author: Miller, Judge. ANDREWS, Presiding Judge,

text:
    A15A0874.
    KING-MORROW v. AMERICAN FAMILY INSURANCE COMPANY.
    (780 SE2d 451)
   Miller, Judge.

Almost two years after Melissa King-Morrow was involved in an auto accident, she sued the other driver and perfected service on her uninsured motorist carrier, American Family Insurance Company (“AFIC”). AFIC filed a motion for summary judgment on the ground that King-Morrow failed to timely notify it of the accident. The trial court granted AFIC’s motion. King-Morrow appeals, contending that the trial court erred in granting summary judgment to AFIC. For the reasons that follow, we agree and therefore reverse.

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

(Citations and punctuation omitted.) Campbell v. The Landings Assn., Inc., 289 Ga. 617, 618 (713 SE2d 860) (2011).

The undisputed facts show that King-Morrow was in an accident on December 28,2011. At the time of the accident, King-Morrow lived with her daughter, who had an uninsured motorist policy with AFIC. The policy covered relatives living in the policyholder’s household, including King-Morrow. AFIC did not learn of the accident until December 4, 2013, when King-Morrow filed the instant suit and served AFIC. AFIC answered and disclaimed liability. In its motion for summary judgment, AFIC conceded that King-Morrow qualified as an insured under the policy, but asserted that she failed to comply with the required conditions precedent because she did not promptly notify AFIC of the accident.

On appeal, King-Morrow contends that the trial court erred in granting summary judgment to AFIC because the policy did not require her to give AFIC notice of the accident. We agree.

Under Georgia law, insurance companies are generally free to set the terms of their policies as they see fit so long as they do not violate the law or judicially cognizable public policy. ... In construing an insurance policy, we begin, as with any contract, with the text of the contract itself. One of the most well-established rules of contract construction is that the contract must be construed as a whole, and the whole contract should he looked to in arriving at the construction of any part.

(Citation omitted.) Wade v. Allstate Fire and Cas. Co., 324 Ga. App. 491, 492-493 (751 SE2d 153) (2013).

“The policy’s terms are also construed as reasonably understood by an insured.” (Punctuation and footnote omitted.) Murphy v. Ticor Title Ins. Co., 316 Ga. App. 97, 100 (1) (729 SE2d 21) (2012). Moreover, in construing an insurance policy, the test is what a reasonable person in the position of the insured would understand the words to mean, not what the insurer intended the words to mean. See id.

Finally, when faced with a conflict over a policy’s coverage, a trial court must first determine, as a matter of law, whether the relevant policy language is ambiguous. Murphy, supra, 316 Ga. App. at 100 (1).

A policy which is susceptible to two reasonable meanings is not ambiguous if the trial court can resolve the conflicting interpretations by applying the rules of contract construction. Where a term of a policy of insurance is susceptible to two or more reasonable constructions, and the resulting ambiguity cannot be resolved, the term will be strictly construed against the insurer as the drafter and in favor of the insured.

(Footnote omitted.) Id.

“[A] notice provision expressly made a condition precedent to coverage is valid and must be complied with, absent a showing of justification.” (Citation omitted.) Eells v. State Farm Mut. Automobile Ins. Co., 324 Ga. App. 901, 903 (1) (a) (752 SE2d 70) (2013). In the instant case, the policy provides that, “[w] e may not be sued unless all the terms of this policy are complied with” and “[i]f we are prejudiced by a failure to comply with the following duties,” including the notice provision set forth below, “then we have no duty to provide coverage under this policy.” Thus, the policy sets forth a notice provision that is a condition precedent. See Eells, supra, 324 Ga. App. at 903 (1) (a).

The relevant notice provision of the policy provides, if “you” have an accident or loss, “A. Notify us[.] Tell us promptly. Give time, place, and details. Include names and addresses of injured persons and witnesses.” The term “you” is defined only as the policyholder and the policyholder’s spouse. The subsequent provision of the policy provides: “B. Other Duties [.] 1. Each person claiming any coverage of this policy must also . . . cooperate with us and assist us in any matter concerning a claim or suit.” This provision also sets forth additional duties that apply to each person claiming coverage. The policy requires that any person claiming coverage under the policy promptly send AFIC any legal papers received related to a claim or suit and that any person insured under the policy inform AFIC of any settlement offers. None of these other provisions, however, requires a person claiming coverage under the policy to promptly notify AFIC of the accident or loss.

AFIC argues that the accident-notice provision applies to “each person claiming any coverage” because the subsequent “Other Duties” provision applies to “[e]ach person claiming any coverage.” In its order granting summary judgment, the trial court acknowledged that the policy definition of “you” did not include King-Morrow, but nonetheless accepted AFIC’s argument that the “Other Duties” section of the policy required King-Morrow to give prompt notice of the accident.

Contrary to the dissent, the accident notice provision is susceptible to two reasonable constructions. Under the first construction, given the policy’s limited definition of “you,” a person would understand that definition to require only policyholders and their spouses to give prompt notice of an accident. See Murphy, supra, 316 Ga. App. at 100 (1). Since King-Morrow is the policyholder’s mother, she was not required to give notice under this construction.

Under the second construction, relied on by the trial court and urged by the dissent, each person claiming coverage is also implicitly required to give prompt notice of the accident because the policy explicitly imposes other duties — aside from prompt notification — on each person claiming coverage. Under this construction, King-Morrow would have been required to give notice. Given the tenets of construction, however, we cannot broaden the application of the accident-notice provision to apply to anyone making a claim under the policy, as the dissent argues that we should do. See Murphy, supra, 316 Ga. App. at 100 (1).

As the insurer, AFIC is free to draft a policy that explicitly requires anyone claiming coverage to notify it promptly of an accident. Compare Royer v. Murphy, 277 Ga. App. 150 (625 SE2d 544) (2006) (policy required the insured or any person claiming coverage under the policy to notify the insurer of accident). Very likely, AFIC intended its notice provision to apply to anyone claiming coverage; AFIC, however, failed to draft a policy that clearly requires anyone claiming coverage to give timely notice. Moreover,

the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.

(Citation omitted.) Ace American Ins. Co. v. Truitt Brothers, Inc., 288 Ga. App. 806, 807 (655 SE2d 683) (2007).

Since King-Morrow would have reasonably understood the notice provision to not apply to her and, at best, there is an ambiguity as to whether the notice provision applies to people making claims under the policy who are neither policyholders nor their spouses, the trial court erred in granting summary judgment to AFIC on the ground that King-Morrow failed to comply with the conditions precedent by giving timely notice.

Judgment reversed.

Barnes, P. J., Ellington, P. J., and Branch, J., concur. Dillard, J., and Ray, J., concur in judgment only. Andrews, P. J., dissents.

ANDREWS, Presiding Judge,

dissenting.

Because there doesn’t appear to be an ambiguity in AFIC’s policy except for the one fashioned by the majority opinion, I respectfully dissent.

I agree with the general proposition cited by the majority, i.e., where an insurance policy term is susceptible to two reasonable constructions and any resulting ambiguity cannot be resolved, the term is to be strictly construed against the insurer as drafter of the policy. Wade v. Allstate Fire and Cas. Co., 324 Ga. App. 491, 492-493 (751 SE2d 153) (2013). But I think the only reasonable construction of AFIC’s policy here is that anyone claiming coverage under the policy must give timely notice of the loss, so as to afford AFIC a meaningful opportunity to investigate the claim.

The pertinent provisions in AFIC’s policy declare:

IF YOU HAVE AN ACCIDENT OR LOSS
If we are prejudiced by a failure to comply with the following duties, then we have no duty to provide coverage under this policy. A. Notify Us Tell us promptly. Give time, place, and details. Include names and addresses of injured persons and witnesses. B. Other Duties Each person claiming any coverage of this policy must also: a. cooperate with us and assist us in any matter concerning a claim or suit.

Even the majority opinion finds the “B. Other Duties” section to apply to the appellant in this case, as she is a person claiming coverage under the policy. But being bound by “other duties” presupposes being bound by a first duty or duties, in which case that means the appellant was also obligated to give AFIC prompt notice of loss under the “Notify Us” section of the policy so AFIC could investigate the claim.

The policy section “DEFINITIONS USED THROUGHOUT THIS POLICY,” in which “you and your” is defined as the policyholder and spouse, immediately precedes the actual liability and property damage coverage sections of the policy. The “Definitions” section defines terms that specifically appear throughout “Part I-Liability Coverage,” and “Part II-Car Damage Coverages.” So I take the “Definitions” section as an aid to understanding the coverages set forth in Part I and Part II, and not as a limitation on the general notice of loss requirements.

In short, I do not believe it is a reasonable construction to hold that only the policyholder and/or spouse is obligated to notify the insurer of a claimed loss under the policy. So even if some ambiguity exists here, there is only one reasonable construction: anyone claiming a loss under the policy must promptly notify the insurer so as to afford it a meaningful opportunity to investigate.

In some cases, there may be some wiggle room in determining what constitutes “promptly,” but I think it’s safe to say waiting over 23 months to notify the insurer is not prompt. For the above reasons, I would affirm the trial court’s grant of summary judgment for AFIC.

