*1 supra entirely any Diambrose, at 804 was inconsistent with grant summary judgment. Indeed, such that, we note if even attorney pursuant fees could be awarded to OCGA 13-6-11 on summary judgment, Appeals the Court of still erred in this case utilizing “any “Although evidence” standard. the trial court grant attorney litigation expenses fees or under OCGA 13-6-11 where it sits fact, [cit.], as trier of it is not a trier of fact aon summary judgment.” Page supra. motion for See also v. HSI Financial Svcs., supra. Compare Nodvin, Rasmussen v. A Artzner v. & A (4) (531 200) (2000) Exterminators, 242 766, (where Appeals showing Court of looked for evidence that the error). grant summary judgment to defendant was Accordingly, by awarding expenses the trial court erred litigation pursuant Ingles to OCGA 13-6-11 to on its motion for summary judgment. Transport Group American Medical Glo-An, supra; Joseph supra. judgment Camacho Millard, Assoс. v. Appeals the Court of must therefore be reversed to the extent that it grant summary judgment affirms the trial court’s in favor of Ingles respect attorney holding with to its claim for fees. Our remaining rulings Appeals. not affect the of the Court of Judgment part part. and reversed in All the Justices affirmed concur.
Decided 28, June 2010. appellant.
Michael A. Kessler, for appellee.
Adam N. Struletz, S10Q0203. ANTHONY et al. v. AMERICAN GENERAL
FINANCIAL SERVICES, INC. et al.
NAHMIAS, Justice.
The United States Court of for the Eleventh Circuit has questions Georgia relating certified to this Court four law to a by Terry Anthony lawsuit filed and Sarah in federal court to recover charged by for allegedly fees American General Financial Services that statutory permitted by exceeded the maximum OCGA (b). Anthony 45-17-11 v. American General Financial Svcs., 583 (11th 2009). F3d Cir. According complaint, Anthonys to their refinanced a mort- gage executing loan with American General in a standard loan part required specified of the transac- agreement fees certain agreement “Notary Although including stated Fee.”1 tion, $350 (b) necessary,” 45-17-11 fees were “reasonable that the service at $4.00. notarial lawful fee maximum sets the (d) requesting person requires a notarial that the performance statutory permitted before fee act be informed Anthonys allegedly *2 no such notice received act, but fee. $350 General collected American Anthonys against in the American General filed suit 2007, In asserting Georgia, District for the Northern federal district court along for with claims action under OCGA a cause of money The district had and received. contract, fraud, and breach of granted dismiss for failure motion to American General’s court (b) (6), and the Procedure claim, Fedеral Rule of Civil state a see Anthonys appealed. its four then certified The Eleventh Circuit questions address order. Court, which we will to this corporation employing “[i]s question asks, a first certified
1. The A) subject lending practices: help public to facilitate its notaries B) vicariously directly [OCGA] liable for 45-17-11; section notary employees?” by The answer its violations of section corporation may although parts question no, a of that to both by participant party of the statute to or a violation liable as a notary. (a) (a) “[t]he forth fees of OCGA 45-17-11 sets Subsection (b) provides, per specified public” as act. Subsection notaries $2.00 any notary public part, “[i]t shall not be lawful relevant performed,” greater charge than for each service sum $4.00 plus an fee for fee for the notarial act “$2.00 includes the $2.00 notary public” proof a certification and for to make attendance (c) notary public “[a] provides required. need not if Subsection (d) “[a] Finally, charge subsection states for notarial acts.” fees person requesting notary public act, notarial shall inform permitted performing prior for each act.” act, the fees Assembly statutory that the General text, it is clear Given this protect consumers of notarial services 45-17-11 to intended OCGA charge establishing and can maximum fee that requiring But the the maximum fee. to consumers of notification portions it emphasized make of the statute of each subsection discovery, proceeded brief, asserts that if the case In its American General and was “an