author: Branch, Judge.

text:
    A14A2237.
    In the Interest of H. J. C., a child.
    (771 SE2d 184)
   Branch, Judge.

The State brings this appeal from the juvenile court’s dismissal without prejudice of the State’s petition alleging that H. J. C. (“the child”) had committed the delinquent act of violating his probation. On appeal, the State argues that the juvenile court erred when it denied the State’s motion to recuse and when it granted the child’s motion to dismiss. We conclude that although the trial court properly denied the State’s motion to recuse, it erred when it dismissed the petition. We therefore affirm in part and reverse in part.

The record shows that on March 21, 2014, the State filed a petition alleging that the child had committed the delinquent act of violating his probation for previous delinquencies including burglary and criminal damage to property. The petition cited both OCGA § 15-11-2 (19), which includes a violation of probation by a child previously adjudicated as delinquent in its definition of a “delinquent act,” and OCGA § 15-11-608 (b), which provides that a prosecutor informed of a violation of probation “may file a motion in the [juvenile] court for revocation of probation.” At a hearing on March 26, 2014, the State noted that it was orally amending its petition to proceed under OCGA § 15-11-2 (19) (B) only, and not under OCGA § 15-11-608. The juvenile court then continued the hearing until April 4, 2014, in order to obtain argument on the interplay between these two new Juvenile Code sections.

On March 27, 2014, however, the State filed a motion to recuse the juvenile court with a supporting affidavit alleging that although the child had not objected to the State’s proposed amendment, the juvenile court had “sua sponte voiced her concerns” as to the interplay between the two Code sections, such that “the entire matter of controversy was raised by the [j]udge,” whose “impartiality and bias would reasonably be questioned if [she] were to hear argument on the Court’s own motion and decide [her] own motion.” On March 31, the juvenile court denied the motion to recuse as insufficient under Uniform Juvenile Court Rule 27.2.

At the outset of the continued hearing held on April 4, 2014, the juvenile court stated the issue before it as whether the State should move to revoke probation under OCGA § 15-11-608 (b) rather than to petition the court to adjudicate a delinquency as defined by OCGA § 15-11-2 (19) (B) to include a violation of probation imposed on a child previously found delinquent. The child then moved to dismiss the petition on the ground that a petition charging a juvenile with the delinquent act of violating probation was not proper under the new Juvenile Code. After hearing argument from both sides, the trial court granted the child’s motion and dismissed the State’s petition without prejudice on the ground that OCGA § 15-11-608 created “a new procedure for addressing violations of probation,” including the mechanism of bringing such a violation to the juvenile court’s attention by means of motion rather than petition, such that “petitions [based on an alleged probation violation] filed pursuant to OCGA § 15-11-2 (19) (B) are not valid.” This appeal followed.

1. The State first argues that the juvenile court erred when it denied the State’s motion to recuse as legally insufficient. We disagree.

The Supreme Court of Georgia has summarized the procedure governing motions to recuse, set out in both Uniform Superior Court Rule 25 and Uniform Juvenile Court Section 27, as follows:

[T]he motion [must] be in writing and ... accompanied by affidavits that present all evidence thereon and fully assert the facts upon which the motion is founded. The supporting affidavit must state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons, and circumstances of the extrajudicial conduct or statements demonstrating bias. Bare conclusions and opinions stated in the affidavit are not legally sufficient to support the motion or warrant further proceedings. The motion and supporting affidavits initially are presented to the judge whose recusal is sought; the judge immediately determines the timeliness of the motion, the legal sufficiency of the affidavits and, assuming any of the facts of the affidavits to be true, whether recusal would be warranted. If all three prongs are met, another judge is assigned to hear the motion to recuse. The judge hearing the motion has the discretion to consider the motion solely on the affidavits or convene an evidentiary hearing, and the ruling on the merits of the motion shall be accompanied by written findings of fact and conclusions.

Mayor & Aldermen of City of Savannah v. Batson-Cook Co., 291 Ga. 114, 116 (728 SE2d 189) (2012) (citations and punctuation omitted.). Determining whether an affidavit supporting a motion to recuse “is legally sufficient, and whether the facts asserted authorize recusal[,] . . . does not require the exercise of discretion; rather, they present questions of law, for which the appropriate standard of review is de novo.” Id. at 119 (1) (citations and punctuation omitted).

Even assuming the facts pled in the State’s affidavit to be true, this record shows that the juvenile court did not err when it denied the motion to recuse. As the juvenile court noted, “[i]t is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious.” Jones County v. A Mining Group, 285 Ga. 465, 468 (678 SE2d 474) (2009) (citation and punctuation omitted). This juvenile court merely sought further legal argument on the question of the interplay between OCGA §§ 15-11-2 (19) (B) and 15-11-608 (b), both of which were cited in the State’s petition and had recently been adopted into law. Even if the State was caught unawares by the court’s questions concerning these statutes or was inconvenienced by its eventual ruling that the petition was defective, such circumstances do not warrant recusal, which “is not required simply because a judge may have to issue a ruling that might offend an individual or group that could possibly take adverse action against him.” Id. at 467 (citation and punctuation omitted). On the contrary, “[t]here is a presumption that a trial judge, acting as a public official, faithfully and lawfully performs the duties devolving upon him.” Id. at 467-468 (citation and punctuation omitted). Because the State’s affidavit did not include facts sufficient to overcome this presumption, the trial court did not err when it denied the motion to recuse as legally inadequate. Id.

2. The State also argues that the juvenile court erred when it dismissed the petition without prejudice. We agree.

As we have noted above, OCGA § 15-11-2 (19) (B) defines “delinquent acts” as including “[t]he act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudicated to have committed a delinquent act[.]” As in this case, then, the statute provides a mechanism by which a child who violates probation ordered in a previous adjudication of delinquency may become the subject of a new delinquency petition. See, e.g., OCGA § 15-11-522 (l)-(3) (requiring a delinquency petition to state “plainly and with particularity [t]he facts which bring a child within the jurisdiction of the court,” including “a statement that [the proceeding is brought] in the best interests of such child,” the “name, age, and residence address of such child,” and the “name and residence address of such child’s parent, guardian, or legal custodian”). As part of the same statutory scheme, and as the juvenile court noted, OCGA § 15-11-608 (b) provides that a delinquent child’s violation of probation “may be reported to the prosecuting attorney who may file a motion in the court for revocation of probation[,]” and that such a motion “shall contain specific factual allegations constituting each violation of a condition of probation.” (Emphasis supplied.) We are required to read each of these statutes “according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation!.]” State v. Johnson, 269 Ga. 370, 371 (1) (499 SE2d 56) (1998) (citations omitted).

This juvenile court engaged in a lengthy analysis of the history of these two sections of the new Juvenile Code, including a comparison of the new statutes with former OCGA § 15-11-40, before concluding that the motion provided to the State in OCGA § 15-11-608 “is the exclusive remedy for addressing violations of probation” such that the State’s petition under OCGA § 15-11-2 (19) (B) was “not valid.” The juvenile court noted, for example, that a prosecution under OCGA § 15-11-2 (19) (B) might have greater implications for a juvenile’s future than a probation revocation by motion under OCGA § 15-11-608. The Supreme Court of Georgia has held, however, that “[jjudicial construction is appropriate only when a statute is ambiguous, and when the statutory language is plain and unequivocal, judicial construction is not only unnecessary but forbidden.” Glover v. State, 272 Ga. 639, 640 (533 SE2d 374) (2000) (citation omitted). OCGA § 15-11-2 (19) (B) plainly includes a delinquent child’s violation of probation in the category of actions that may give rise to a new delinquency petition, and OCGA § 15-11-608 (b) plainly provides that a prosecutor who becomes aware of such a child’s violation of probation “may file a motion ... for revocation of probation.” There being no ambiguity in either of these provisions, the first of which authorizes the State to file a petition concerning a violation of probation and the second of which authorizes the State to move for revocation of probation as a consequence of such a violation, no court is authorized to ignore either a petition brought under the first or a motion brought under the second. In the absence of any other basis for dismissal asserted below, the juvenile court erred when it dismissed the State’s petition without prejudice.

Decided March 24, 2015.

Meg E. Heap, District Attorney, Austin D. Roberson, Assistant District Attorney, for appellant.

Mark J. Nathan, for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Boggs, J., concur.

       OCGA § 15-11-2 (19) of the new Juvenile Code, effective January 1, 2014, defines a “[djelinquent act” as including “(B) [t]he act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudicated to have committed a delinquent act[.]”

       OCGA § 15-11-608 of the new Code provides in relevant part:
      (a) An order granting probation to a child adjudicated for a delinquent act may be revoked on the ground that the conditions of probation have been violated.
      (b) Any violation of a condition of probation may be reported to the prosecuting attorney who may file a motion in the court for revocation of probation. A motion for revocation of probation shall contain specific factual allegations constituting each violation of a condition of probation.
      (f) If the court finds, beyond a reasonable doubt, that a child violated the terms and conditions of probation, the court may: (1) [ejxtend probation; (2) [ijmpose additional conditions of probation; or (3) [m] ake any disposition that could have been made at the time probation was imposed.

       Like Uniform Superior Court Rule 25.2, Uniform Juvenile Court Rule 27.2 provides that an affidavit supporting a motion to recuse
      shall clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extrajudicial conduct or statements, which demonstrate either bias in favor of any adverse party, or prejudice toward the moving party in particular, or a systematic pattern of prejudicial conduct toward persons similarly situated to the moving party, which would influence the judge and impede or prevent impartiality in that action. Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.

       Former OCGA § 15-11-40 (2013) provided in relevant part:
      (b) ... An order granting probation to a child found to be delinquent or unruly may be revoked on the ground that the conditions of probation have not been observed.