Decided November 20, 2015.

Charles M. Cork III; Perkins Law Firm, Ann-Margaret Perkins, for appellant.

Fain, Major & Brennan, Mitchel S. Evans, for appellee.

       Although neither the trial court nor either party appears to have considered the addendum to the accident-notice provision of the policy, we note that it states: “The requirement for giving notice of a claim, if not satisfied by the insured within 30 days of the accident, may be satisfied by an injured third party[.]” This provision provides an alternate means of notice, but does not expand or change the definition of “you.” Moreover, to the extent that this provision is ambiguous as to whether the insured is required to give notice of a claim, given the limited definition of “you,” it must be strictly construed against AFIC as the drafter and in favor of King-Morrow as the insured. See Wade, supra, 324 Ga. App. at 493.

       Given our holding above, we need not address King-Morrow’s remaining arguments.


source: Caselaw Access Project

author: McMlLLIAN, Judge. BAENES, Presiding Judge,

license: Public Domain

text:
    A15A0887.
    MAY v. THE STATE.
    (780 SE2d 455)
   McMlLLIAN, Judge.

Following a stipulated bench trial, Rocky Eugene May, Jr., was convicted of possession of methamphetamine and sentenced to three years on probation. May appeals, contending that the trial court erred by denying his motion to suppress evidence seized when police officers responded to a domestic disturbance call at his residence. We affirm.

In Hughes v. State, 296 Ga. 744 (770 SE2d 636) (2015), our Supreme Court explained what standard of review appellate courts should apply when reviewing the grant or denial of a motion to suppress. As an overarching principle, “[w]hen the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.” Id. at 746 (1). From this principle, the Court identified three corollaries:

First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

(Citations omitted.) Id. Related to these corollaries, the Court also noted that “less deference to the trial court is owed to the extent that material facts definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility.” Id. at n.5 (citing case involving material facts that could be discerned from a video recording). See also State v. Allen, 298 Ga. 1 (1) (a) (779 SE2d 248) (2015).

The only witness at the hearing on the motion to suppress was a sergeant with the Walton County Sheriff’s Office who conducted the search during which the contested evidence was seized. The sergeant’s testimony, construed in favor of the trial court’s factual findings, showed that on July 18, 2013, he responded to a domestic disturbance call at May’s residence. When he arrived, he told May, who was standing on the front porch, that he was responding to a domestic call. May explained that he and his girlfriend had gotten into a dispute over a set of car keys and that she had already left the residence. When a second officer arrived, he requested May’s consent to walk through the residence to make sure that May’s girlfriend was not inside. May agreed, and the second officer conducted the search while the sergeant remained on the porch with May.

While inside the house, the second officer observed a clear, glass pipe, which the sergeant recognized as a pipe used to smoke methamphetamine. After he observed the pipe, the sergeant thought that he might be dealing with someone who could be under the influence of methamphetamine and advised May that he was going to do a pat-down for the safety of both officers. The sergeant testified that during the pat-down, he felt a “little small bulge in [May’s] front, right pocket.” He further testified, “I could tell as I manipulated it with my open hand that it was ... some sort of baggie and it had some sort of hard substance in it, crystal substance. In my training and past experience, I knew that was probably going to be contraband, that it was going to be methamphetamine.” The State then asked, “So as soon as you began the pat-down, you immediately realized that it was some type of drug or baggie?” The sergeant responded, “Controlled substance, yes, sir.” The sergeant asked May if he had any methamphetamine on him, and when May said no, the sergeant reached into May’s pocket and pulled out a clear plastic bag that contained less than one gram of methamphetamine. May was arrested and subsequently charged with possession of methamphetamine.

May moved to suppress the evidence obtained from the search of his person and his residence. The trial court denied the motion, ruling that the officer was entitled to conduct a pat-down for weapons for the officers’ safety based on the court’s determination that (1) “the officers were called to the scene because of a potentially violent, domestic dispute,” and (2) the first officer had “testified that in his experience those under the influence of methamphetamine are volatile and potentially dangerous.” The court also ruled that the officer was entitled to remove the baggie from May’s pocket pursuant to the “plain feel” doctrine. May was subsequently convicted of possession of methamphetamine following a bench trial.

On appeal, May contends that (1) the pat-down was not justified and (2) the sergeant improperly seized the contraband pursuant to the “plain feel” doctrine.

1. “Under Terry v. Ohio[, 392 U.S. 1 (88 SCt 1868, 20 LE2d 889) (1968)], a law enforcement officer, for his own protection and safety, may conduct a [pat-down] to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted.” Jones v. State, 314 Ga. App. 247, 250-51 (2) (723 SE2d 697) (2012). But in order to conduct such a search, the officer first “must have constitutionally adequate, reasonable grounds for doing so.” (Citation omitted.) Id. at 251 (2). Therefore, “[s]o long as the officer... has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.” (Citation and punctuation omitted.) Thompson v. State, 230 Ga. App. 131, 133 (495 SE2d 607) (1998). “[A]n officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Citation and punctuation omitted.) Mwangi v. State, 316 Ga. App. 52, 56 (1) (b) (728 SE2d 729) (2012).

In similar circumstances, we have held that investigating the report of a domestic violence situation supported an officer’s reasonable belief that the suspect was a safety concern. See Lester v. State, 287 Ga. App. 363, 365 (651 SE2d 766) (2007). In addition, in this case, the investigating officer, who was experienced and trained in narcotics detection, found a clear pipe in plain view on a table, which the officer believed had been used to smoke methamphetamine. We have found that suspicion of drug activity is a factor for a reasonable officer to believe that his safety was at risk. Jones, 314 Ga. App. at 251 (2). And the sergeant testified that in his experience, persons under the influence of methamphetamine are volatile and dangerous. Accordingly, we discern no error in the trial court’s determination that the pat-down was justified.

2. Turning to the issue of whether the seizure of the contraband was allowed under the plain feel doctrine, the law is well established that “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.” Minnesota v. Dickerson, 508 U.S. 366, 375 (II) (B) (113 SCt 2130, 124 LE2d 334) (1993). Applying this doctrine, the trial court found that “[b]ased on [the sergeant’s] testimony, the item’s contour and mass, without being otherwise manipulated, made its identity as contraband immediately apparent to him given his training and expertise.”

As previously noted, the State asked the sergeant on direct whether as soon as he began the pat-down, he “immediately realized” that the object in May’s pocket was “some type of drug or baggie,” to which the officer responded, “Controlled substance, yes, sir.” May did not object to this question as leading or otherwise, and thus the trial court was authorized to rely on the sergeant’s testimony in this regard. May’s counsel further explored the specifics of the search during cross-examination, as did the State on re-direct. Although it is true that the sergeant used the word “manipulate” at one point in his testimony, we do not believe that his use of that word negates his other testimony that he immediately identified the object as contraband. Moreover, during cross-examination, the sergeant explained that he might have used the word “manipulate” incorrectly and stood up and showed the trial court how he performed the pat-down.

Under Hughes, this Court must accept the trial court’s factual findings unless clearly erroneous, and we must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. Based on that standard of review, we find ample evidence to support the trial court’s determination that the sergeant did not manipulate the contraband and that he immediately recognized it as such upon putting pressure on the area of May’s front pants pocket. Specifically, the trial court was able to view and assess how the sergeant demonstrated the pat-down. Since the trial judge had the benefit of observing this demonstration, and we do not, we must defer to the judge’s implicit finding that the sergeant’s demonstration provided credible support for his earlier testimony that he immediately identified the object as contraband. See Nelson v. State, 317 Ga. App. 527, 532, n.5 (731 SE2d 770) (2012).

Accordingly, we affirm the trial court’s denial of the motion to suppress.

Judgment affirmed.

Doyle, C. J., Andrews, P. J., Boggs and Ray, JJ, concur. Barnes, P. J., and Phipps, P. J., dissent.

BAENES, Presiding Judge,

dissenting.

I disagree with the majority’s decision to affirm the trial court’s finding that the officer in this case was entitled to reach into May’s pocket and pull out contraband after ostensibly patting him down for weapons. Therefore, I respectfully dissent from the majority opinion.

“The right of the people to be secure in their persons .. . against unreasonable searches and seizures, shall not be violated.” U. S. Constitution, Fourth Amendment. That right is echoed in the Georgia Constitution, Ga. Const, of 1983, Art. I, Sec. I, Par. XIII. Our judicial system has sought to clarify the conditions under which governmental intrusion is allowed into our homes and our persons and when it is not. We have defined the three tiers of police-citizen encounters, and within those tiers, we have outlined the conditions under which an officer may lawfully put his hands on a citizen, absent a warrant or exigent circumstances. “[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.” Arizona v. Johnson, 555 U. S. 323, 326-327 (129 SCt 781, 172 LE2d 694) (2009). If the officer feels an object whose contour or mass makes its identity apparent as a weapon or contraband, “[a] warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” Minnesota v. Dickerson, 508 U. S. 366, 375-376 (II) (B) (113 SCt 2130, 124 LE2d 334) (1993).