inаdvertent term in the loan documents show that the use of this evidence would represented costs.” As the labeling “other valid fees and and that the amount error” isolated dismiss, however, allegations of the factual on a motion to before the district court matter was 1733, Pate, 12 LE2d Cooper U. S. SC complaint are taken as true. 1030) (1964). equally protected against “notary clear that consumers were public[s],” anyone else. And it is also clear that a notary public. requires applicant cannot serve as a The statute an notary public appointment as a to be an “individual” than more years legal old, “a United citizen or.. . a resident of States English language,” States,” and to read and United “able write (2) (5), making apparent and it that a being, corporate entity. a human not a must be This is also apparent from the nature of a notarial act as defined in the statute. (“ See OCGA 45-17-1 ‘Notarial act’ means act that a notary public perform includes, is authorized law without taking acknowledgment, attestation, the limitation, istration of an oath or the admin- taking upon affirmation, of a verification copy.”). affirmation, an oath or and the certification of a part We therefore answer the first of the first certified plain unambiguous language Georgia’s notary “no”: under the corporations employing subject statute, directly are not State, to OCGA 45-17-11. See Chase v. ‘[Wjhere (2009) (“ language plain of a statute is unambiguous, judicial only unnecessary construction is not but ” (citation omitted)). opposite forbidden.’ The dissent reaches the *3 by аsserting conclusion that “it would defeat the clear intent of the Legislature enacting in OCGA 45-17-11 not to hold American directly General accountable under the statute for a violation Dissenting Op. thereof.” at 462. However, above, as shown the text of squarely against OCGA 45-17-11 runs the dissent’s that view its prohibitions directly anyone apply notaries, other than and the regarding legislative dissent offers no other source its conclusion good policy directly protects intent. It be to have a that law (or others) against corporations employ consumers that notaries as themselves, well as the notaries but that is not the law that our Legislature place has enacted. It is the not of this Court to rewrite promote policies expressed legislation statutes to that are not in thаt — policy much less read into a statute a that contradicts the text of the law is derived without citation to other source. (b) Concluding corporations employing public that are subject directly analysis, not to OCGA 45-17-11 not end person, applies however, because even when a statute to one through legal prin- others ciples. become liable other well-established extending liability,
One means of in common as reflected part question, liability, second general of the certified first is vicarious or the employers
rule that are liable for the acts of their tortious employees employment. if done the course of their That doctrine very [employer] is “it no did broad: makes difference that the not [employee’s] neglect, authorize, or еven know of the act or or even if disapproved equally it, forbade he if the act be liable, he is done ” [employee’s] employment.’ Johnson, course of his Crawford 552) (1997) omitted). (citation May However, Jones, decision in this Court’s venerable 552) apply SE declined to vicarious to an acting notary public. rejected employee There the claim we that automatically employing notary public responsible bank was negligence notary, explaining or misconduct of the that [t]he notary agent reason is that the not a mere or servant public discharge bank, but is officer sworn to his properly. higher He duties is under a control that of than private principal. public He owes duties to the which must supreme Consequently be the law of his conduct. when he сapacity, longer acts in his official the bank no has control over him and his cannot direct how duties shall be done. If guilty performance
he is of misfeasance in of an official act, the not bank is liable. . . That the . also an employee agent of the bank does not alter case. sharp dividing There is still a line his between duties as agent public and his duties as a officer. When his play, service comes into his for the service is time suspended.