      (c) Any party to the proceeding, the probation officer, or any other person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in this Code section. The petition shall set forth in clear and concise language the grounds upon which the relief is requested.
      (Emphasis supplied.)

       See, e.g., OCGA §§ 15-11-540 (providing for dismissal of a delinquency petition “upon the motion of the prosecuting attorney setting forth that there is not sufficient evidence to warrant further proceedings”); 15-11-566 (providing for dismissal of a delinquency petition upon transfer “for trial in superior court”).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A1775.
    LUSTER v. BANK OF AMERICA, N.A. et al.
    (769 SE2d 394)
   Miller, Judge.

Lois Luster filed a wrongful foreclosure suit against Bank of America, N.A., successor by merger with Countrywide Home Loans Servicing, Investors One Corporation, Kondaur Capital Corporation, MERSCORP, Inc., and Campbell & Brannon, LLC. After Luster failed to appear in court, the trial court dismissed her suit for want of prosecution. Thereafter, the trial court denied Luster’s motion for new trial or, alternatively, to set aside the dismissal, and Luster filed this appeal. Since we lack jurisdiction to consider Luster’s appeal, it must be dismissed.

“It is our duty to inquire on our own motion into the issue of this Court’s jurisdiction.” (Citations omitted.) Southwest Health & Wellness, LLC v. Work, 282 Ga. App. 619, 622 (1) (a) (639 SE2d 570) (2006).

The trial court dismissed Luster’s suit for want of prosecution on February 5, 2014. A judgment dismissing a plaintiff’s entire complaint is a final order and is directly appealable under OCGA § 5-6-34 (a) (1). See Andemeskel v. Waffle House, Inc., 227 Ga. App. 887 (1) (490 SE2d 550) (1997). Pursuant to OCGA § 5-6-38 (a), a notice of appeal must be filed within 30 days of the appealable decision. Luster did not, however, file a notice of appeal within 30 days after the dismissal of her suit. Instead, Luster filed a motion, captioned “a motion for new trial or, alternatively, a motion to set aside the dismissal,” which the trial court denied on April 9,2014. Luster then filed a notice of appeal on April 15, 2014, seeking review of the trial court’s April 9 order.

“[T]he appealability of an order is determined, not by its form or the name given to it ... , but rather by its substance and effect.” (Footnote omitted.) First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 885 (655 SE2d 605) (2008).

Objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial. A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree. If a judgment or decree is erroneous or illegal, direct exception should be taken to it at the proper time.

(Citation and punctuation omitted.) Leader Nat. Ins. Co. v. Martin, 185 Ga. App. 27, 29 (1) (363 SE2d 281) (1987).

Although Luster designated her motion as a motion for new trial, she objected to the judgment of dismissal. Thus, her motion cannot properly be construed as a motion for new trial. See Martin, supra, 185 Ga. App. at 29 (1); see also Rothstein v. Brooks, 133 Ga. App. 52, 53 (4) (209 SE2d 674) (1974) (where case was purportedly dismissed for want of prosecution, there had been no trial, and thus the rules relating to motions for new trial did not apply). “Where a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal.” Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447) (1986).

Decided March 4, 2015

Reconsideration denied March 25, 2015

Lois Luster, pro se.

Lotstein Legal, Marcus G. Keegan, A. Michelle Canter, McGuire Woods, Jarrod S. Mendel, Andrew G. Phillips, for appellees.

If we construe Luster’s motion as a motion to set aside under OCGA § 9-11-60 (d), such an order may only be appealed by complying with the discretionary appeal procedures, which Luster did not do. See OCGA § 5-6-35 (a) (8); Arrowhead Alternator, Inc. v. CIT Communications Finance Corp., 268 Ga. App. 464, 466 (602 SE2d 231) (2004). Furthermore, to the extent Luster’s motion could be considered a motion for reconsideration, it did not extend the time to appeal from the underlying order, and the order resolving a motion for reconsideration is not subject to direct appeal. See Bell v. Cohran, 244 Ga. App. 510 (536 SE2d 187) (2000). Accordingly, Luster’s notice of appeal, filed more than 30 days after the trial court’s dismissal, was untimely and we lack jurisdiction to consider her appeal.

Appeal dismissed.

Doyle, P. J., and Dillard, J., concur.

       Luster has since dismissed her claims against Bank of America, N.A.

       In Vaughan v. Car Tapes, Inc., 135 Ga. App. 178, 179-180 (217 SE2d 436) (1975), the plaintiff filed a motion to set aside after his suit was dismissed for want of prosecution, arguing that he had received no notice of the date set for trial. This Court affirmed, holding that the trial court had the authority to reinstate the case. Id. at 180 (4). In dicta, this Court noted that the trial court properly construed the plaintiff’s motion to set aside the judgment as an extraordinary motion for new trial. Id. at 180 (3). We are not bound by that dicta, and we conclude that Luster’s motion could not properly be construed as a new trial motion. See Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008) (courts are not bound to follow dicta from prior cases where the point at issue was not fully debated).


author: MCFADDEN, Judge.

text:
    A14A1592.
    MINNIFIELD v. WELLS FARGO BANK, N.A. et al.
    (771 SE2d 188)
   MCFADDEN, Judge.

Kimelyn Minnifield, an attorney proceeding pro se, appeals the trial court’s order dismissing her wrongful foreclosure action against Wells Fargo Bank, N.A., and Richard B. Maner, P.C. She contends that the trial court erred by failing to notify her that the court was converting Wells Fargo’s motion to dismiss to a motion for summary-judgment and by concluding that collateral estoppel barred her claims. Because Minnifield had sufficient notice of the documents outside the pleadings that the trial court considered and because her claims are barred by collateral estoppel, we affirm.

1. Facts.

In 2009, three-and-one-half years before she filed the subject action, Minnifield filed suit in the state court of DeKalb County against Johnson & Freedman, LLC and Johnson & Freedman II, LLC (collectively, “Johnson & Freedman”), the law firm that initiated foreclosure proceedings against her on behalf of its client, Wells Fargo. Her lawsuit, in which she asserted claims under the Fair Debt Collection Practices Act, was subsequently removed to federal court, where it made two appearances before the United States Court of Appeals for the Eleventh Circuit.

The relevant facts, taken from the latest decision from the Eleventh Circuit, are as follows:

In March 2005, Minnifield gave Argent Mortgage Company, LLC, (Argent) a security deed on property in McDonough, Georgia to secure a loan. The security deed provided that Argent and its successors and assigns could sell Minnifield’s property if she defaulted on her loan. In the months that followed, the deed apparently changed hands. Then Minnifield defaulted on the loan. In 2009, Johnson & Freedman, a law firm, initiated nonjudicial foreclosure proceedings on behalf of Wells Fargo Bank, N.A. (Wells Fargo), the company that claimed it held Minnifield’s deed.
Before the proceedings concluded, Minnifield sued Johnson & Freedman under the Fair Debt Collection Practices Act (FDCPA) alleging that the firm unlawfully initiated foreclosure proceedings because Wells Fargo did not hold the security deed and, therefore, lacked the present right to possession of her property. After discovery, Johnson & Freedman moved for summary judgment, which the district court granted.

Minnifield v. Johnson & Freedman II, LLC, 522 Fed. Appx. 782, 783 (11th Cir. 2013).

In the district court, Johnson & Freedman presented evidence that Wells Fargo had a right to possession of the property via an enforceable security interest as of May 1, 2005, and Minnifield submitted no evidence that Wells Fargo was not the owner of the security deed at the time Johnson & Freedman sent her the foreclosure notice. Minnifield, 522 Fed. Appx. at 784. Because Minnifield failed to rebut Johnson & Freedman’s evidence that Wells Fargo was the holder of the security deed and therefore authorized to foreclose on her property, the Eleventh Circuit held that summary judgment was authorized on Minnifield’s Fair Debt Collection Practices Act claim. Id.

While her prior action was on appeal, Minnifield filed the present action against Wells Fargo itself and Richard B. Maner, PC., another law firm that initiated foreclosure proceedings against Minnifield on behalf of Wells Fargo. Minnifield asserted claims against Wells Fargo for wrongful attempted foreclosure, violation of OCGA § 23-2-114 (Powers of Sale), violation of the Fair Debt Collection Practices Act, violations of the Georgia Racketeer Influenced and Corrupt Organizations (RICO)Act, fraud, violation of OCGA § 44-14-162.2 (Notice of Foreclosure Sale) and OCGA § 44-14-162 (Sale Under Power), and violation of the due process clause of the Georgia Constitution. Minnifield sued Maner for violation of the Fair Debt Collection Practices Act (15 USC § 1692f (6)) and the Georgia RICO Act (for aiding and abetting Wells Fargo). All of these claims stem from Minnifield’s contention that Wells Fargo does not have an enforceable security interest in her property and therefore is not authorized to foreclose on it.

2. The motions to dismiss.

Minnifield contends that the trial court erred by considering exhibits attached to Wells Fargo’s motion to dismiss without notifying her that the court intended to convert the motions to dismiss into motions for summary judgment. Because Minnifield had sufficient notice — indeed had herself relied on the documents the trial court appears to have considered — that contention is without merit. The exhibits to the motion included the March 2005 security deed from Minnifield to Argent Mortgage Company, the assignment from Argent to Wells Fargo, Minnifield’s complaint in the federal litigation, and the district court’s order granting summary judgment to Johnson & Freedman in the federal litigation.

When considering a motion to dismiss for failure to state a claim, a trial court may consider exhibits attached to and incorporated into the complaint and answer. Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 751, n. 4 (751 SE2d 545) (2013). But if matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment, and all parties shall be given a reasonable opportunity to present all material made pertinent to such a motion by OCGA § 9-11-56. OCGA § 9-11-12 (b).