The key is whether the incriminating character of the object in the suspect’s clothes was immediately apparent to the officer. In Dickerson, the Court agreed with the Minnesota Supreme Court’s conclusion that the police officer “overstepped the bounds of the ‘strictly circumscribed’ search for weapons allowed under [Terry v. Ohio, 392 U. S. 1, 26 (88 SCt 1868, 20 LE2d 889) (1968)],” when “the officer determined that the lump [of cocaine] was contraband only after squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket — a pocket which the officer already knew contained no weapon.” (Citation and punctuation omitted.) Dickerson, 508 U. S. at 378 (III).

As in Dickerson, in this case, the officer’s testimony at the motions hearing establishes that he did not immediately identify the small amount of methamphetamine in May’s pocket when he patted May down for weapons. The trial court’s finding otherwise — that “the item’s contour and mass, without being otherwise manipulated, made its identity as contraband immediately apparent to [the officer] given his training and expertise” — is simply not supported by the officer’s testimony and the stipulations of fact agreed to hy the prosecution and defense.

The parties stipulated that the amount of methamphetamine in May’s pocket “weighed less than one gram,” and I take judicial notice of the fact that an ounce contains 28 grams. The officer testified that he felt “a little small bulge in [May’s] right front pocket” and could tell as he “manipulated” the bulge with his open hand that it was a baggie with a hard substance in it. That is not a seizure supported by the “plain feel” doctrine and was not authorized by our federal or Georgia Constitution.

Decided November 20, 2015

David G. Williams, Jr., Philip E. Clark, for appellant.

Layla H. Zon, District Attorney, Ronald V. McNease, Assistant District Attorney, for appellee.

The rule of law applies equally to the State and the defendant in a criminal case, and affirming a conviction for possession of a controlled substance under these circumstances erodes public trust.

Public confidence in our system of justice is of utmost importance. The uniform application of established rules of law both within and outside the context of criminal trial proceedings engenders not only the public’s faith and trust in our system of justice, but also respect for and cooperation with the law.

State v. Thackston, 289 Ga. 412, 419 (716 SE2d 517) (2011) (Benham, J., concurring in part and dissenting in part).

For these reasons, I respectfully dissent from the majority opinion affirming this conviction.

I am authorized to state that Presiding Judge Phipps joins in this opinion.

       However, at the motion hearing, May did not challenge the seizure of the glass pipe taken from his residence.

       The “plain feel” doctrine is a corollary to the “plain view” doctrine as set out in Minnesota v. Dickerson, 508 U.S. 366 (113 SCt 2130, 124 LE2d 334) (1993). State v. Cosby, 302 Ga. App. 204, 205 (690 SE2d 519) (2010).


author: Branch, Judge.

text:
    A15A0895.
    KINGDOM RETAIL GROUP, LLP v. PANDORA FRANCHISING, LLC.
    (780 SE2d 459)
   Branch, Judge.

We granted Kingdom Retail Group’s application for interlocutory appeal to review the trial court’s order transferring this case from the Superior Court of Thomas County to the Superior Court of Gwinnett County. For the reasons given below, we reverse and remand with direction.

The record shows that Pandora Franchising, LLC, is a limited liability company with its principal place of business in Columbia, Maryland. Pandora is in the business of franchising independent jewelry stores nationwide. Kingdom, based in Thomasville, Thomas County, was formed for the purpose of purchasing 28 Pandora franchises from a series of entities owned by a certain family; the record does not reveal where the family or its entities are located. When Kingdom’s attempt to purchase these franchises failed, Kingdom filed an action in tort against Pandora in the Superior Court of Thomas County, alleging that Pandora improperly interfered with Kingdom’s attempted acquisition and asserting claims of tortious interference, fraud, negligent misrepresentation, defamation, and promissory and equitable estoppel. Kingdom alleged that the “wrongful acts perpetrated by Defendant which form the basis for this Complaint occurred in Thomasville, Thomas County, Georgia.”

Pandora answered and filed a “Notice of Removal of Venue” in which it declared that under the corporate venue statute, it was entitled to remove the action to the Superior Court of Gwinnett County where it “maintains its registered office as its principal place of business in the State of Georgia.” Pandora attached to the notice a sworn declaration of the vice president of sales of Pandora’s parent corporation, in which she averred that Pandora was registered and authorized to do business in Georgia; that it was in good standing with the Secretary of State; that its registered agent was located in Gwinnett County; that it “transacts business in Gwinnett County, Georgia [,] with and through an authorized franchisee located in that County”; and that it “does not have any other principal office or principal place of business in the State of Georgia.”

The court conducted a hearing on the matter and eventually entered an order in which it held:

[T]his Court having reviewed and determined [that] the Notice [of Removal of Venue] and the facts contained therein are in compliance with [OCGA § 14-2-510 (b) (4)] for removal of venue, this Court hereby orders and directs that venue of this action be and is hereby removed and transferred to the Superior Court of Gwinnett County, Georgia.

Kingdom then sought and obtained from the Thomas County court a certificate of immediate review and timely filed its application for interlocutory review with this Court. This Court granted the application on November 6, 2014, and Kingdom timely filed a notice of appeal thereafter.

“[W]hen the trial judge conducts a hearing on a motion to dismiss or transfer for improper venue, his findings, as a trier of fact, are tested by the any evidence rule.” McLendon v. Albany Warehouse Co., 203 Ga. App. 865, 866 (1) (418 SE2d 130) (1992) (citation omitted). We review the trial court’s application of the law de novo. Ross v. Waters, 332 Ga. App. 623, 624 (1) (774 SE2d 195) (2015); HD Supply v. Garger, 299 Ga. App. 751 (683 SE2d 671) (2009).

This case first calls on us to construe the terms of the applicable statute. “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1. Nevertheless, when construing a statute, “we must presume that the General Assembly meant what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted). Thus if the language of the statute “is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (citation omitted); CPF Investments v. Fulton County Bd. of Assessors, 330 Ga. App. 744, 746 (769 SE2d 159) (2015); Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010). Where terms of art are not involved, we look to the common and customary usages of the words and their context. Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774 SE2d 688) (2015). “For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.” Id. (citation and punctuation omitted).

The Constitution of the State of Georgia provides that in all civil cases not otherwise specifically provided for, venue lies “in the county where the defendant resides; venue as to corporations, foreign and domestic, shall be as provided by law.” Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. Pandora is a foreign limited liability company, and Georgia law provides that “[f]or purposes of determining venue, the residence of a limited liability company or foreign limited liability company shall be determined in accordance with Code Section 14-2-510 as though such limited liability company or foreign limited liability company were a corporation.” OCGA § 14-11-1108 (b).

Subsection (b) of OCGA § 14-2-510 determines where domestic and foreign corporations are “deemed to reside and to be subject to venue” in this state:

(b) Each domestic corporation and each foreign corporation authorized to transact business in this state shall be deemed to reside and to be subject to venue as follows:
(1) In civil proceedings generally, in the county of this state where the corporation maintains its registered office;...
(2) In actions based on contracts, in that county in this state where the contract to be enforced was made or is to be performed, if the corporation has an office and transacts business in that county;
(3) In actions for damages because of torts, wrong, or injury done, in the county where the cause of action originated, if the corporation has an office and transacts business in that county;
(4) In actions for damages because of torts, wrong, or injury done, in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business. . . .

The plain meaning of subsection (b) shows that it applies to domestic and foreign corporations alike. Thus, it applies to determining venue for an action against Pandora, a foreign LLC. The first four subsections show that Kingdom had an option of where to file suit. See WBC Holdings v. Thornton, 213 Ga. App. 48, 49 (443 SE2d 686) (1994) (the venue provisions of the statute are cumulative). Under subsection (b) (1), Kingdom could have filed suit in Gwinnett County because that is where Pandora’s registered office is located. Subsection (b) (2) is inapplicable because it applies to claims “based on contracts,” and Kingdom filed suit in tort. Subsection (b) (3) would allow Kingdom to file suit in Thomas County if Pandora had an office and transacted business in that county, but there is no evidence in the record to that effect. Subsection (b) (4), however, allows Kingdom to file suit in Thomas County because Kingdom alleged that Pandora’s torts occurred in that county and Pandora has not challenged that assertion. In fact, the parties agree that Kingdom filed suit in Thomas County under subsection (b) (4). In other words, Kingdom filed suit in tort but did not allege that Pandora has an office or transacts business in that county such that subsection (b) (3) would apply. Subsection (b) (4) also provides, however:

... If venue is based solely on this [subsection], the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business. . . .

OCGA § 14-2-510 (b) (4). The term “principal place of business” is not defined in the statute, which leads to the dispute in this case.

Pandora contends that subsection (b) (4) refers to the defendant’s principal place of business in Georgia even if its national principal place of business is in Maryland; it further contends that it submitted factual support for the trial court’s conclusion that Pandora’s principal place of business in Georgia was in Gwinnett County, namely that its registered agent was located in Gwinnett County, that Pandora transacted business there, and that Pandora “does not have any other principal office or principal place of business in the State of Georgia.” Kingdom argues that subsection (b) (4) refers to the defendant’s national principal place of business, which for Pandora, is located in Maryland. Kingdom therefore concludes that Pandora has no right under subsection (b) (4) to transfer venue to a Gwinnett County court.