Id. at 311-312. argument today’s large corpora
An be world, can made that notary employee’s statutory tions from a benefit violations vicariously responsible should for those violations. Some states adopted position e.g., have See, statute. Fla. Stat. 117.05 (“The employer notary public persons aof shall be liable damages proximately notary’s involved for all caused official notary public acting scope misconduct, if the within was of his or employment notary engaged her misconduct.”). at the time the official Assembly despite
But General has done so, Georgia’s years, numerous revisions over statutes including legislature that make revisions clear understands *4 may corporations. that notaries work banks and other See OCGA (b) § (authorizing notary “any public [an] 45-17-12 who is . .. employee corporation” engage of a bank or other most notarial regarding corporation). contrary, notary acts the theTo our statutes recognize May the view this Court took in Jones notaries are public any public superior officials whose duties to the are (“No (b) employers. notary duties their See OCGA 45-17-8 shall (1) obligated perform if be a notarial he act is: act feels such For notary suspects illegal, the transaction which or is false, knows or (3) (2) a person For being coerced; For who is deceptive; person about the person doubts whether compelling demeanor causes whose the notarial requiring the transaction consequences knows (4) notary’s the compromise In situations which act; impugn or (d) (“A shall not notary . . . 45-17-8 .”); public impartiality a statement known the containing a notarial certificate execute with an intent to deceive or to be false nor notary perform defraud.”). no reason has been Court presented Because compelling first certified Jones, the the May part to overrule second must answered no. also be (c) Thus, non-notary or not be may directly other corporation and a or other violations of OCGA corporation liable for committed vicariously be liable for violations may not employer the But under well-established employee notary. principles, (or if it may other still be liable or person) participates liability, In terms of criminal this is the violations. procures notary’s a crime. 16-2-20.3 concept being See OCGA simply party Notary Notary accords the National Act of See This view with Association’s Model 2010. http://www.nationalnotary.org/userimages/2010_Model_Notary_Act.pdf. The Model Act ex theory only liability notary’s employer respondeat superior to a under the “if the tends directed, notary’s expected, encouraged, approved, employer [misconduct] or toleratеd the or, particular impliedly, by employer’s previous action in at either in the transaction least (c), involving any notary employer,” employed 13.1 one transaction Section or similar (d). notary, employer if coerced threatened the Section 13.1 The comments Section or overlooks, traditional, 13.1, explain the dissent this is not unlimited vicarious liability: office, independence [T]o reinforce the the drafters wanted to iterate fact servant, duty public is and foremost a to the that a first whose notary’s obligations employer. employer to an An cannot control overrides Consequently, always performance be to hold of official duties. it would unfair Thus, only employer employee-notary’s behavior. the Act accountable for cаused, employer employer’s imposes on the where the own actions facilitated, permitted improper or behavior. provides: (a) Every person party in the of a crime thereto concerned commission is a charged be with and convicted of commission of crime. (b) only person A in the of a crime if he: is concerned commission (1) crime; Directly commits (2) Intentionally person to commit the crime under causes some other guilty person either such circumstances that the other is not crime legal incapacity; in fact or because of (3) crime; Intentionally or abets commission of the or aids in the advises, hires, counsels, Intentionally encourages, procures or crime. another to commit the reason, charged, or not wоuld not The fact that individual liable for some directly liability. (“Any party preclude party to a did not crime who indicted, tried, convicted, punished of the crime crime for commission commit the thereto, party although person upon proof that the and that he was a crime was committed convicted, prosecuted the crime been has been claimed to have committed has not *5 provides £<[i]n Likewise, side, on the civil that person maliciously procures injury cases, all who an to be done to wrong another, whether actionable or a breach of contract, is a joint wrongdoer may subject be to an action either alone or jointly person actually injury.” with the who committed the Appeals explained Court of has ‘procure,’
“[t]he word as used in require lending perpetra- of assistance in the actual wrong acting only tion of the through done another; one, but if persuasion, advice, counsel, command, or succeeds procuring any person wrong, to commit an actionable procurer injury, singly becomes liable for the either or jointly, perpetrator.” with the actual (669 Bldg. Systems, White v. Shamrock 340, 349, n. 23 168) (2008) (citation omitted). punctuation City SE2d See also
Hawkinsville v. Wilson & Wilson,
executes certificаte performs defraud, be or an act with the intent deceive or is false, (a).5 guilty a And the of misdemeanor. Compare, express private does not an cause of action. statute e.g., contain (creating private for 46-4-160.5 cause of action retail damaged by Gas Com consumers certain violations Natural Act). petition Deregulation Thus, we look to our cases that may implied private explain arise civil cause of action from when penal of a the violation statute. 4 liability, strangely direct intertwines doctrines of vicarious and The dissent statutory concluding assuming corporation vicariously that a be hable for a violation could analysis corporation also be liable for such violation. This turns that the must then “ entirely liability head, liability ‘mastеr derivative on its because ...
vicarious ” Ga., App. 147, negligence.’ Thomas v. Center Central 286 Ga. from the servant’s Medical 409) omitted). (648 (2007) (citation Nevertheless, the dissent’s unusual 148 based on SE2d liability agree analysis, appears conclusion that a the dissent with our vicarious/direet notary’s participates procures be if it violations. liable 5 (b) currently that a second conviction for of OCGA 45-17-20 states first or Subsection performing a misdemeanor and a notarial in violation of the statute is service provision felony, transaction issue subsequent but that was added after the conviction a in this case.