The record does not specify which documents the trial court considered. Minnifield did not designate the transcript of the motion hearing as part of the record on appeal and the trial court’s order does not specify what the court reviewed prior to ruling on the motions to dismiss. But we infer that the trial court must have considered orders from the federal court litigation in resolving the collateral judgment issue.

The trial court did not err in considering those federal court orders. The record reflects that Minnifield had sufficient notice that those orders would be considered in this action. In her complaint, she described the federal litigation, quoted extensively from one of the district court’s orders, and noted that the federal litigation was ongoing at the time. And in Minnifield’s response to Wells Fargo’s motion to dismiss, she again relied on a portion of an order from the federal litigation. The trial court is not required to give the party opposing a motion to dismiss for failure to state a claim “an opportunity to obtain evidence or materials if the opposing party has already had notice that such would be required.” Cox Enterprises v. Nix, 273 Ga. 152, 154 (538 SE2d 449) (2000) (citation and punctuation omitted), rev’d in part on other grounds, Cox Enterprises v. Nix, 274 Ga. 801 (560 SE2d 650) (2002). Thus, Minnifield has not shown that the trial court erred by failing to give her notice that the court would consider orders from the federal litigation prior to ruling on the motions. See id.

With respect to the other exhibits to Wells Fargo’s motion to dismiss, there is no indication that the trial court considered those exhibits before ruling on the motions. Similarly, we may not consider those exhibits in reviewing the trial court’s grant of those motions. See Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. at 751, n. 4.

3. Collateral estoppel.

Minnifield contends that the trial court erred by concluding that her complaint against Wells Fargo and Maner was barred by collateral estoppel. She argues that the ruling was incorrect because the claims in this action are not identical to the claims brought in the prior action and because the prior action did not involve the same parties or their privies.

The doctrine of collateral estoppel “precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies.” Copelan v. Copelan, 294 Ga. 840, 841 (755 SE2d 739) (2014) (citations and punctuation omitted).

“[Cjollateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.” Coffee Iron Works v. QORE, 322 Ga. App. 137, 139 (1) (744 SE2d 114) (2013) (punctuation and emphasis omitted). For collateral estoppel to apply, Minnifield’s claims in this action do not have to be identical to the claims she asserted in the prior action. The common and determinative issue in the federal litigation and this litigation is whether Wells Fargo had an enforceable security interest in Minnifield’s property such that it had authority to foreclose. The district court held that it did, and the Eleventh Circuit affirmed. Under these circumstances, there is sufficient identity of issues for purposes of collateral estoppel. See Coffee Iron Works v. QORE, 322 Ga. App. at 140 (1) (a); see also Body of Christ Overcoming Church of God v. Brinson, 287 Ga. 485, 487 (696 SE2d 667) (2010) (where issue in current litigation involves an issue resolved on merits in prior litigation, one aspect of collateral estoppel is established). We therefore conclude that the first element of collateral estoppel has been established.

In Georgia, mutual identity of parties is required for collateral estoppel, which means that there must be an identity of parties or their privies in both actions. Body of Christ Overcoming Church of God v. Brinson, 287 Ga. at 486. See also Wickliffe v. Wickliffe Co., 227 Ga. App. 432, 434-435 (1) (489 SE2d 153) (1997) (overruling a line of cases in which we had adopted “[t]he modern trend in applying the doctrines of res judicata and collateral estoppel ... to confine the privity requirement to the party against whom the plea is asserted” out of deference to our Supreme Court, which has not directly addressed the issue but which has “consistently listed the mutuality of parties requirement as a necessary element in invoking collateral estoppel” and encouraging our Supreme Court “to embrace the modern trend when it does directly address this issue”).

As to Minnifield there is, of course, identity of the parties in the two actions. Wells Fargo and Maner were not parties to the prior action and must therefore be privies of Johnson & Freedman in order to assert collateral estoppel as a defense in this action.

Generally speaking, privies are those legally represented at trial. Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right; and where this identity is found to exist, all are alike concluded and bound by the judgment.

Pinkard v. Morris, 215 Ga. App. 297, 298 (1) (450 SE2d 330) (1994) (citations and punctuation omitted). There is no definition of “privity” that can automatically be applied to all cases involving the doctrine of collateral estoppel because privity depends upon the circumstances. Coffee Iron Works v. QORE, 322 Ga. App. at 141 (3). “Privity may be established if the party to the first suit represented the interests of the party to the second suit.” Id., citing Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 422 (1) (627 SE2d 549) (2006) (punctuation omitted).

Decided March 25, 2015

Kimelyn A. Minnifield, pro se.

Richard B. Maner, Baker, Donelson, Bear man, Caldwell & Berkowitz, Joshua N. Tropper, Amy L. Hanna, for appellee.

Wells Fargo and the law firm it hired to conduct foreclosure proceedings have an identity of interest in defending against Minnifield’s actions for wrongful foreclosure and related claims and specifically, Minnifield’s contention that Wells Fargo lacked an enforceable security interest in Minnifield’s property. And Maner has the same interest in this litigation as Johnson & Freedman had in the prior litigation — proving that Wells Fargo did have an enforceable security interest in Minnifield’s property. In the federal litigation, Johnson & Freedman successfully represented that same legal right by obtaining summary judgment in the law firm’s favor on that exact issue and, as privies, Wells Fargo and Maner are entitled to rely on it to preclude re-litigation of the same issue here. See Bostick v. CMM Properties, 327 Ga. App. 137, 140 (2) (755 SE2d 895) (2014). Accordingly, we affirm the dismissal of Minnifield’s complaint.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: McFadden, Judge.

text:
    A14A1633.
    SAVE-A-LOT FOOD STORES et al. v. AMOS.
    (771 SE2d 192)
   McFadden, Judge.

This appeal is by an employer from a superior court order reversing an administrative denial of workers’ compensation benefits to an employee. Although the superior court ruled that the State Board of Workers’ Compensation held the employee to an unfairly heightened standard of proof, a review of the decisions of the Appellate Division and the administrative law judge (“ALJ”) shows otherwise. Accordingly, we reverse.

1. Facts and procedural posture.

On appeal from an award of the Appellate Division of the State Board of Workers’ Compensation, this [c]ourt examines the record to see if there is competent evidence to support the award and construes the evidence in a light most favorable to the prevailing party. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this [c]ourt has any authority to substitute itself as a fact finding body in lieu of the [b]oard. However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review.

Bonner-Hill v. Southland Waste Systems, 330 Ga. App. 151, 153 (767 SE2d 803) (2014) (citations and punctuation omitted).

The record shows that James Amos sought workers’ compensation benefits, claiming that he was disabled as the result of a work-related stroke. His employer, Save-A-Lot Food Stores, and its workers’ compensation carrier, Old Republic Insurance Company (collectively, “Save-A-Lot”), controverted the claim. A hearing on Amos’ claim was held before an ALJ.

At the hearing, Amos testified that on August 5, 2011, he was at work when he became dizzy and flushed while unloading pallets of meat weighing between 15 and 60 pounds. He took a short break and then continued working, but found himself miscounting items, losing his balance and becoming confused. He had a severe headache, water was dripping from his right eye, and the left side of his body felt weak. Amos was driven to the hospital, where he was admitted for three days.

Amos’ family doctor, Melanie Shorter, opined that Amos had suffered a stroke and that job-related stress was a contributing factor that led to it. She also identified Amos’ tobacco use, uncontrolled diabetes, hypoadenia, inactivity, and family history as other possible factors. Dr. Michael Frankel, a neurologist who specializes in strokes and is the director of a hospital stroke and neuroscience center, testified that Amos’ magnetic resonance imaging (MRI) testing and other medical records showed no evidence of a stroke. Dr. Frankel further testified that it is not clear whether stress is a real factor for stroke and that Amos had most of the other known significant risk factors for stroke, including diabetes, family history and smoking. Dr. Abdul Qadir, another neurologist who had treated Amos, found no objective evidence that he had suffered a stroke and that the etiology of his symptoms was unclear. Dr. Qadir further noted that Amos’ MRI did not demonstrate any stroke, and he questioned whether the incident had been initiated by a “vascular or hypoglycemic event[.]”

Following the hearing, the ALJ entered an order denying Amos’ request for benefits. The ALJ found that Amos had not shown that he suffered a stroke, and that even if he had, the stroke was not caused by work stress. Accordingly, the ALJ concluded that Amos was not entitled to workers’ compensation benefits because he had “failed to prove by a preponderance of competent and credible evidence that he suffered a stroke arising out of, and in the course of, his employment with [Save-A-Lot] on or about 8/5/2011.”

Amos appealed to the state board’s Appellate Division, complaining that the ALJ had unfairly held him to a heightened standard of proof. Amos pointed to the following portion of the ALJ’s order:

Employee has the burden of proof and must show that he sustained an injury which arose out of and in the course of his employment and that disability resulted from the injury. The standard of proof on all factual questions is by a preponderance of the credible evidence. Employee is required to meet a higher standard of proof to establish that his alleged stroke is compensable. That proof must also be supported by medical evidence.

(Citations omitted; emphasis supplied.)

The Appellate Division affirmed the decision of the ALJ, finding that the preponderance of competent and credible evidence showed that Amos had not suffered a compensable injury. With respect to the “higher standard of proof” language emphasized above, the Appellate Division ruled as follows:

To the extent that the administrative law judge referenced in paragraph 13 of the award that the Employee is required to meet a higher standard of proof to establish that his alleged stroke is compensable in this case, we find he so erred. As such, based upon the foregoing, the third sentence of paragraph 13 of the findings of fact and conclusions of law is stricken.

(Citations omitted.)