Our review of Georgia case law shows that in determining questions of residency and jurisdiction, the term “principal place of business” is used almost exclusively to refer to a single place in the world meeting a certain standard, not to a place within a state meeting that standard. See, e.g., Lima Delta Co. v. Global Aerospace, 325 Ga. App. 76-77 (752 SE2d 135) (2013) (“Global has its principal place of business in Parsippany, New Jerseyf,] and has a regional office in Atlanta. Lima Delta is a Delaware corporation whose principal place of business is Wilmington, Delaware. . . . Societe Commerciale et Industríale Katangaise [is] a mining company based in the Democratic Republic of Congo . . . whose principal place of business is in that country.”); Hyperdynamics Corp. v. Southridge Capital Mgmt., 305 Ga. App. 283, 285 II (B) (699 SE2d 456) (2010) (“Southridge Capital Management LLC [is] a Delaware limited liability company with its principal place of business in Ridgefield, Connecticut”); Lapolla Indus. v. Hess, 325 Ga. App. 256, 265 (3) (750 SE2d 467) (2013) (“Premium is a Georgia corporation with its principal place of business in Georgia”; “Lapolla is a Delaware corporation with its principal place of business in Texas”); Pratt & Whitney Canada v. Sanders, 218 Ga. App. 1, 2 (460 SE2d 94) (1995) (“PWC is a Canadian corporation with its principal place of business in Longueuil, Quebec”). One case specifically states that a company does not have its principal place of business in Georgia. Conex Freight System v. Ga. Ins. Insolvency Pool, 254 Ga. App. 92, 95 (1) (a) (561 SE2d 221) (2002) (“Conex is not a Georgia corporation and does not have its principal place of business in this state.”). Another refers to a company moving its principal place of business from Ohio to Georgia. Yukon Partners v. Lodge Keeper Group, 258 Ga. App. 1, 3, n. 2 (572 SE2d 647) (2002). We also note that a foreign limited liability company, such as Pandora, transacting business in Georgia must procure a certificate of authority to do so, and that the application requires the foreign company to set forth “[t]he address of its principal place of business.” OCGA § 14-11-702 (a) (6). And Pandora’s application lists Columbia, Maryland as its principal place of business. Finally, Black’s defines “principal place of business” as “[t]he place of a corporation’s chief executive offices, which is typically viewed as the ‘nerve center.’ ” Black’s Law Dictionary (9th ed. 2009).

Thus, without considering OCGA § 14-2-510 as a whole or the context of the use of the term “principal place of business” as used therein, it is clear that under the commonly accepted definition of the term, Pandora’s principal place of business is Maryland as Pandora admitted in a sworn affidavit: “Pandora Franchising is a limited liability company formed under the law of Maryland with its principal place of business in Columbia, Maryland.”

The language of OCGA § 14-2-510 (b) and its context does not dissuade us from this conclusion. As shown above, subsection (b) applies to both domestic and foreign corporations, which necessarily includes corporations whose principal place of business is not in Georgia, and it determines where those corporations are “deemed to reside and to be subject to venue” in this state. Subsection (b) (1) provides that one “deemed residence” of a corporation in civil cases generally is the county where the corporation maintains its registered office. Subsection (b) (3) provides another deemed residence to be the situs of the tort but only if the corporation has an office and transacts business in that county. And subsection (b) (4) provides yet another deemed residence in the county where the cause of action in tort arose. But the same subsection gives a defendant in such a case a right to remove the action “to the county in Georgia where the defendant maintains its principal place of business.”

Decided November 20, 2015

Burr & Forman, Gregory F. Harley, Ashby K. Fox, for appellant.

Jones, Cork & Miller, Robert C. Norman, Jr., Hays B. McQueen, for appellee.

Subsection (b) (4) easily could have been written to provide that a defendant could remove the case to another deemed residence as provided in the statute, most obviously, to the county where the company maintains its registered office, as provided in subsection (b) (1), or to a county where the corporation “has an office and transacts business,” as stated in subsection (b) (3). But the legislature did not do so. It used the term “principal place of business.” And we must presume that the legislature did so knowing the commonly understood meaning of the term. See Hughes v. Ga. Dept. of Corrections, 267 Ga. App. 440, 442 (1) (600 SE2d 383) (2004) (courts presume “that the legislature knows and enacts statutes with reference to the existing law”) (citation and punctuation omitted); Fair v. State, 288 Ga. 244, 256 (2) (A) (3) (702 SE2d 420) (2010). It is true that subsection (b) (4) allows a transfer to the “county in Georgia” where the defendant has its principal place of business. But read together with the remainder of the statute, we cannot conclude that the legislature meant that to mean “principal place of business in Georgia.” Rather, the plain meaning of subsection (b) (4) allows a transfer only if a defendant’s principal place of business, as defined above, is located in Georgia.

We therefore conclude as a matter of law that OCGA § 14-2-510 (b) (4) does not allow Pandora to transfer this case to Gwinnett County. The trial court therefore erred by transferring the case to Gwinnett County. The case is hereby remanded to the Superior Court of Gwinnett County with instruction to remand the case to the Superior Court of Thomas County for further proceedings.

Judgment reversed and case remanded with direction.

Andrews, P. J., concurs. Miller, J., concurs in judgment only.

       On October 14,2014, after the Thomas County court granted the certificate of immediate review and one day before Kingdom applied for interlocutory review with this Court, the case was transferred to the Superior Court of Gwinnett County where Kingdom timely filed its notice of appeal.

       Subsection (a) provides as follows: “Venue in proceedings against a corporation shall be determined in accordance with the pertinent constitutional and statutory provisions of this state in effect as of July 1, 1989, or thereafter.”

       For a foreign limited liability company, “[t]he address of the business office of the registered agent shall be the same as the address of the registered office.” OCGA § 14-11-703 (a) (2).

       This Court has previously taken judicial notice of the records required by law to he kept in the office of the Secretary of State of Georgia. Orkin Exterminating Co. v. Gilland, 130 Ga. App. 788, 789 (204 SE2d 469) (1974).


author: MCMILLIAN, Judge.

text:
    A15A0932.
    McLARENS YOUNG INTERNATIONAL, INC. v. AMERICAN SAFETY CASUALTY INSURANCE COMPANY et al.
    (780 SE2d 464)
   MCMILLIAN, Judge.

Appellant McLarens Young International, Inc. (“McLarens”) appeals from the trial court’s order denying its motion to stay arbitration and granting the motion to compel arbitration filed by appellees American Safety Casualty Insurance Company (“ASCIC”) and Excalibur Reinsurance Corporation (“Excalibur”). As more fully set forth below, we now affirm.

The underlying facts are essentially undisputed. In September 2005, McLarens and ASCIC entered into a Claims Handling Agreement (“CHA”) pursuant to which McLarens provided claims management and adjustment services for ASCIC in connection with claims or losses relating to policies of insurance ASCIC issued under a Lawyers Professional Liability Program underwritten by Professional Coverage Managers, Inc. (the “PCM Program”). McLarens’ duties under the CHA included the supervision of counsel retained to handle any litigation relating to claims submitted under ASCIC’s policies, and in return, ASCIC had a duty to cooperate with respect to the claims submitted for handling under the CHA. Pertinent here, Article 12.1 of the CHA provided that “[a] 11 matters in dispute solely between [ASCIC] and [McLarens] in relation to this Agreement, and whether arising during or after the period of this Agreement, shall be referred for arbitration in [the manner further set out therein]” (“Arbitration Provision”).

One of the claims McLarens handled under the CHA concerned a professional malpractice claim filed against ASCIC’s insureds, John Carey and the law firm of Carey and Danis, LLC (the “Carey Claim”), and other attorneys. Although it appears that the liability of the Carey defendants was minimal and that the plaintiff in that suit had indicated a willingness to settle his claim against the Carey defendants for $175,000, due to certain alleged failures of counsel representing the Carey defendants, ASCIC was ultimately required to pay the policy limits of $2 million to settle the claim.

Pursuant to a Casualty Excess Cession Reinsurance Agreement (“Reinsurance Agreement”) providing for coverage of $2 million excess $1 million for claims under the PCM program, ASCIC then sought reimbursement from Excalibur. Ultimately, Excalibur paid the claim under the Reinsurance Agreement.

On April 3, 2014, ASCIC and Excalibur sent McLarens a letter jointly demanding arbitration “pursuant to the terms of the Claims Handling Agreement between ASCIC and McLarens.” The letter specified that in the arbitration proceedings, “ASCIC/Excalibur” will seek 1) an order directing McLarens to pay ASCIC/Excalibur $2,000,000, which amount ASCIC was obligated to pay in satisfaction of the Carey Claim; and 2) an order directing McLarens to reimburse ASCIC/Excalibur for the amount of attorney fees and costs ASCIC incurred as a result of McLarens’ negligence in its oversight of the Carey Claim and attorney fees incurred in connection with the arbitration.