455 leading Murphy Bajjani, case is 197 SE2d Ga. “ (2007). liability recognized ‘[c]ivil we There legislature strong public policy authorized where the has indicated a imposing penalty penal as a civil well as criminal ” (quoting Key App. Grant, statute.’ Id. at 238 Ga. 277) (1999)). explained, SE2d however, We further legislature “imposte] indication that the meant civil as well as penalty” provisions criminal must be found in the statute at extrapolated policy generally issue, not from the the statute appears to advance. legislature
There is no indication that
intended to
impose
civil
addition
the criminal
set
sanctions
nothing
provisions
forth in a
where,
here,
statute
in the
private
the statute creates a
cause of action in favor of the
of
victim
purportedly
penal
harmed
violation of
statute. Troncalli v. Jones, 237 Ga.
SE2d
478) (1999) (enactment
stalking
of criminal
did
statute
stalking);
create a tort of
C.,
Vancev. T.R.
(1) (a) (494
714) (1997);
Travis,
Cechman v.
(1) (414
282) (1991)
(penal
requiring
statute
report
suspected
child abuse doеs not
create
cause of
tort in
favor
child whose abuse was not
reported).
Georgia’s
While OCGA 20-2-1184 establishes
*7
public policy concerning
report timely
the need to
to the
appropriate
identity
authorities the
of
who
students
commit
proscribed
grounds,
certain
acts on school
it
not
create
damages
a civil cause
action
victim
or
of
favor of
anyone
purported
report timely.
else for
failure to
Murphy,
(emphasis supplied).
This focus on the text of the statute, rather than on the policy Appeals reflected in the statute, is consistent with Court of Murphy. decisions both before and after Thus, in Huie, Rolleston v. (400 349) App. (1990), plaintiff Ga. SE2d asserted that by prohibits the theft statute, extortion which to threats disseminate tending impair person’s information to another credit or business reputation, private a created civil cause of See 50; action. id. at (3). Appeals that, The Court of held
[although
public policy
OCGA 16-8-16 establishes the
of
nothing
provisions purports
this state,
within its
to create a
private
alleged
cause
action in
of
tort in favor of an
victim.
Accordingly,
liability
[the defendant]
of
the civil
must be
provisions
applicable
determined under the
of the tort law
provisions
inapplicable
of
criminal
state,
of this
not the
§ 16-8-16.
(emphasis supplied).
App.
Rolleston, 198 Ga.
at
County,
App.
Similarly,
288 Ga.
in Verdi v. Wilkinson
642)
plaintiff alleged
private
that a
857-858
SE2d
grave
protects
sites
arose
the statute that
cause of action
from
civil
felony maliciously
making
by
human
it a
remove
disturb
Appeals
31-21-44.
Court of
857-858;
remains. See id. at
“[tjhere
impose
legislature
intended to
held
is no indication that
sanctions set forth
in addition to
criminal
civil
‘nothing
provisions
the statute
31-21-44 because
OCGA
creates
private
purportedly
cause of
in favor of the victim
action
”
penal
Verdi,
the violation of the
statute.’
harmed
(emphasis
(quoting Murphy,
supplied)).
at 201
at 858
282 Ga.
public
Further
of the case law demonstrates that
review
penal
strong,
policy
statute,
no matter how
cannot
advanced
support
implication
private civil
that is not
cause
action
provisions
Thus,
based on the actual
relevant statute.