Amos then appealed to the superior court, which reversed the Appellate Division. The court ruled that the ALJ’s “higher standard of proof ” language was erroneous and that the Appellate Division had recognized the error but had failed to correct it. The court noted that the Appellate Division referred to “the wrong page and paragraph of the original Award” and improperly adopted the ALJ’s factual findings. Accordingly, the superior court reversed the Appellate Division’s award and remanded the case to the state board “with instructions to conduct a new trial and issue new and complete findings of fact and conclusions of law.”

Save-A-Lot filed an application for discretionary review of the superior court’s order. This court granted the application, and Save-A-Lot then filed a timely notice of appeal.

2. Burden of proof.

OCGA § 34-9-1 (4) provides that a compensable injury under the Workers’ Compensation Act does not include

... heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, stroke, or thrombosis unless it is shown by a preponderance of competent and credible evidence, which shall include medical evidence, that any of such conditions were attributable to the performance of the usual work of employment. . . .

(Emphasis supplied.) Thus, an employee seeking workers’ compensation benefits based on a stroke “must produce some medical evidence to support a claim for benefits.” AFLAC v. Hardy, 250 Ga. App. 570, 571 (552 SE2d 505) (2001) (citation omitted) (involving heart attack).

Contrary to the finding of the superior court, the ALJ and the Appellate Division did not impose on Amos a burden of proof higher than the applicable preponderance of competent and credible evidence standard set forth in OCGA § 34-9-1 (4). A review of the ALJ’s decision shows that he cited the appropriate preponderance of the evidence standard three separate times. Moreover, the ALJ expressly concluded that Amos had “failed to prove by a preponderance of competent and credible evidence that he suffered a stroke arising out of his employment[.]” Thus, it is apparent that the ALJ applied the correct standard of proof.

Although the ALJ did state, in the portion of its decision cited above, that Amos was “required to meet a higher standard of proof to establish that his alleged stroke is compensable,” the ALJ never identified any such higher standard of proof beyond preponderance of the evidence. Rather, it is clear from the context of this statement that the ALJ was merely referring to the statutory requirement that Amos support his stroke claim with medical evidence. The ALJ supported the “higher standard” sentence with a citation to AFLAC v. Hardy, supra, a case discussing the medical evidence requirement. Moreover, the ALJ expressly referenced that medical evidence requirement in the next sentence, supported by a citation to OCGA § 34-9-1 (4).

Like the ALJ, the Appellate Division also identified and applied the correct standard of proof. In its decision, the Appellate Division cited the correct standard twice. It first emphasized that the ALJ had made his findings based on “a preponderance of the competent and credible evidence.” (Emphasis in original.) The Appellate Division then went on to conclude that, based on its review of the record, the AL J’s findings were supported “by a preponderance of competent and credible evidence.” Nowhere in the Appellate Division’s decision is there any indication that it applied an improper heightened standard of proof on Amos. On the contrary, the Appellate Division took the extra step of actually finding that to the extent the AL J’s reference to a “higher standard of proof” could be considered error, it was struck.

Decided March 25, 2015.

Drew Eckl & Farnham, John G. Blackmon, Jr., Christopher K. Gifford, for appellants.

Buzzell, Graham & Welsh, Neal B. Graham, for appellee.

We note that even this court, like the ALJ, has referred to the statutory requirement of additional medical evidence in certain workers’ compensation claims, such as heart attack and stroke, as being a “higher standard of proof.” In the case of Parham v. Swift Transp. Co., 292 Ga. App. 53, 56, n. 3 (663 SE2d 769) (2008), which did not involve an injury requiring medical evidence, this court distinguished AFLAC v. Hardy, supra, by noting that the injury at issue in that case “was a heart attack, which requires that claimants meet a higher standard of proof to establish compensability.” As with the ALJ in the instant case, this was not a reference to a standard of proof higher than preponderance of the evidence, but was merely a way of expressing the additional evidentiary requirement of medical evidence in such cases. See generally East v. Stephens, 292 Ga. 604, 606 (740 SE2d 156) (2013) (when a judgment is susceptible of two meanings, one of which would render it illegal and the other proper, the construction which will render legal, if reasonably possible, shall be given).

Because the Appellate Division’s decision did not apply the wrong standard of proof and because there was evidence in the record to support the Appellate Division’s ruling that Amos did not suffer a compensable, work-related injury, the superior court was required to accept the Appellate Division’s findings. See Pitts v. City of Rome, 256 Ga. App. 278, 280-281 (1) (568 SE2d 167) (2002) (affirming denial of claim based on stroke under “any evidence” standard where there were conflicting medical opinions); Reynolds Constr. Co. v. Reynolds, 218 Ga. App. 23, 25-26 (459 SE2d 612) (1995). The superior court’s ruling to the contrary was therefore erroneous and is hereby reversed.

Judgment reversed.

Andrews, P. J., and Ray, J., concur.


author: McFADDEN, Judge.

text:
    A14A1772.
    CORDELL & CORDELL, P.C. v. GAO.
    (771 SE2d 196)
   McFADDEN, Judge.

Shaojun Gao sued his former law firm, Cordell & Cordell, RC. (hereinafter, the firm) for breach of contract, breach of fiduciary duty, unjust enrichment, and money had and received in connection with alleged overbilling. The case went to a jury, which found in favor of Gao and awarded him $23,213.70, the same amount that a panel of arbitrators previously had awarded Gao in nonbinding arbitration under the State Bar of Georgia’s fee arbitration process.

The firm appeals from the judgment entered on that jury award. It argues that the trial court erred in admitting into evidence the arbitration award and portions of a recording of a telephone call between Gao and a former lawyer of the firm, and that the trial court should have granted its motion for directed verdict on all of Gao’s claims. The trial court, however, did not err in admitting the challenged evidence, the evidence supported the denial of the directed verdict motion on the breach of contract and breach of fiduciary duty claims, and the firm did not argue to the trial court the specific ground upon which it now claims entitlement to a directed verdict on the remaining claims. For these reasons, we affirm.

1. Facts and procedural history.

Gao hired the firm in September 2008 to represent him in an ongoing divorce action that involved complicated custody issues. The parties entered into a written contract setting forth the terms of the representation. Among other things, the contract provided that Gao would pay the firm specific hourly rates for its work on his case, that Gao acknowledged the total fees might be higher than any estimates given to him by the firm, and that Gao would like the firm to “assign attorneys and other staff to handle [the] matter in the most economical manner possible.”

The firm worked on Gao’s case for five-and-a-half months and charged Gao nearly $50,000 for that work. The work included a mediation and three court appearances, at which some of the custody issues in the case were temporarily resolved to Gao’s satisfaction. During this time, Gao told the firm he was concerned about the mounting fees. Nevertheless, he paid all of the bills he received from the firm. In February 2009, Gao terminated the firm’s representation of him because he could not afford further fees.

Soon after Gao ended the representation, the lawyer that had been assigned to his case left the firm. Shortly thereafter, that lawyer and Gao had a telephone conversation — a portion of which Gao recorded — that led Gao to believe the firm had overcharged him. Gao unsuccessfully sought a refund of some of the fees he had paid, then brought an arbitration proceeding against the firm under the State Bar of Georgia’s fee arbitration program. The firm declined to participate in that proceeding. Gao, however, presented evidence to a panel of arbitrators at a hearing, and on January 29, 2010, the arbitrators issued an award in Gao’s favor. The award stated:

We find there was a written contract which provided for an hourly rate and a billing history. The evidence and testimony suggested that client billing emphasized the firm [’] s financial needs rather than client[’]s interest in this case. The evidence shows a total bill of $49,289.63 which was paid to [the firm] by [Gao] and we find from the evidence and testimony of [Gao] and subpoenaed witness that [Gao] receive a refund from [the firm] of $23,213.70.

The firm declined to be bound by the award and, accordingly, did not participate in the proceeding pursuant to the State Bar rules then in effect. See former State Bar Rule 6-402.

Gao then filed the instant action in superior court, and the action proceeded to a jury trial, at which the trial court admitted the arbitration award into evidence over the firm’s objection. The trial court also permitted Gao to use portions of the recording of his telephone conversation with his former lawyer to impeach the lawyer twice during his testimony. At the close of Gao’s case, the firm moved for a directed verdict on all counts, which the trial court denied. The jury ultimately returned a general verdict in Gao’s favor for $23,213.70.

2. Admissibility of State Bar arbitration award.

The firm challenges the trial court’s admission of the arbitration award into evidence. Over the firm’s objection, the trial court admitted the award pursuant to the State Bar rules governing arbitration of fee disputes, which establish a program “designed to provide a convenient mechanism to resolve disputes between lawyers and clients over fees[.]” Farley v. Bothwell, 306 Ga. App. 801 (703 SE2d 397) (2010) (citing former State Bar Rules, Part VI, Arbitration of Fee Disputes, Preamble). Those rules “are grounded in [the Georgia Supreme] Court’s inherent and exclusive authority to govern the practice oflawin Georgia.” Nodvin v. State Bar of Ga., 273 Ga. 559 (1) (544 SE2d 142) (2001) (citations omitted). Our Supreme Court has stressed that its “authority to regulate nearly every facet of the [legal] profession” permits “both regulation of the fee arbitration process and restriction on subsequent judicial review.” Id. (citations and punctuation omitted).

Such restriction on subsequent judicial review includes the treatment of a fee arbitration award in a later civil proceeding concerning the fee dispute. See generally Nodvin, 273 Ga. at 561 (3) (describing State Bar rules’ burden-shifting presumption, discussed below, as a limitation on attorney’s right of judicial review of fee arbitration award). While a lawyer against whom an arbitration is brought may decline to be bound by the decision, see former State Bar Rule 6-402, there are consequences to a refusal to be bound. The lawyer waives his right to participate in the arbitration hearing, although he may attend it. Former State Bar Rule 6-402. Moreover,

the rules contemplate that a nonbinding award may be evidence in subsequent civil litigation seeking a personal judgment against the lawyer for the amount of the award[.] . . . In such subsequent litigation, the attorney fee dispute program gives the client the benefit of free legal representation and a rule establishing the award as prima facie evidence of its fairness.