On April 28, 2014, McLarens notified appellees’ counsel that it could not “accede” to appellees’ arbitration demand since it “purport^] to advance claims on behalf of Excalibur” thereby placing it outside the scope of the arbitration provision in the CHA, which limits the right of arbitration to disputes solely between ASCIC and McLarens. By letter dated that same date, and apparently prior to the time that ASCIC received McLarens’ response to the arbitration demand, appellees filed a demand for arbitration against McLarens with the American Arbitration Association (“AAA”), repeating the same relief sought in the previous demand. On May 8, 2014, the AAA acknowledged receipt of the Demand for Arbitration and notified the parties of the procedures applicable to the arbitration proceedings.

On May 23, 2014, ASCIC sent another letter to McLarens in which it noted that

this is a subrogation claim that is being brought to recover the $2,000,000 that ASCIC was required to pay [as a result of the Carey Claim]. Excalibur is not asserting claims against ASCIC, nor is it asserting any claims against McLarens that differ in any respect from the single claim that ASCIC and Excalibur are jointly asserting in the arbitration[.]

The letter further advised that, although neither felt it necessary, ASCIC and Excalibur were “willing to enter into an agreement whereby ASCIC assigns its rights against McLarens to Excalibur as respects the Carey Claim.”

Five days later, McLarens filed a Motion to Stay Arbitration in the Superior Court of Fulton County based on its contention that appellees’ jointly-filed arbitration demand was outside the scope of the Arbitration Provision of the CHA since it did not concern “matters in dispute ‘solely’ between” ASCIC and McLarens in relation to the CHA. On June 17, 2014, ASCIC assigned to Excalibur the right to pursue arbitration or engage in other legal proceedings against McLarens related to the “Carey Action” (“Assignment”). McLarens refused to recognize the assignment and reasserted its position that it was not required to arbitrate with Excalibur. Appellees then filed a cross-motion to compel arbitration and a brief in response to the motion to stay. McLarens filed a brief in opposition to appellees’ cross-motion to compel arbitration, reasserting that the jointly filed demand for arbitration was ineffective because appellees sought to arbitrate matters outside the scope of the Arbitration Provision of the CHA.

Following a hearing, the trial court entered an order denying McLarens’ motion to stay arbitration and granting appellees’ cross-motion to compel arbitration based on a finding that the assignment of the “McLarens Claims” to Excalibur was valid and enforceable and, therefore, Excalibur could proceed as the sole claimant. McLarens appeals.

1. We first address McLarens’ argument that appellees’ jointly filed arbitration demand did not concern a matter in dispute “solely between” McLarens and ASCIC and thus was outside the scope of the Arbitration Provision.

Arbitration is a matter of contract, meaning that arbitrators derive their authority to resolve disputes only from the parties’ agreement. Thus, a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. The question of arbitrability, i.e., whether an agreement creates a duty for the parties to arbitrate the particular grievance, is undeniably an issue for judicial determination. Thus, we review the trial court’s order de novo, applying the ordinary rules of contract construction.

(Citations and punctuation omitted.) Brooks Peanut Co. v. Great Southern Peanut, LLC, 322 Ga. App. 801, 809 (3) (746 SE2d 272) (2013).

Although McLarens argues to the contrary, it appears that the only dispute in this case is whether McLarens is required to indemnify ASCIC for its “liability, loss, damage and expense” under the indemnification provision of the CHA to the extent those liabilities arose from or were caused by McLarens’ alleged negligent handling of the Carey Claim. Thus, there seems to be little, if any, question that McLarens would have no grounds upon which to stay the arbitration if the demand had been filed only by ASCIC.

The question then is whether the insertion of Excalibur into the arbitration proceedings changed the nature of proceedings so that the dispute was no longer between McLarens and ASCIC. Under the circumstances here, we do not believe that is the case. There is no matter in dispute between Excalibur and McLarens; rather, the dispute pertains solely to whether McLarens is required to indemnify ASCIC under the terms of the CHA, and there is no greater or lesser right to indemnification because Excalibur has been inserted into the proceedings. Pursuant to the terms of its Reinsurance Agreement with ASCIC, Excalibur is merely subrogated to any right to indemnification that ASCIC may have against McLarens under the CHA due to the negligent handling of the Carey Claim to the extent of the payment Excalibur made to ASCIC under the terms of the Reinsurance Agreement. And, as the subrogee of ASCIC, Excalibur “stands in its shoes” and can pursue any cause of action that has been assigned to it. Ga. Cas. & Surety Co. v. Woodcraft by MacDonald, Inc., 315 Ga. App. 331, 336 (1) (726 SE2d 793) (2012); Landrum v. State Farm Mut. Auto. Ins. Co., 241 Ga. App. 787, 788 (527 SE2d 637) (2000). Accordingly, Excalibur is entitled to “stand in [the] shoes” of ASCIC in the arbitration proceedings concerning the Carey Claim.

2. Alternatively, Excalibur acquired the right to participate in the arbitration proceedings under the terms of the Assignment. McLarens argues, however, that the Assignment is invalid and unenforceable because it violates the anti-assignment provisions of the CHA.

The CHA contains two anti-assignment clauses: Article 16.1, which provides “[t]his Agreement may not be assigned by any party without the prior written consent of the other parties,” and Article 17.3, which provides that neither party “may... assign... any of [its] rights, obligations or interests under this Agreement without the prior written consent of the parties.” But, under Georgia statutory and case law, unless a contract falls into one of the exceptions more fully discussed below, “once a party to the contract performs its obligations thereunder so that the contract is no longer executory, its right to enforce the other party’s liability under the contract may be assigned without the other party’s consent even if the contract contains a non-assignment clause.” Mail Concepts, Inc. v. Foote & Davies, Inc., 200 Ga. App. 778, 781 (3) (409 SE2d 567) (1991). This principle has been codified in OCGA §§ 44-12-22 and 44-12-24, which have been read to provide that “the assignment of a chose in action arising out of contract . . . [is] within the public policy of Georgia, prohibiting only the assignment of a right of action for personal torts or for injuries arising from fraud.” Villanueva v. First American Title Ins. Co., 292 Ga. 630, 632 (740 SE2d 108) (2013). See OCGA § 44-12-22 (“[e]xcept as may be otherwise provided in Title 11, all choses in action arising upon contract may be assigned so as to vest the title in the assignee”); Singer Asset Finance Co. v. CGU Life Ins. Co., 275 Ga. 328, 329 (1) (567 SE2d 9) (2002) (“contracts are generally assignable in this state even when they contain a non-assignment clause”).

Georgia law is consistent with the Restatement (Second) of Contracts, which provides that “[u]nless the circumstances indicate the contrary, a contract term prohibiting assignment of‘the contract’ [such as that contained in Article 16.1 of the CHA] bars only the delegation to an assignee of the performance by the assignor of a duty or condition.” Restatement (Second) of Contracts § 322 (1) (1981). And unless a different intention is shown, “[a] contract term prohibiting assignment of rights under the contract [such as contained in Article 17.3 of the CHA] does not forbid assignment of a right to damages for breach of the whole contract or a right arising out of the assignor’s due performance of his entire obligation[.]” Restatement (Second) of Contracts § 322 (2) (a) (1981).

Applying these principles, we look first then to whether the contract had been performed or executed at the time of the assignment. Pursuant to OCGA § 13-1-2 (a) & (b), “[a]n executed contract is one in which all the parties thereto have performed all the obligations which they have originally assumed” while “[a] n executory contract is one in which something remains to be done by one or more parties.” Article III of the CHA sets out McLarens’ performance obligations under the agreement, which, as detailed in the CHA, relate to the provision of “claim management and adjustment services for [ASCIC] in connection with claims or losses relating to [certain specified] policies of insurance” in return for which ASCIC would pay an agreed-upon fee. At the time ASCIC assigned the Carey Claim to Excalibur on June 17, 2014, all open files had been transferred back to ASCIC, and all claim management and adjustment services had been performed and the agreed-upon fees had been paid. Accordingly, no claims handling services remained to be performed at the time of the assignment.

McLarens argues, however, that the CHA had not been fully executed at the time of the assignment because the mutual obligation to indemnify and arbitrate remained to be performed. But we do not believe that these obligations render the contract executory when all performance obligations have been fulfilled by the parties and the only matter remaining for determination is whether one party must indemnify the other because of an alleged breach of the contract. See Decatur North Assoc. v. Builders Glass, 180 Ga. App. 862, 865-66 (2) (350 SE2d 795) (1986) (contract assignable when only contractual liability remaining was for express warranty of completed work); see also Missouri Bank & Trust Co. v. Gas-Mart Dev. Co., Inc., 130 P3d 128 (Kan. App. 2006) (assignment of arbitration claims for payments due under the completed contract not prohibited by nonassignment provision in the contract).

