding Judge.

Country Place Condominium Association, Inc., brought this action against Habeeb Uddin seeking judicial foreclosure of its lien against the condominium unit owned by Uddin and damages for unpaid association fees. The trial court subsequently awarded summary judgment to Country Place on its claims and entered final judgment in its favor against Uddin. On appeal, Uddin argues that he was never served with Country Place’s motion for summary judgment and thus was never provided any notice or an opportunity to be heard on the motion before the trial court ruled on it. Notably, Country Place concedes on appeal that Uddin never received notice of its motion for summary judgment because the motion was mailed to the wrong address. Accordingly, we vacate the trial court’s final order granting summary judgment to Country Place, and we remand the case to the trial court to afford Uddin an opportunity to respond to the summary judgment motion before it is ruled upon by the trial court.

The relevant facts are undisputed. Uddin owned a condominium unit in the Country Place development that was subject to mandatory condominium association fees. Alleging that Uddin had failed to pay his association fees, Country Place filed this action against him seeking judicial foreclosure of its lien on his condominium unit and damages. The complaint alleged that Uddin currently resided at an address in Alpharetta, Georgia, and the affidavit of service stated that the summons and complaint had been served on a person over the age of 18 identified as “Mr. Muzaffer” at the Alpharetta address.

Proceeding pro se, Uddin filed an answer in which he denied any liability for unpaid association fees and also denied that he currently resided at the Alpharetta address alleged in the complaint. Uddin provided a different address in Atlanta as his current residence under his signature on his answer and on the notarized verification form filed with his answer.

Country Place moved for summary judgment on its claims. The certificate of service for the motion reflected that Country Place mailed its motion to Uddin at the Alpharetta address where the complaint had been served rather than to the Atlanta address that Uddin had listed on his answer and verification. Uddin did not respond to the motion for summary judgment, and the trial court subsequently granted the motion and entered final judgment in favor of Country Place. Uddin retained counsel and filed the instant appeal.

A motion for summary judgment is a vehicle for disposing of a controversy without the necessity of a trial. It is, as the description shows, a summary disposition of the issues in order to efficiently resolve litigation. Nevertheless, due process requires that the respondent not be surprised; rather, that he be given reasonable opportunity to refute the movant’s showing that there are no genuine issues of material fact. It is error to grant a motion for summary judgment... without giving notice or the opportunity to be heard.

(Punctuation and footnotes omitted.) Cofield v. Halpern Enterprises, 316 Ga. App. 582, 583 (730 SE2d 63) (2012).

As to the service of a motion for summary judgment on a party in an ongoing proceeding, “the constitutional right to notice and due process can be satisfied through... service by mail in accordance with OCGA § 9-11-5 (b).” Green Tree Servicing v. Jones, 333 Ga. App. 184, 189 (2) (775 SE2d 714) (2015), citing Southworth v. Southworth, 265 Ga. 671, 674 (3) (461 SE2d 215) (1995). See Freeman v. City of Brunswick, 193 Ga. App. 635, 635 (388 SE2d 746) (1989). OCGA § 9-11-5 (b) provides, in relevant part, that service of a motion can be perfected on a party “by mailing it to the person to be served at the person’s last known address or, if no address is known, by leaving it with the clerk of the court.” But service by mail on the wrong address where “a simple review of the record would have revealed [a] change in . . . address,” with the result that the person intended to be served was deprived of an opportunity to be heard before the trial court ruled on the matter, violates due process and requires that the court’s ruling be set aside. (Citation and punctuation omitted.) Moore v. Davidson, 292 Ga. App. 57, 59-60 (663 SE2d 766) (2008). See Mitsubishi Motors Credit of America v. Robinson & Stevens, Inc., 263 Ga. App. 168, 171 (1) (587 SE2d 146) (2003).

In the present case, Uddin asserts that Country Place’s motion for summary judgment was mailed to the wrong address, depriving him of notice and an opportunity to be heard on the motion before the trial court ruled on it, and Country Place, to its credit, agrees with Uddin’s assertion. Consequently, we vacate the trial court’s final order granting summary judgment to Country Place and remand for Uddin to have an opportunity to be heard before the motion is ruled upon by the trial court. See Jackson v. Bekele, 152 Ga. App. 417, 421 (2) (263 SE2d 225) (1979) (trial court erred in granting summary judgment where the party opposing the motion was never given notice and opportunity to be heard on the motion). See Green Tree Servicing, 333 Ga. App. at 190 (2) (vacating trial court’s order and remanding for further proceedings in light of failure to provide party with notice and opportunity to respond); Moore, 292 Ga. App. at 60 (setting aside order where legal notice was mailed to wrong address); Mitsubishi Motors Credit of America, 263 Ga. App. at 171 (1) (setting aside order where legal notice was mailed to wrong address). In so ruling, we express no opinion as to the viability of any arguments or defenses Uddin may raise on remand in response to Country Place’s summary judgment motion.

Decided March 29, 2017.

Briskin, Cross & Sanford, David M. Messer, for appellant.

Lazega & Johanson, David B. Fife, Dan D. Wright, Jr., P. Patrick Pou, for appellee.

Judgment vacated and case remanded with direction.

McMillian and Mercier, JJ., concur.