Farley, 306 Ga. App. at 802 (citation and punctuation omitted); see former State Bar Rule 6-502. To that end, former State Bar Rule 6-502 (a) provides that “the award rendered will be considered as prima facie evidence of the fairness of the award and the burden of proof shall shift to the lawyer to prove otherwise.”

Nevertheless, the firm challenges the trial court’s admission of the award into evidence for two reasons: it argues that the arbitrators lacked authority to enter the award and it argues that the State Bar rules permitting the use of the award as prima facie evidence conflict with Georgia’s Evidence Code. As detailed below, we find no ground for reversal.

(a) Arbitrators’ authority.

The firm argues that the arbitrators had no authority to enter the award because it was contrary to the terms of the firm’s contract with Gao. Under former State Bar Rule 6-412, “[n]o arbitrator shall have authority to enter an award contrary to terms of an executed written contract between the parties except on the grounds of fraud, accident, mistake, or as being contrary to the laws of the state governing contracts.”

The firm argues that the award in this case was contrary to the parties’ contract because it refunded Gao a portion of fees for work that the firm performed and billed in accordance with the contract’s terms. But the contract also included a term providing for the firm to “assign attorneys and other staff to handle [the] matter in the most economical manner possible.” Further, the contract created an attorney-client relationship that imposed upon the firm a fiduciary duty of utmost good faith and loyalty to Gao. Tante v. Herring, 264 Ga. 694, 695-696 (2) (453 SE2d 686) (1994); see David C. Joel, Attorney at Law, P.C. v. Chastain, 254 Ga. App. 592, 595-596 (1) (562 SE2d 746) (2002); Tunsil v. Jackson, 248 Ga. App. 496, 499 (2) (546 SE2d 875) (2001). This duty required the firm “not to pursue any interest or take any act adverse to [Gao’s] interests or incompatible with applying its best skill, zeal, and diligence in representing [Gao].” David C. Joel, 254 Ga. App. at 596 (1) (citations omitted). The arbitrators found, however, that the firm billed Gao’s case in a manner that put its own interests ahead of Gao’s interests. That finding and the arbitrators’ refund of some of Gao’s fees pursuant thereto were not inconsistent with the terms of the contract. Accordingly, former State Bar Rule 6-412 did not prohibit the award, and the trial court was under no obligation to exclude the award from evidence on that ground.

(b) Alleged conflict with Georgia’s Evidence Code.

The firm also argues that the trial court should not have admitted the award into evidence because the State Bar rule permitting its admission, former State Bar Rule 6-502 (a), conflicts with various provisions of Georgia’s Evidence Code. In essence, the firm challenges the procedure established by the State Bar to facilitate the resolution of a fee dispute when the lawyer declines to be bound by arbitration, arguing that the State Bar rules cannot “trump the statutory laws regarding evidence as passed by the legislature [.]”

On its face, the firm’s argument appears to conflict with the principles discussed by our Supreme Court in Nodvin v. State Bar of Ga., supra, 273 Ga. 559. But we need not decide that issue because, as Gao points out, the firm did not make this particular argument to the trial court. “A reason urged that evidence should not have been admitted will not be considered on appeal unless the reason was urged below.” Argonaut Ins. Co. v. Head, 149 Ga. App. 528, 531 (3) (254 SE2d 747) (1979) (citation omitted).

3. Admissibility of recorded conversation between Gao and his former attorney.

The firm argues that the trial court erred in denying its motion in limine to exclude the recorded conversation between Gao and his former attorney. In arguing that motion, however, the firm agreed that the recording could be allowed to impeach the lawyer, and the trial court limited the recording to that use. Consequently, the firm waived this claim of error. See Perry v. Gilotra-Mallik, 314 Ga. App. 764, 765 (1) (726 SE2d 81) (2012) (party cannot acquiesce in trial court’s ruling below and then complain about that ruling on appeal).

4. Directed verdict.

The firm argues that the trial court erred in denying its motion for directed verdict on all of Gao’s claims. “A motion for a directed verdict shall state the specific grounds therefor.” OCGA § 9-11-50 (a). A directed verdict shall be granted “[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[.]” Id. On appeal from the denial of a motion for directed verdict, “we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” Parris Properties v. Nichols, 305 Ga. App. 734, 735 (1) (700 SE2d 848) (2010) (citation omitted). Considering these principles, we find no ground for reversal. As detailed below, there is evidence to support the jury’s verdict on the claims for breach of contract and breach of fiduciary duty, and the firm did not state the specific grounds for directed verdict on the remaining claims that it now argues on appeal.

(a) Claims for breach of contract and breach of fiduciary duty.

The elements of a breach of contract claim are breach and resultant damages to a party with the right to complain about the breach. Inland Atlantic Old Nat. Phase I v. 6425 Old Nat., 329 Ga. App. 671, 677 (3) (766 SE2d 86) (2014). “A breach occurs if a contracting party repudiates or renounces liability under the contract; fails to perform the engagement as specified in the contract; or does some act that renders performance impossible.” Id. (citation and emphasis omitted). As discussed above, the contract in this case included a term providing for the firm to “assign attorneys and other staff to handle [the] matter in the most economical manner possible.”

The elements of a claim for breach of fiduciary duty are the existence of a fiduciary duty, the breach of that duty, and damage proximately caused by that breach. Inland Atlantic, 329 Ga. App. at 674 (1). An attorney-client relationship imposes upon the attorney a fiduciary duty of utmost good faith and loyalty, which includes the responsibility not to pursue interests or take acts adverse to the client’s interest. See Tante, 264 Ga. at 695-696 (2); David C. Joel, 254 Ga. App. at 595-596 (1); Tunsil, 248 Ga. App. 499 (2).

There was some evidence presented at trial to support a finding that the firm performed work on Gao’s case and billed for that work in a manner that placed the firm’s financial interests above the interests of Gao, in violation of both the terms of the parties’ contract and the firm’s fiduciary duties as Gao’s attorney. That evidence included expert opinion testimony that the firm overcharged Gao; in reaching this opinion, the expert witness questioned both the need for certain work that the firm performed on the case and the amount of time spent on other work. That evidence also included the testimony of Gao’s former lawyer that the firm had instructed him to “think more creatively” about his cases to meet billable hour requirements, a practice that bothered the lawyer and that he thought did a disservice to the client. And that evidence included the arbitration award in which the arbitrators found that the firm had billed Gao in a manner that served the firm’s interests over those of Gao. In light of that evidence, the trial court did not err in denying the motion for directed verdict on the breach of contract and breach of fiduciary duty claims. See Parris Properties, 305 Ga. App. at 735 (1).

Decided March 25, 2015.

Jacobs & King, Cary S. King, for appellant.

Sutherland Asbill & Brennan, Gregory W. Traylor, for appellee.

Paula J. Frederick, amicus curiae.

(b) Claims for unjust enrichment and money had and received.

The firm argues that the existence of the contract precluded Gao’s claims for unjust enrichment and money had and received, and consequently the firm was entitled to a directed verdict on those claims. See Tuvim v. United Jewish Communities, 285 Ga. 632, 635 (2) (680 SE2d 827) (2009) (“Unjust enrichment applies when as a matter of fact there is no legal contract[.]”) (citation and punctuation omitted); Fernandez v. Web Singularity, 299 Ga. App. 11, 13-14 (2) (681 SE2d 717) (2009) (claim for money had and received “exists only where there is no actual legal contract governing the issue”) (citation and punctuation omitted). The firm, however, did not make this argument to the trial court in support of its motion. The firm only argued generally that “[t]here’s no evidence of any unjust enrichment” and that it did not “think that there’s been proper evidence presented” to show money had and received. Because the firm’s motion did not state the specific ground upon which the firm now argues the motion should have been granted as to the claims of unjust enrichment and money had and received, we will not consider that ground on appeal. Phillips v. Blakenship, 251 Ga. App. 235, 237 (3) (554 SE2d 231) (2001); see OCGA § 9-11-50 (a).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       The arbitration proceeding in this case took place under a former version of these rules, which were amended effective December 1, 2012. See State Bar Rules, Part VI, Arbitration of Fee Disputes, Preamble.


text:
    A14A1851.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. WINTER.
    (771 SE2d 201)
   Branch, Judge.

Peter Winter brought suit against the Board of Regents for breach of an employment contract. The Board appeals the trial court’s denial of its motion for summary judgment. As a part of its ruling, the trial court conclusively denied the Board’s claim of sovereign immunity, thereby authorizing this direct appeal under the collateral order doctrine. See Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009). For the reasons that follow, we reverse and remand for entry of summary judgment in favor of the Board.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of Winter, the record shows that in May 2005, Winter, a British citizen and postdoctoral research scholar who was finishing a research fellowship at the University of Kansas (“UK”), contacted and began negotiations about postdoctoral employment with Dr. Rene Alvarez in the Department of Infectious Diseases (“DID”) at the College of Veterinary Medicine at the University of Georgia (“UGA”). Meanwhile, because Winter’s “J-l” educational exchange visa that enabled him to work at UK was about to expire, Winter applied to the United States Citizenship and Immigration Services (“USCIS”) for a change of status (“COS”) to a “B” visitor/ tourism visa, which does not allow employment, to cover the time until he could obtain another position. In a series of e-mails, Winter and Alvarez then negotiated the terms of his possible employment at UGA, including his salary and start date. In three successive e-mails on June 2, Alvarez stated that if Winter was still interested, he could draw up a formal offer and begin the necessary paperwork; Winter responded that he “would be interested . . . and . . . look[ed] forward to receiving the formal offer”; and Alvarez replied that a formal offer wouldbe forthcoming and “I am glad you have chosen to join our labs.” Winter asserts in his brief that by this e-mail, Alvarez acknowledged Winter’s acceptance of the offer of employment.