McLarens further argues that the CHA was “inherently not assignable” because it is a contract for services and because the Assignment “materially affect[s] the value” of the agreement. Although it is true there is a limited class of cases in Georgia that cannot be assigned, even if the contract has been fully executed and even if the contract does not contain a provision precluding assignment, the record shows that McLarens did not raise this argument below. Moreover, although McLarens argues in its reply brief that the argument was encompassed within its general argument vigorously challenging the assignability of the CHA and thus it should be permitted to raise this specific argument for the first time on appeal, soe Marvel Enterprises, Inc. v. World Wrestling Federation Entertainment, Inc., 271 Ga. App. 607, 610 (1) (610 SE2d 583) (2005), we do not believe this Court should make these initial determinations concerning whether the CHA involved personalized services or whether the Assignment would result in a material reduction in value of the CHA without appellees having an opportunity to present evidence or argument on these issues in the court below, and without the trial court having an opportunity to rule on these issues. Accordingly, we decline to consider McLarens’ argument because it was not raised below.

Decided November 20, 2015.

Hawkins, Parnell, Thackston & Young, Christine L. Mast, for appellant.

Lokey, Mobley & Doyle, Kevin A. Doyle, for appellees.

3. In light of our holdings above, we need not address McLarens’ remaining arguments.

Judgment affirmed.

Barnes, P. J., concurs. Ray, J., concurs fully in Division 1 and concurs in judgment only as to Division 2.

       The arbitration demand was actually received by the American Arbitration Association on April 29, 2014.

       The trial court granted McLarens’ motion for a temporary restraining order and/or preliminary injunction to toll any pending deadlines relating to the arbitration proceedings until 30 days after the time for filing an appeal had passed or a final appellate ruling on the denial of the motion to stay/grant of the motion to compel arbitration has been issued.

       Pursuant to Article 13.1: “Each party agrees to indemnify, defend and hold harmless the other parties,... from and against any and all liability, loss, damage or expense... to the extent arising from or caused by any wrongful act or omission, of the other party and/or its officers, agents or employees.”

       Under the subrogation clause of the Reinsurance Agreement, “[ASCIC] will credit [Excalibur] with any reimbursement obtained or recovery made by [ASCIC], less the actual cost... of obtaining such reimbursement or making such recovery, on account of claims and settlements involving reinsurance hereunder. [ASCIC] agrees to enforce its rights to subrogation relating to any loss, a part of which loss was sustained by [Excalibur], and to prosecute all claims arising out of such rights.”

       We note that this Court’s opinion in Mingledorff’s, Inc. v. Hicks, 133 Ga. App. 27 (209 SE2d 661) (1974) seems to offer an incomplete, or possibly erroneous, definition of “executory” as the terms “executory” and “executed” appear to be mutually exclusive. However, as noted in Mail Concepts, 200 Ga. App. at 781 (3), the Court in Mingledorff appears to indicate that the agreement at issue remained at least in part executory.

       McLarens argues that, in fact, the CHAremained in full force and effect at the time of the Assignment because the parties had not terminated the CHA in accordance with Article XV, which requires written notice of termination. However, McLarens did not raise this argument below, and appellees stated at oral argument that they had no opportunity to present evidence that would have shown that the CHA had been effectively terminated for other reasons. Accordingly, “[w]e will not consider [McLarens’] additional argument [ ] ... that [was] neither raised nor ruled upon in the court below, given that we do not apply a ‘wrong for any reason’ rule in evaluating an order on appeal.” Gwinnett County v. Old Peachtree Partners, LLC, 329 Ga. App. 540, 549 (1) (d) (764 SE2d 193) (2014). See Nebo Ventures, LLC v. Novapro Risk Solutions, L.P., 324 Ga. App. 836, 848 (4) (752 SE2d 18) (2013) (“we do not think an appellate court properly ought to consider whether the trial court was ‘wrong for any reason’ ”) (citation and punctuation omitted).

       See Decatur North Assoc., 180 Ga. App. at 865 (2) (“certain classes of contracts are inherently non-assignable in their character, such as promises to marry, or engagements for
        personal services, requiring skill, science, or peculiar obligations”) (emphasis in original); Restatement (Second) of Contracts, § 317 (2) (a) (1981) (contracts should not be assigned when “the substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligor, or materially increase the burden or risk imposed on him by his contract, or materially impair his chance of obtaining return performance, or materially reduce its value to him”). For example, in Singer Asset Finance, 275 Ga. 328, our Supreme Court upheld the nonassignment clause in a fully executed structured settlement agreement because, under the facts of that case, the assignment of future payments would result in a material reduction in value of the contract. Id. at 329. See also Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 464-65 (4) (585 SE2d 643) (2003) (applying Singer to hold contract not assignable whether executory or not if that transfer would materially reduce the value of the contract to the nonassigning party).

       See supra note 6.


text:
    A15A0970.
    THE BEST JEWELRY MANUFACTURING COMPANY, INC. et al. v. REED ELSEVIER INC.
    (780 SE2d 689)
   Branch, Judge.

In 2010, The Best Jewelry Manufacturing Company, Inc. (“plaintiff”) filed this class action challenging Fulton County State Court’s adoption of an electronic filing system administered by Reed Elsevier Inc., d/b/a Lexis/Nexis Courtlink (“Lexis”). In its second amended complaint, filed in February 2014, plaintiff alleged inter alia that in 2008, some years after the adoption of e-filing, Lexis conspired with Fulton County to collect illegal fees and barred plaintiff from filing a motion in at least one case by means of either the e-filing system or a public access terminal purportedly available for that purpose. After Fulton County and Lexis moved to dismiss the second amended complaint, the trial court granted the motion on the grounds of sovereign immunity, in which Lexis shared, and failure to state any claim. The trial court also denied plaintiff’s motions to add the past and current clerks of Fulton County State Court as indispensable parties.

On this appeal, plaintiff asserts that the trial court erred when it granted the motion to dismiss because its second amended complaint pled facts sufficient to state claims that the e-filing and other fees imposed by Lexis on litigants were illegal, that the e-filing system denied plaintiff its right under the Georgia Constitution to access to the state’s courts, and that Lexis has committed the torts of money had and received and conversion, and conspiracy. Plaintiff also asserts that Lexis does not share in Fulton County’s sovereign immunity, that the chief clerk of Fulton County State Court is a necessary party to the suit, and that the clerk does not have judicial or official immunity. We disagree with these contentions and therefore affirm.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014) (punctuation omitted), quoting Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997). On appeal, we review a trial court’s decision to grant or deny a motion to dismiss de novo. Chandler v. Opensided MRI of Atlanta, 299 Ga. App. 145 (682 SE2d 165) (2009).

So viewed, plaintiff’s second amended complaint and the exhibits thereto, including an affidavit from counsel, alleges that under local rules taking effect in 1999, Fulton County Superior Court made certain classes of cases subject to e-filing. Effective June 1, 2006, the chief judge of Fulton County State Court issued a standing order requiring that certain types of civil cases be subject to fees “for access and electronic transmission of documents,” which were “in addition to any charges associated with” the court’s filing fees. The state court required litigants participating in these cases to enter into online subscriber agreements with the designated vendor Lexis “or use the public access terminal located at” the state court to upload filings. The state court also authorized Lexis to charge litigants fees in connection with their use of Lexis’s “File & Serve” online application. The state court then promulgated local e-filing rules that directed court clerks to reject paper filings received in e-filing cases. The Supreme Court of Georgia approved this program and its rules.

Pursuant to a written “File & Serve Agreement” with Lexis, plaintiff’s counsel became an “advanced subscriber,” defined as a user “billed for its use of File & Serve on a monthly basis . . . who is permitted to authorize [ujsers within its organization to whom File & Serve [ujser IDs shall be issued.” At the outset of the agreement appeared the following notice: “[Lexis] File & Serve does not engage in the practice of law, nor is [Lexis] File & Serve part of the court system in which your lawsuit is pending.” (Emphasis changed.) The agreement also provided that users would pay so-called “usage fees,” defined as “those fees imposed by [Lexis] for use of File & Serve”; that such fees might “vary based upon a number of factors including the State, Court, Case Type, Case Class, and features being used”; and that such fees “will be set forth on a project-specific basis and are subject to change from time to time.” Local Rule 2-105 likewise provided that an e-filing services provider “may charge registered users additional fees to deliver, access, and use the service,” and that such fees “shall be payable to [the provider] at the time of filing and are in addition to any statutory filing fees.”

After the implementation of e-filing, litigants in designated cases were required to file by one of the following means: (1) online, and thus paying the usage fees assessed by Lexis concerning those filings; (2) via the public access terminal (PAT) located in the clerk’s office, at which litigants could scan and upload documents into the e-filing system at no charge; or (3) via paper filing to the clerk, along with a prepaid administrative scanning fee. As to those litigants refusing to take advantage of either e-filing or the PAT, the state court’s Local Rule 2-115, which remained in effect throughout the period at issue, provided as follows:

[A] litigant who [a] declines or refuses to use the PATs and files paper via mail to or at the counter of the State Court of Fulton County Clerk’s Office[,] AND Pd] declines or refuses to sign an affidavit that he or she does not have access to a personal computer will be charged an administrative scanning fee as follows: $5 for the first page of the document and $1 for each additional page of that document. The Clerk’s Office will not scan said documents until the litigant has paid the fee in full and will scan and up-load the documents to [File & Serve] as time and work load allow.