On June 6, Alvarez sent to Winter a written offer of a postdoctoral fellowship in the DID. The letter outlined the job duties and provided a term of one year beginning July 1 withasalary of $38,712, “pending approval by [UGA].” On the same day, Alvarez sent a revised letter identical to the first but containing a start date of August 1 and omitting the condition that the offer was subject to UGA approval. Although Winter may have indicated that he was British, neither letter referred to Winter’s immigration status. Winter did not thereafter accept the formal offer in writing. At the time, the Board of Regents had a policy of not providing postdoctoral fellows a written employment agreement.

Through the remainder of June, Winter and UGA corresponded about the paperwork that UGA required in connection with his employment and about how UGA would assist with getting Winter the correct visa. Internal UGA documents show that on June 23, Alvarez wrote to the DID chair, seeking his approval of hiring Winter and stating that “[w] e are trying to get Dr. Peter Winter started in our lab as a postdoctoral fellow.”

Meanwhile, on June 28, in connection with Winter’s COS, USCIS sent Winter a “request for evidence” (“RFE”) and stated that Winter’s COS was being held pending his response, which was not due until September 20. As evidenced by a subsequent series of writings, Winter and DID began to discuss the steps necessary to change Winter’s immigration status to “H-1B” for temporary employees, so that he could be employed at UGA. In early July, DID staff sought assistance from UGA’s International Student, Scholar and Immigrations Services Office (“ISSIS”). ISSIS initially decided to wait for USCIS to approve Winter’s COS application before submitting an H-visa application; ISSIS also learned that Winter had not responded to the RFE. By now it was late July, and Winter relocated to Athens on July 24.

At the beginning of August, Winter met with ISSIS about his H-visa application and was told that UGA could not submit an H-visa application until Winter responded to the RFE. Winter therefore responded to the RFE on August 2 and provided a copy of his response to UGA. ISSIS then told Winter that UGAcould not submit the H-visa application until Winter’s COS application was approved and he was given a B-visa. After reviewing Winter’s response to the RFE, ISSIS determined that UGA could not proceed with the H-visa application because Winter did not mention in his response to the RFE that he planned to work at UGA starting August 1, 2005.

Because UGA would or could not proceed on his H-visa application, and with advice from ISSIS, Winter turned to an alternative approach, which was to seek reinstatement of his J-l visa at UK and have it administratively transferred to UGA. ISSIS advised Winter that he would need to withdraw his pending COS in order to seek reinstatement of his J-l status and that failure to do so could mean that his COS would be granted, changing his J status to B, and making him unemployable. Winter took the necessary steps, and on August 11, he informed UGA that UK had reinstated his J visa and transferred it to UGA.

On August 12 and the following days, several documents were signed in connection with Winter’s employment at UGA. A department head signed a UGA form that reflected that Winter’s “start/ contract” date was August 1, that he was eligible for benefits, and that he had been assigned an employee identification number. That same day, Winter signed an Intellectual Property Agreement (the “IP agreement”) with UGA that stated that “[a]s part of the consideration for my employment by [UGA], I understand and agree that [UGA] and the [UGA] Research Foundation, Inc., have an interest in any intellectual property that I may make or develop while an employee of the University”; a DID department representative signed this agreement as a witness. Winter also signed a Board of Regents Loyalty Oath (swearing loyalty to the Constitutions of the United States and Georgia) as “an employee of the University System of Georgia.” Three days later, both Winter and a UGA representative signed a State Department form regarding Winter’s eligibility for J-l visa status. The next day, a DID department head signed a UGA “Employee Personnel Report” instructing an employee to put Winter on the payroll for one month and stating that Winter would become a “postdoc” in September.

Unfortunately, also on August 12, USCIS mailed an approval of Winter’s application for a visitor/tourism visa, and by August 17, the parties learned that Winter’s status had changed from J to B and that he was now unemployable in the United States. UGA told Winter that his only remaining option would be to again pursue an H-visa, and UGA left the process in Winter’s hands, refused to pay a $1,000 expediting fee that would have accelerated the process of obtaining an H-visa, and gave Winter a deadline of September 16 to show proof that he had obtained the necessary visa. Winter did not or could not obtain the H-visa at that time, and on September 14, UGA sent a letter to Winter stating that it was withdrawing its “offer” of employment because Winter had not obtained the appropriate visa status in a timely fashion to work at UGA. Consequently, Winter filed suit for breach of contract in the State Court of Fulton County. After the trial court denied the Board’s motion for summary judgment, we granted the Board’s application for interlocutory review.

On appeal, the Board contends the trial court erred by denying summary judgment to the Board for three reasons: (1) the State Court of Fulton County is not the proper venue for this action because Georgia law places venue exclusively in the Superior Court of Fulton County; (2) tbe Board is entitled to sovereign immunity because there is no signed written contract between the parties and the Board’s sovereign immunity is only waived for actions ex contractu; and (3) even if there was a written contract, UGA was authorized as a matter of law to rescind any employment agreement because Winter lacked the appropriate visa to legally work for UGA.

1. We first reject the Board’s argument that the trial court did not have jurisdiction of Winter’s suit. The Board claims that OCGA § 50-21-1 requires that all breach of contract claims against the Board of Regents must be brought in the Superior Court of Fulton County. This Code section provides that sovereign immunity is waived “as to any action ex contractu for the breach of any written contract . . . entered into by the state, departments and agencies of the state, and state authorities.” OCGA § 50-21-1 (a). It also provides:

Venue with respect to any such action shall be proper in the Superior Court of Fulton County, Georgia. The provisions of this subsection shall be cumulative and supplemental to any other venue provisions permitted on April 12, 1982, or thereafter permitted by law.

OCGA § 50-21-1 (b) (emphasis supplied). The Board contends the wording “shall be proper ...” requires that breach of contract actions against the state be brought in the specified court. This plain language, however, only means that venue cannot be contested in the specified court. Compare OCGA § 50-21-28 (which provides, among other things, that tort actions against the state “shall be brought in the state or superior court of the county wherein the loss occurred”) (emphasis supplied). Moreover, the plain meaning of the last sentence of OCGA § 50-21-1 (b) shows that venue for such a claim is not exclusive to the Superior Court of Fulton County, but rather that venue in that court “shall be cumulative and supplemental to” other legal venue. (Emphasis supplied.) Accordingly, the trial court had jurisdiction of Winter’s suit.

2. The Board contends the trial court erred by denying that it is entitled to sovereign immunity as a matter of law. As shown above, the defense of sovereign immunity, which applies to the Board of Regents, is waived as to any action “ex contractu for the breach of any written contract.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c); see also OCGA § 20-3-36 (sovereignimmunity applies to the Board ofRegents); Bd. of Regents of Univ. System of Ga. v. Barnes, 322 Ga. App. 47, 49 (2) (743 SE2d 609) (2013) (same). Any waiver of immunity must be strictly followed, “and an implied contract will not support a waiver of immunity under the provisions of the Georgia Constitution.” Id. at 50 (2) (citation omitted). The party seeking to benefit from the waiver, here Winter, has the burden of proving a waiver of immunity and, therefore, the burden of proving the existence of a written contract. Id. at 49-50 (2). For the following reasons, we hold that even if there was an agreement between the parties, that agreement was not in writing, and therefore the Board’s sovereign immunity was not waived.

(a) The parties clearly did not enter into a formal, traditional written agreement that both parties signed. The Board had a policy of not providing postdoctoral fellows a written employment agreement, and there is no evidence of such an agreement in the record. Also, Winter argues in his brief that he accepted the Board’s offer via e-mail on June 2, two months before he signed any documents in connection with his employment. There is no evidence whatsoever of a written employment agreement dated at or about the time that Winter contends he accepted employment.

(b) Winter has not carried his burden of showing that the parties entered into signed contemporaneous writings sufficient to establish a written contract. He makes three arguments.

(i) Winter contends the June 6 offer signed by Alvarez together with documents he signed on August 12 constitute signed contemporaneous writings. We disagree. A written contract can consist of multiple documents “as long as all the necessary terms are contained in signed contemporaneous writings.” Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (1) (314 SE2d 874) (1984) (multiple documents meeting this test satisfy the statutory requirements and purpose of the Statute of Frauds); Bd. of Regents v. Tyson, 261 Ga. 368, 369 (404 SE2d 557) (1991) (applying reasoning of Baker to question of ex contractu waiver of sovereign immunity). “Contemporaneous” in this setting does not “connote perfect or absolute coincidence in point of time” and has been held to mean “reasonably contemporaneous.” Dabbs v. Key Equip. Finance, 303 Ga. App. 570, 574 (694 SE2d 161) (2010) (citation, punctuation and footnote omitted); see also Manry v. Hendricks, 66 Ga. App. 442, 453 (18 SE2d 97) (1941) (“One thing is contemporaneous with a given transaction when it is so related in point of time as reasonably to be said to be a part of such transaction.”). Nevertheless, a nine-week interval between the execution of documents strongly suggests that those documents are not contemporaneous. See Newell Recycling of Atlanta v. Jordan Jones & Goulding, 317 Ga. App. 464, 466-467 (731 SE2d 361) (2012) (documents dated three months apart are not contemporaneous).

In addition, the June events and the August 12 events strongly suggest that two different events or transactions occurred at those times, not one. More specifically, Winter contends he accepted UGA’s offer in June; in other words, the parties entered into an agreement at that time and that event was concluded. Two months then passed during which Winter moved to Athens, which is consistent with Winter’s understanding that he already had an employment agreement, which, as we have already shown, was not in writing. Then in early August, Winter and UGA continue to attempt to resolve Winter’s visa issues and eventually sign several employment-related documents on August 18. These events in early August are not only separate in time from the events of early June but reflect that the parties were engaged in a completely separate activity, finalizing administrative details related to Winter’s employment. Thus, the significant time interval between June 6 and August 12, combined with the behavior of the parties, shows that the June documents and the August documents should not be treated as contemporaneous in this case. Accordingly, the June and August documents do not constitute signed contemporaneous writings sufficient to establish a written agreement for the purpose of waiving sovereign immunity.

(ii) Winter also argues that both parties signed contemporaneous documents on August 12 that constitute signed contemporaneous writings sufficient to constitute a written agreement; he cites the Loyalty Oath, the IP agreement, and the State Department certificate of eligibility for J-l visa status. This argument, too, is without merit. First, these documents do not include all of the terms and conditions of Winter’s alleged employment agreement. Tyson, 261 Ga. at 369 (no written agreement where multiple contemporaneous documents did not contain all the necessary terms of agreement). Second, the only document of the three signed by someone from UGA is the State Department certificate, which was obviously signed for the purpose of complying with federal regulations and not as a part of an employment contract. Thus, Winter has not shown that UGA signed any documents on or about August 12 that relate to the terms of his employment. The only other documents that we have found in the record dated on or about August 12 that are signed by UGA officials are clearly internal administrative forms and not documents whereby UGA purports to enter into employment terms with Winter.

In short, Winter has failed to show that the parties signed on or about August 12, contemporaneous writings that contain the necessary terms of employment as required by Baker v. Jellibeans, 252 Ga. 458 (1). The case of Bd. of Regents v. Doe, 278 Ga. App. 878, upon which Winter relies, is distinguishable. In that case, Georgia Tech sent a written offer that contained all the necessary terms of an employment agreement, including a specific salary, benefits, and starting date; the letter also requested a “formal letter of acceptance.” Twenty-four days later, the plaintiff accepted the offer in writing and the court held that there was a written agreement. Id. at 879, 881 (1) (a).

Decided March 25, 2015.

SamuelS. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Senior Assistant Attorney General, Elizabeth A. Harris, Assistant Attorney General, for appellant.

Dorminey & Cox, A. Blair Dorminey, for appellee.

(iii) Winter also argues that a reference to consideration in the IP agreement somehow proves that the parties signed contemporaneous writings containing the necessary terms of employment. We disagree. Although, as stated in the IP agreement, Winter signed the IP agreement “[a]s part of the consideration for [his] employment,” that language cannot override the above reasoning, i.e., that the June 6 offer was not contemporaneous with the August 12 documents and that the August 12 documents standing alone were insufficient to establish a written agreement. Further, the IP agreement standing alone addressed only one aspect of Winter’s employment and it was not signed by UGA.

For the above reasons, we conclude that Winter has not carried his burden of showing that the Board of Regents waived its sovereign immunity for a claim of breach of contract. See Ga. Dept. of Community Health v. Data Inquiry, 313 Ga. App. 683, 686-687 (1) (b) (722 SE2d 403) (2012) (without evidence of signed contemporaneous agreements plaintiff failed to carry burden of showing existence of a written contract for the purpose of waiving sovereign immunity). The trial court’s decision is therefore reversed and the case remanded for entry of summary judgment in favor of the Board of Regents.

3. The Board’s final enumeration of error is therefore moot.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Boggs, J., concur.

       Winter did not file any affidavits or other sworn testimony in response to the Board’s motion for summary judgment, and he was not deposed. He relies solely on the documents produced in discovery. Accordingly, there is no testimony in the record from Winter regarding any conversations that he had in connection with his negotiations with UGA for employment.

       The applicable federal regulations provide that it is the employer seeking to employ a qualifying temporary employee who must petition for H-1B status. 8 CFR § 214.2 (h) (1) (i), (h) (2) (i) (A).

       The record, however, contains a signed letter dated July 14 from the head of DID to USCIS requesting H-1B status for Winter for the period August 1, 2005 to June 30, 2006.

       UGAis precluded by law from employing a person with a tourist visa. See 22 CFR§ 41.31 (b) (1), (2).

       An office manager/administrative assistant for DID averred in an affidavit that Winter’s start date was extended to September 1, but the affidavit does not state when this occurred.

       Winter’s argument that pursuant to the former Georgia Electronic Records and Signature Act (Ga. L. 1997, p. 1052, § 1) his e-mails constituted signed writings sufficient to establish a written agreement for purposes of waiving sovereign immunity is without merit. That act, which was replaced by the Georgia Uniform Electronic Transactions Act in 2009 (Ga. L. 2009, p. 698, § 2), provided, among other things, that “[w]hen a rule of law requires a signature, an electronic signature satisfies that rule of law.” OCGA § 10-12-4 (d) (2005). And an “electronic signature” was defined as “a signature created, transmitted, received, or stored by electronic means and includes but is not limited to a secure electronic signature. OCGA § 10-12-3 (2005). But Winter has not provided any evidence that he provided an electronic signature at any time during his negotiations with UGA. Moreover, the 1997 act also provided that “[njothing in this chapter shall be construed to require any department, agency, authority, or instrumentality of the state or its political subdivisions to create, send, receive, store, recognize, accept, be bound by, or otherwise use electronic records or electronic signatures.” OCGA § 10-12-4 (i) (1). And Winter has not shown that the Board ever elected to be bound by electronic signatures at that time.

       Compare Patterson v. Bennett Street Properties, 314 Ga. App. 896, 900 (1) (726 SE2d 147) (2012) (guaranty and two other agreements were signed within three days and were part of the same transaction); Hong Investments v. Sarsfield, 312 Ga. App. 82, 83 (717 SE2d 679) (2011) (lease and guaranty executed one day apart were sufficiently contemporaneous and part of the same transaction); Bd. of Regents of the Univ. System of Ga. v. Doe, 278 Ga. App. 878-879 (630 SE2d 85) (2006) (documents signed 24 days apart were contemporaneous); Manry, 66 Ga. App. at 453-454 (documents dated six days apart in the same transaction held to be contemporaneous); Marietta Savings Bank v. Janes, 66 Ga. 286, 288-289 (1881) (contract in writing even though comprised of a note and letters dated 20 days apart).


text:
    A14A2013.
    In re ESTATE OF JOHN MALCOLM WADE.
    (771 SE2d 214)
   Branch, Judge.

In a 1982 will, John Malcolm Wade named all five of his children as co-executors of his estate. Soon after Wade died in 1987, the probate court issued letters testamentary to all five children, thereby appointing them as co-executors. Almost 25 years later, in August 2012, appellant Mary Virginia Wade petitioned the probate court to obtain an accounting of her siblings’ dealings on behalf of the estate. After a trial, the probate court concluded that the siblings had violated the terms of their father’s will and ordered an accounting of the estate. Three of the four siblings — Bonnie Conner, Dorothy Vuturo, and Malcolm Wade —■ appealed to the superior court, where they moved for summary judgment on grounds including that Mary’s action for an accounting was time-barred. On this appeal from the superior court’s grant of the siblings’ motion, Mary argues that her action is not time-barred because the estate was still open and because there was no adverse possession by her siblings that would have caused her cause of action to accrue and the statute of limitation to have run. We agree and therefore reverse.

On appeal from the decision of a probate court, the superior court conducts a de novo investigation of the probate court’s proceedings, and in doing so, will consider the records from the probate court, as well as other competent evidence which may not have been presented to the probate court.

Garren v. Garren, 316 Ga. App. 646, 647 (2) (730 SE2d 123) (2012), citing OCGA § 5-3-29. “ ‘It is not the province of the superior court on such an appeal to review and affirm, but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.’ ” Id. at 648 (3), quoting Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800) (1972). “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.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (citations omitted). This Court reviews a trial court’s grant of summary judgment de novo, construing the record in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000).

Thus viewed in favor of Mary, the record, which is scant, shows that on December 29, 1987, all five of the Wade children were sworn in as co-executors. At some point shortly after their appointment, the siblings orally agreed that Mary would be the “coordinating executor” charged with paying the estate’s bills. At some later point, however, the siblings agreed that any three of them could authorize payments by the estate and that Bonnie should administer its assets so as to wind up its affairs within six years. At an unspecified date, Mary took a share of the estate’s personal property according to a system of apportionment also agreed upon by all five children. By another unspecified date, Mary had packed up the estate’s papers and shipped them to Bonnie.

In March 1988, a bank sent all five siblings checks and stock certificates representing what the bank called a “final distribution” from the estate’s account at that bank. Of the five siblings, only Mary did not sign and return receipts for this attempted distribution. In August 1988, Malcolm negotiated a $1 million loan from a second bank to the estate in exchange for an interest in estate assets including real property in North Carolina and Georgia as well as nearly 9,000 shares of stock in the privately held “N. G. Wade Investment Co.” In March 1989, Malcolm executed a power of attorney as to estate matters in favor of Bonnie.

In February 1991, all five siblings received a summary from a certified public accountant valuing the estate’s assets at approximately $1.2 million. By January 1993, Mary had received a four-carat diamond and documents concerning the estate’s assets from Dorothy. In March 1993, Mary contacted the estate’s accountant to ask for documents and noted that “until I have adequate financial records to see that Estate assets are distributed properly, I will not sign any papers to close the Estate[.]” In the same document, Mary also asserted that estate funds “ha[d] been spent without [her] knowledge or consent.” In March 1994, Mary asked Bonnie for copies of documents relevant to the estate, including transfers of a house and an automobile and a copy of a sale agreement concerning timber on property located in North Carolina. In January 1999, Mary paid $60,000 on her own behalf and Bonnie paid $60,000 on behalf of the four remaining siblings to close out the 1988 loan to the estate. In the same year, Carolyn demanded that Bonnie allow her to review the estate’s financial records.