As of 2014, if the clerk’s office received a mailed or hand-delivered paper pleading to litigants without a scanning fee payment, it would return the pleading with the following notice:

This document is associated with an e-filed case. Therefore, it is being returned to you to scan/upload into the LexisN exis e-file system. If you are not a LexisNexis File and Serve subscriber or you do not have internet access, there is a Public Access Terminal available in the Fulton County State Court Clerk’s Office____You may use the Public Access Terminals to scan and upload your documents at no cost to you. (Emphasis supplied.)

The second amended complaint, including counsel’s attached affidavit, also alleges that in April 2008, plaintiff’s counsel was unable to e-file a motion in a pending case as a result of being “locked out” of File & Serve for counsel’s alleged failure to pay usage fees. When counsel informed the clerk’s office that he was locked out of File & Serve and requested permission to file paper pleadings, he was told that paper pleadings would not be accepted, but that the judge’s staff “would file them electronically.” When counsel attempted to file a set of proposed jury charges a few days later, he was again denied access, although “the judge offered to file them for [counsel].” There is no allegation or evidence that counsel accepted either of these offers or that he attempted to file a paper version of the pleading with a scanning fee. In the weeks that followed, Lexis customer service representatives repeatedly told counsel that he would be unable to e-file anything, including at the PAT, because his online account was delinquent (which it was not). Plaintiff also alleges that the cost of using the PAT, which required travel to the courthouse, “far exceeds the fees to file remotely” via File & Serve; that the PAT is inconvenient to use; and that it is “not a meaningful alternative” to mail filing in that it requires clerk assistance, considerable waiting time, and is often inoperable. Plaintiff does not allege, however, that it ever actually attempted to use the PAT and was unable to do so. In fact, plaintiff’s counsel admits that he has “not previously used the PAT due to the associated logistical cost accompanying the access of the PAT, located in downtown Atlanta.”

On the basis of these factual allegations, plaintiff asserted the following causes of action and sought damages, injunctive relief, and the certification of a class against Fulton County and Lexis for (1) violations of OCGA §§ 15-5-40 (stating that no clerk shall reject a filing for the reason that the filing is on letter-sized paper), 15-6-77 (concerning filing fees), and 50-29-12 (concerning approval and monitoring of electronic media projects by the Georgia Technology Authority), as well as Uniform Superior Court Rule 1.2 (concerning a court’s power to enact rules which deviate from the Uniform Superior Court Rules); (2) a violation of plaintiff’s right of access to the courts “guaranteed by the Georgia Constitution, our Supreme Court [and] OCGA § 1-2-6 (a) (6)” (concerning a citizen’s right to appeal to the courts); and (3) conversion and money had and received as to fees collected. Plaintiff also sought punitive damages, fees, and injunctive relief as to both the lack of court access and the imposition of fees. Fulton County and Lexis later moved to dismiss the complaint, and the trial court granted the motion on three grounds: because the complaint failed to plead facts sufficient to state a claim; because plaintiff had no private right of action as to any of the wrongs alleged; and because Fulton County was entitled to sovereign immunity, which Lexis shared. This appeal followed.

1. Plaintiff first argues that it has stated a viable claim as to Lexis’s violations of OCGA §§ 15-6-77 (k) and 50-29-12 as well as Uniform Superior Court Rule 1.2. We disagree because (a) plaintiff has not succeeded in pleading facts sufficient to show violations of these statutes and rules and (b) plaintiff has no private right of action as to any of them.

(a) (i) Plaintiff argues that Lexis’s File & Serve fees violated OCGA § 15-6-77 (k), which provides: “No fees, assessments, or other charges may be assessed or collected except as authorized in this Code section or some other general law expressly providing for same.” We disagree.

As a preliminary matter, we note that the File & Serve Agreement, Local Rule 2-105, and the trial court’s standing orders in the matter all identify the File & Serve fees as “usage” fees imposed “in addition to any statutory filing fees.” OCGA § 15-6-77 (e) (5) provides, moreover, that “[njothing contained in this Code section shall be construed so as to prohibit the collection of any other costs authorized by law for postjudgment proceedings or for any other services which the clerk or the sheriff shall perform.” (Emphasis supplied.) On its face, OCGA § 15-6-77 (e) (5) thus authorizes the clerk of a superior court, or its duly appointed agent, to collect costs for “services,” which Local Rule 2-105 describes as “additional fees to deliver, access, and use the [e-filing] service.” Plaintiff’s mere assertion that the e-filing fees at issue are filing fees cannot survive Lexis’s motion to dismiss when the pleadings and exhibits in this case, including the File & Serve agreement and Local Rule 2-105, conclusively show that they are usage fees. See Benedict v. State Farm Bank, FSB, 309 Ga. App. 133, 134 (1) (709 SE2d 314) (2011) (dismissal of a claim under OCGA § 9-11-12 (b) (6) is appropriate where the allegations of the complaint “ ‘disclose with certainty’ that no set of facts consistent with the allegations could be proved that would entitle the plaintiff to the relief he seeks”) (citation omitted).

Plaintiff seeks to forestall this conclusion by citing Cotton v. Med-Cor Health Information Solutions, 221 Ga. App. 609 (472 SE2d 92) (1996), in which we reversed a grant of a motion to dismiss a complaint alleging that a hospital had violated OCGA § 31-33-3 (a), which imposes “reasonable costs of copying and mailing [a] patient’s [medical] record” on the party requesting the record. In Cotton, however, the records at issue were in the custody of the hospital, and the statute itself placed responsibility for providing copies to patients on the hospital. Id. at 610. By contrast, neither the court clerks nor Lexis have any responsibility for preparing or delivering a party’s filings to the courthouse, and the usage fees associated with the e-filing service do not amount to a filing fee. Further, plaintiff’s counsel has averred that the judge or his staff twice offered to file papers electronically for him, but there is no allegation or evidence that counsel accepted either of these offers. For all these reasons, plaintiff has not pled facts sufficient to establish a violation of OCGA § 15-6-77 (k).

(ii) Plaintiffs also argue that Fulton County State Court’s failure to obtain approval from and submit progress reports to the Georgia Technology Authority amounts to a violation of OCGA § 50-29-12. We disagree.

OCGA § 50-29-12 provides in relevant part:

(a) The General Assembly desires to promote economic development and efficient delivery of government services by encouraging state governmental agencies and private sector entities to conduct their business and transactions using electronic media.
(b) All state agencies, authorities, and boards are authorized to establish pilot projects, which are to serve as models for the application of technology such as electronic signatures, through public and private partnerships with private companies providing such technology related services. Such pilot projects shall be approved by the Georgia Technology Authority. . . . Any private partner chosen for these pilot projects may establish user fees to pay for the cost of these services so that no state funds would be required.
(c) State agencies establishing pilot projects shall submit quarterly progress reports on such projects to the Georgia Technology Authority. The authority shall monitor the success of such pilot projects and provide technical assistance to the extent that resources of the authority are available.

(Emphasis supplied.)

As a preliminary matter, we note that OCGA § 50-29-12 not only establishes a policy of encouraging projects such as the e-filing system at issue here, but also explicitly authorizes a private party such as Lexis to “establish user fees to pay for the cost of [the] services so that no state [or county] funds would be required.” Id. at (b). But even assuming that this e-filing system amounted to a “pilot project,” the statute applies only to “state agencies,” and we have seen no authority suggesting that Fulton County State Court is such an entity for purposes of this or a related statute. On the contrary, the judicial branch of state government has “the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities.” McCorkle v. Judges of Superior Court of Chatham County, 260 Ga. 315, 316 (392 SE2d 707) (1990) (citations and punctuation omitted). The Fulton County State Court had “the inherent power to determine and compel payment of those sums of money” it deemed “reasonable and necessary to carry out its mandated responsibilities,” McCorkle, 260 Ga. at 316, and such a determination is reviewable only, if at all, by means of a mandamus or protest action. See id. at 317. Thus plaintiff could not sue the court clerk, and cannot pursue Lexis on this appeal, under a theory that either of them is an agent of the state. See id. (dismissing appeal from superior court’s certificate authorizing expenses to be paid from the county treasury).

(iii) Plaintiff also argues that the e-filing system established by local rule violates Uniform Superior Court Rule 1.2 (B) in that the system authorizes defendants to collect e-filing fees, which plaintiff characterizes as “illegal.” We disagree.

Rule 1.2 (B) provides that after the expiration of local rules in December 2010,

... courts may continue to maintain practices and standing orders to regulate the internal processes of the court in matters which are not susceptible to uniformity, which relate only to internal procedure and which do not affect the rights of any party substantially or materially, either to unreasonably delay or deny such rights. . . .

Subsection (E) of the same rule provides that “courts may promulgate standing orders as to matters not addressed by these uniform rules and which are not inconsistent with a uniform rule,” including “orders governing electronic filing,” as long as “actual notice” of such orders is “provided to all parties [.]”