In January 2009, Bonnie wrote to Mary asking for her signature on an agreement between all the siblings to harvest timber from the estate’s land in Charlton County and share the proceeds thereof, estimated at $27,700. The draft agreement noted that “a fire or pine beetles among other disasters could dev[a] state this gain offered to [the siblings] at any time.” Bonnie also asked for Mary’s signature on a second document requesting the probate court to close the estate, “all the business thereof being completed,” and a recent bank statement showing an estate account balance of $9,547.76. Bonnie later averred that the siblings also sought to divide the Charlton County parcel at this time. Mary did not sign or return either the draft agreement or the request to close the estate.

In August 2012, Mary filed her petition for an accounting in probate court. As they had previously, Dorothy and Malcolm filed notarized documents in the probate court authorizing Bonnie to act on their behalf concerning the estate. Dorothy stated that Bonnie had generated “remarkable amounts of money” for the beneficiaries, had “found the highest prices to be paid for timber and land sales,” and “created and oversaw many positive outcomes for her brother and sisters.” After the November 2012 hearing, at which only Mary and Bonnie appeared, the probate court held that that in light of Bonnie’s admission that she or others had “intentionally destroyed” many estate records, “any difficulty the co-executors have had in preparing an accounting [would] be entirely self-inflicted.” The probate court also concluded that “decisions regarding the administration of the estate” had been made “by a majority of the co-executors,” rather than unanimously, in apparent violation of both OCGA § 53-7-5 (a) and the terms of John Malcolm Wade’s will, which did not contain any provision for majority rather than unanimous action. The probate court ordered an accounting within 90 days.

In January 2013, the siblings appealed the probate court’s ruling to the superior court. Both sides moved for summary judgment — the siblings on the grounds that Mary’s petition was time-barred and that she had refused to relinquish the diamond or otherwise agree to a division of the estate’s property, and Mary on the ground that the siblings were required to render an accounting as a matter of law. In an August 2013 affidavit, Bonnie testified that the estate’s only remaining undistributed assets were the 29-acre Charlton County parcel of land and the diamond Mary had received many years before. Also in August 2013, the siblings filed a counterclaim against Mary for conversion of the family diamond. In April 2014, the superior court granted the siblings’ motion for summary judgment without explanation and without ruling on the siblings’ counterclaim. This appeal followed.

1. As the parties agree, the first question is whether Mary’s petition for an accounting is time-barred under OCGA §§ 53-7-62 (a) and 9-3-27. Mary argues that she may seek an accounting at any time while the estate remains open, while the siblings argue that Mary was required to bring such an action no later than ten years and six months after the appointment of the co-executors. Both of these contentions miss the mark.

OCGA § 53-7-62 (a) provides in relevant part that “[a]ny person interested as an heir or beneficiary of an estate or the probate court may, after the expiration of six months from the granting of letters, cite the personal representative to appear before the probate court for a settlement of accounts.” OCGA § 9-3-27 provides that “[a]ll actions against executors, administrators, or guardians, except on their bonds, shall be brought within ten years after the right of action accrues.” The ten-year limitation period of OCGA § 9-3-27 applies to petitions for an accounting. Rowland v. Rowland, 204 Ga. 603, 608 (5) (50 SE2d 343) (1948).

The five original co-executors received their letters testamentary in December 1987, with the result that Mary could have brought an action for accounting as early as June 1988, or six months after their appointment. OCGA § 53-7-62 (a). As co-executors, however, each of the five siblings owes all the others, who are also co-beneficiaries, the care required of a fiduciary. Bloodworth v. Bloodworth, 260 Ga. App. 466, 471 (1) (579 SE2d 858) (2003) (“[a]s fiduciaries,” co-executors “acquired a number of legal duties in relation to the beneficiaries,” including “full and fair disclosure in a timely manner of all things adversely affecting” the beneficiaries’ rights). Because of the high standard of care imposed on executors, the Supreme Court of Georgia has long refused to apply the ten-year statute of limitation to bar a beneficiary’s action for accounting by an executor in the absence of evidence that the executor has held the estate’s property adversely to the beneficiary:

[I]t is well settled in [Georgia] that not only in express or implied trusts, hut in other fiduciary relations, the statute [of limitation] will not begin to run so long as the trust or duty with regard to specific property continues, is acknowledged to be subsisting, and there is no change of status to show an adverse holding of such property; that as long as a person who is in possession of the property of another, using the same for the owner’s benefit, recognizes the latter’s ownership, no lapse of time will bar the owner from asserting his title as against the person in possession; that before any lapse of time will be a bar to the owner it must appear that the person in possession has given notice, or there must be circumstances shown which would be equivalent to notice to the owner that the person in possession claims adversely to him; that in such a case the statute will begin to run from the date of such notice; and that until the owner has such notice he has the right to treat the possession of the other person as his own.

Reynolds v. Dorsey, 188 Ga. 218, 221 (2) (3 SE2d 564) (1939) (citations omitted; emphasis supplied); Salter v. Salter, 209 Ga. 90, 95 (2) (70 SE2d 453) (1952); Manry v. Manry, 196 Ga. 365, 369 (2) (26 SE2d 706) (1943) (“So long as the executors h[o]ld the title and possession of [an] estate as such, it [is] a continuing executory trust, and the bar of the statute of limitations does not run against such a trust until its termination or repudiation”) (citations omitted); see also In re Estate of Holtzclaw, 293 Ga. App. 577 (667 SE2d 432) (2008) (concerning fee awards arising from a petition for accounting brought in 2005 against an executor appointed in 1984, but not addressing the accrual of the petitioner’s cause of action).

It is true that in her 1993 letter to the estate’s accountant, Mary both asked for information as to the estate and accused at least one of her siblings of “spending” at least some of the estate’s assets without her “knowledge or consent.” This letter was sent to the estate’s accountant, not to any of her co-executors, however, and it sought to reserve Mary’s own right as co-executor to review the documents, and not to exercise her right as a beneficiary to obtain an accounting. Compare Rowland, 204 Ga. at 604, 608 (5) (applying OCGA § 9-3-27 to bar an action for accounting where the executor, “although requested to do so,” had “never made any accounting or settlement with the [beneficiaries] for their interest in [an] estate”). Further, we have seen nothing in the record to suggest that the siblings ever denied Mary’s status as a co-beneficiary of any specific property owned by the estate. To the contrary, the record also shows that whatever disagreements may have arisen about the disposition of the estate, no sibling ever repudiated any other sibling’s right to a proportionate share in those contents, as when the siblings presented Mary with a proposed settlement of the estate’s assets in 1988, only four months after the appointment of the co-executors, and in 2009, when they attempted to dispose of the Charlton County land parcel and to close the estate.

A question of fact thus remains as to whether any of the siblings’ actions before the filing of Mary’s petition put Mary on notice that they had claimed any estate property adversely to her. Because we cannot say as a matter of law that the siblings adversely held the estate’s assets or repudiated Mary’s claim on them at any time before Mary filed her petition, a jury must decide whether the ten-year bar of OCGA § 9-3-27 began to run before that time. It follows that the trial court erred when it granted summary judgment to the siblings on this basis. Salter, 209 Ga. at 96-97 (affirming overruling of demurrer to petition for accounting where nothing on the face of the petition showed that the trust at issue “was not acknowledged to be subsisting or that there was any change of status to show an adverse holding by the executors that would bring this case within the statute of limitations”); Manry, 196 Ga. at 369 (2) (where a will did not direct when a division of an estate was to be made, a beneficiary’s action for accounting was not time-barred when the executors had qualified 15 years before but had not disposed of the estate’s assets until six years before the filing of the action).

Decided March 25, 2015.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, G. Todd Carter, Emily R. Hancock, for appellant.

Gibson & Associates, Adrienne J. Gibson, Douglas L. Gibson, Kenneth A. Taft, for appellee.

2. The record shows that the siblings also moved for summary judgment on the ground that Mary had refused to agree to a division of the estate’s property. The trial court made no finding on this question, and the parties have not briefed the matter on appeal. We therefore leave it to further proceedings below. See City of Gainesville v. Dodd, 275 Ga. 834, 835-836 (573 SE2d 369) (2002) (appellate court may exercise its discretion to determine whether a ground for summary judgment raised but not ruled on below is properly affirmed). Our decision also moots Mary’s assertion that the trial court erred in failing to grant her summary judgment.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       The fourth sibling, Carolyn, did not appear at the hearing before the probate court below and is not a party to this appeal.

       The record does not include a transcript of the hearing before the probate court.

       OCGA § 53-7-5 (a) of the Revised Probate Code of 1998 provides that “[i]f more than one personal representative is qualified and unless the will provides otherwise ..., [t]he personal representatives must act by their unanimous action[.]” The same subsection also specifies, however, that “[t]he personal representatives may delegate in writing to one or more of them the authority to act for all of them; provided, however, that all the personal representatives remain liable for the actions of the personal representative who is authorized to act.” Id. Mary has not asserted any error as to the application of the Revised Probate Code to this dispute. See OCGA § 53-1-1 (b) (Revised Probate Code of 1998 became effective on January 1 of that year, “provided, however, that no vested rights of title, year’s support, succession, or inheritance shall be impaired”); McPherson v. McPherson, 307 Ga. App. 548, 550-551 (1) (a) (705 SE2d 314) (2011) (applying Revised Trust Code of 2010 to earlier trust instrument and transactions where that application did not affect any “vested rights”).