Rule 1.2 clearly authorizes courts to promulgate “orders governing electronic filing” such as the File & Serve system and fees at issue here. Further, plaintiff’s counsel’s own affidavit shows that the state court, not Lexis, maintained both the PAT, which the court offered free of charge as an alternative to e-filing, as well as paper filing, which required a scanning fee. For both of these reasons, plaintiff has failed to plead any violation of Rule 1.2 by Lexis. See Lumpkin v. Johnson, 270 Ga. 392, 393-395 (1), (2) (509 SE2d 621) (1998) (dismissing murder defendant’s petition under Rule 1.2 (B) to assign a related civil action to the same judge presiding over the murder prosecution; there was “no Rule from which the case assignment method adopted by the judges deviates in any substantive manner,” and the chief judge’s method was consistent with his “discretionary authority ... to assign a case to a specific trial judge”).

(b) Even assuming, moreover, that plaintiff had successfully pled a violation of any of the above statutes or rules, plaintiff has not shown that it is entitled to a private right of action for damages arising from any such alleged violation.

OCGA § 51-1-6 provides: “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” On its face, this statute authorizes suit only when there has been an “alleged breach of a legal duty,” whether intentional or negligent, “with some ascertainable standard of conduct.” Wells Fargo Bank v. Jenkins, 293 Ga. 162, 164 (744 SE2d 686) (2013) (citations omitted). But “ ‘it is well settled that violating statutes and regulations does not automatically give rise to a civil cause of action by an individual claiming to have been injured from a violation thereof.’ ” State Farm Mut. Auto. Ins. v. Hernandez Auto Painting and Body Works, 312 Ga. App. 756, 761 (2) (719 SE2d 597) (2011), quoting Govea v. City of Norcross, 271 Ga. App. 36, 41 (1) (608 SE2d 677) (2004). “Rather, the statutory text must expressly provide a private cause of action.” State Farm, 312 Ga. App. at 761 (2); see also Anthony v. American Gen. Financial Svcs., 287 Ga. 448, 455 (2) (697 SE2d 166) (2010) (even the violation of a criminal statute “ ‘does not create a civil cause of action for damages in favor of the victim or anyone else,’ ” quoting Murphy v. Bajjani, 282 Ga. 197, 201 (2) (647 SE2d 54) (2007) (emphasis omitted)).

None of the statutes or rules cited by plaintiff provides a private cause of action for damages arising from any violation of the respective statute or rule. It follows that plaintiff cannot maintain such a cause of action in this suit and that the trial court did not err when it dismissed this portion of the second amended complaint.

2. Plaintiff also argues that the combination of Lexis’s e-filing and other fees and its “prohibition” on paper filing created an “unreasonable barrier” on plaintiff’s right to access to the courts guaranteed by Art. I, Sec. I, Par. XII of the Georgia Constitution as well as OCGA § 1-2-6 (a) (6). We disagree.

Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983 provides that “[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” OCGA § 1-2-6 (a) (6) likewise provides that “[t]he rights of citizens include... [t]he right to appeal to the courts [.]” The trial court concluded that plaintiff had failed to state a claim under this paragraph of the Georgia Constitution.

The Supreme Court of Georgia has recently repeated that “Art. I, Sec. I, Par. XII was never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representation by counsel.” Smith v. Baptiste, 287 Ga. 23, 24 (1) (694 SE2d 83) (2010), citing Couch v. Parker, 280 Ga. 580, 581 (1) (630 SE2d 364) (2006); see also Santana v. Ga. Power Co., 269 Ga. 127, 129 (4) (498 SE2d 521) (1998) (Art. I, Sec. I, Par. XII “is a ‘right of choice’ between self-representation and representation by counsel provision, and not an ‘access to the courts’ provision”) (citations and punctuation omitted); State of Ga. v. Moseley, 263 Ga. 680, 682 (3) (436 SE2d 632) (1993); Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 412-413 (2), (3) (321 SE2d 330) (1984); Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484 (198 SE2d 144) (1973).

As our Supreme Court has also noted, these authorities establish that “there is no express constitutional ‘right of access to the courts’ under the Georgia Constitution.” Couch, 280 Ga. at 581 (1). Nor is this Court authorized to create or construe an “implied” right of access to the courts in the absence of Georgia authority establishing such a right. See id. (declining to find that plaintiffs could claim that a right of access to the courts was implicated by their efforts to seek an administrative appeal). Further, any claim that the e-filing fees collected by Lexis were so “unreasonable” as to deprive plaintiff of court access is a legal conclusion that cannot by itself save the complaint from dismissal. See Northway v. Allen, 291 Ga. 227, 229-230 (728 SE2d 624) (2012) (reversing denial of motion to dismiss when petition to remove mayor alleged only that a mayor had refused to resign and had not alleged other facts sufficient to show that the mayor had abused his powers).

For all these reasons, the trial court did not err when it granted the motion to dismiss plaintiff’s claims under the Georgia Constitution and OCGA § 1-2-6 (a) (6).

3. Plaintiff also asserts that it has stated viable claims for the common-law torts of conversion and money had and received as well as civil conspiracy. We disagree.

(a) The second amended complaint alleges that the state court and Lexis have and “will continue to convert to their own use sums unlawfully collected from [pjlaintiff and the Class pursuant to the e-filing scheme,” and also that the court and Lexis are “indebted to [pjlaintiff and the Class ... for money had and received to be paid... as civil restitution, a refund, and[/]or damages.” But plaintiff has not argued on appeal that these common-law claims have any basis other than the alleged statutory violations discussed and rejected above. Further, a party cannot survive a motion to dismiss merely by recasting alleged statutory or constitutional violations as torts. See Troncalli v. Jones, 237 Ga. App. 10, 12-13 (1) (514 SE2d 478) (1999) (reversing jury verdict as to civil stalking claim because there is no cause of action for stalking simply because a criminal statute prohibits it); Rolleston v. Huie, 198 Ga. App. 49, 50 (2) (400 SE2d 349) (1990) (no tort remedy available under OCGA § 16-8-16 for the allegedly unlawful attempt to disseminate information tending to impair appellant’s business).

(b) A claim of civil conspiracy requires a pleading of facts showing that “two or more persons, acting in concert, engaged in conduct that constitutes a tort.” Mustaqeem-Graydon v. SunTrust Bank, 258 Ga. App. 200, 207 (6) (573 SE2d 455) (2002) (citation omitted). “Absent the underlying tort, there can be no liability for civil conspiracy.” Id. (citation and punctuation omitted). Because plaintiff has not pled facts establishing any common-law tort, its claim for civil conspiracy must also fail. See id. (affirming grant of summary judgment as to claim for conspiracy to defraud when underlying fraud claim failed).

Decided November 20, 2015

Steven J. Newton, Shuli L. Green; Hurt & Stolz, James W. Hurt, Jr., Irwin W. Stolz, Jr., for appellants.

Holland & Knight, Cynthia G. Burnside, Vernon M. Strickland, for appellees.

Kaye W. Burrell, Lanna R. Hill, Kristen B. Williams, amici curiae.

4. In light of our determination that plaintiff has failed to state a claim for any of its causes of action, we need not reach the questions whether Lexis should have the benefit of Fulton County’s sovereign immunity from suit and whether various Fulton County clerks are indispensable parties to this action.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       The lengthy history of this suit prior to the filing of second amended complaint, including prior proceedings in both state and federal court, is not relevant to the issues before us. We note only that the Northern District of Georgia dismissed plaintiff’s federal causes of action for failure to state any claim.

       Plaintiff does not contest the grant of the motion to dismiss as to Fulton County.

       See Hendon Properties, LLC v. Cinema Dev., LLC, 275 Ga. App. 434, 435 (620 SE2d 644) (2005) (“Although considering matters outside the pleadings generally converts a motion to dismiss into a motion for summary judgment, a trial court may properly consider exhibits attached to and incorporated in the pleadings in considering a motion to dismiss for failure to state a claim for relief.”) (footnotes omitted).

       E-filing usage fees ranged from $7 to $12 per filing, depending on the case type, with Lexis keeping all of these fees.

       The second amended complaint alleges that although the state court’s local e-filing rules “have sunset [provisions] and were never made permanent,” and although they have not heen in effect since January 2011, the state court “continues to enforce the e-filing rules by rejecting paper filings mailed to the Clerk’s office and forcing all litigants to file all pleadings via File and Serve.”

       Plaintiff has not challenged the trial court’s grant of the motion to dismiss as to Fulton County and has abandoned its claim that the court clerk violated OCGA § 15-5-40. We need only reach the question of Lexis’s sovereign immunity, moreover, if we find that plaintiff has successfully pled one or more claims, which it has not.

       The availability of paper filing, pursuant to the payment of a scanning fee, also supports our determination that the e-filing fee was for scanning, not filing.

        Cotton is also physical precedent only, which means that it is not properly cited as binding precedent. See Court of Appeals Rule 33 (a).

       The Court of Appeals has jurisdiction over a question involving the construction of the Georgia Constitution only if a trial court has “specifically or directly pass[ed] upon” the application of “unquestioned and unambiguous provisions of the [state] Constitution to a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States.” City of Decatur v. DeKalb County, 284 Ga. 434, 436 (2) (668 SE2d 247) (2008), citing 1983 Ga. Const., Art. VI, Sec. VI, Par. II.

       Although the second amended complaint does not include a separate conspiracy count, it does allege that the state court and Lexis “conspired” to make e-filing mandatory, and the trial court ruled on the viability of that claim.