Murphy,
approval
Appeals cases,
cited
Court of
this Court
with
two
private
no
Cechman,
that held that
cause of action arose
Vance
§ 19-7-5,
makes
from the
it a crime
violation OCGA
Murphy,
susрected
people
report
fail to
child abuse. See
certain
This reticence to create civil throughout Georgia’s appellate penal law, as case statutes runs many again often others, which the cases cited above shown Corp. e.g., Broadcasting very strong public policies. See, Cox involved
457 127) (200 Cohn, v. 60, that, 61-62 SE2d (holding 231 Ga. criminal for the although statute created disclo- Georgia a on sure of victim’s established State’s rape identity policy create cause subject, it did not of action private damages (95 victim), of the 420 U. S. grounds, favor reversed on other 469 SC 328) Smith v. Chemtura Corp., 1029, (1975); 43 LE2d 297 Ga. App. (no (676 756) (2009) 287, 294-295 SE2d of action created private cause Chisolm v. statutes); criminal Tippens, by violation of various 289 Ga. (658 147) (2008) (violation 757, 761 SE2d App. cruelty of to children statute, 16-5-70, action); OCGA does not create a cause of private (623 686) (2005) Williams, Jastram 475, 276 SE2d Ga. 476 App. (violations §§ 16-10-24, of 16-10-26 and make which it a crime knowingly report false crime and to give police knowingly officer, do police obstruct not create Doyle private action); cause (461 Durden, 902) (1995) Dickerson Co. v. 218 428 SE2d App. Ga. (no private 16-8-15, cause of action based on violation of OCGA which makes it a crime to use the for the proceeds payment purpose real purposes); Oswald improving certain for certain other property v.American 26) (1990) Co., Nat. Can 194 Ga. (willful W-2, failure to can liability, which result in criminal provide action). create cause of
In short,
“[cjriminal statutes, express prohibitions rather than personal entitlements specify particular remedy other than civil litigation, are accordingly poor candidates for the imputation private rights action.” The criminal statutes at issue create rights favor of the general public, not just individuals their damaged by violation.
Jastram, (citations omitted). at Ga.
(b) In the law, face of this case contend Anthonys that this case is analogous to Norris v. Sigler Daisy Corp., 242) (1990). They claim that in Norris Court held that a violation criminal usury statute, gives rise to an implied civil cause of recover paid. excess interest That is a misread- of Norris. Norris ing begin with, To did not discuss of the case law regarding when of a criminal statute creates a private civil cause of Norris Instead, action. relied exclusively on two prior decisions Court looked usury to the criminal (the Norris) statutes predecessors to the statutes issue determine what interest was and thus what legal illegal interest could be recovered as a forfeiture statute expressly providing civil under for such forfeiture. Norris cited Citizens Bank &Hoyt Co., Jordan, and Croom v. SE 20 Ga. App.
458 proposition of the that “a loan violative SE the usury illegal, forfeits result that lender statute is with
criminal
principal.”
Thus, Croom and other cases have usury existing not to alter the civil forfei- the criminal statute was by creating provisions cause of action for the forfeiture ture new existing principal interest, instead to enhance the all but “by remedy adding penalty the criminal misdemeanor” forfeiture particularly Lewis, rate exorbitant. when interest was Wall 430) (1941). enacting purpose both 192 Ga. The usury penalty provisions and criminal the civil forfeiture provide generally for the forfeiture all interest statutes “was to cent, [to per per provide] that, annum. . . and which exceeded cent, per charge per than 5 such of interest exceeded more when month, it a criminal offense.” Id. became dispositive The issue in Norris was did not alter this law.
Norris
§ 7-4-18,
definition of interest contained
whether the
§ 7-4-2,
relied
could be
differed from
definition OCGA
charged a
rate of
lender had
usurious
on to determine whether the
The
ruled
it could
at
Court
interest. See 260 Ga.
272-273.
per
and thus violated
exceeded 5%
month
the interest
(a).
on
The Court then relied
See
The
imposing
strong public
supports
example
policy
civil, as
an
of when
liability
penal
See
statute.
criminal,
for
violation
well as
example,
Murphy,
is
an
but as shown
The also on Borison v. 696) (2002). however, Borison, In Court of implying apply proper a for civil causе of action did not standard penal extrapolated Instead, Norris to allow from a private statute. it charged for bail
civil action to recover excessive amounts though, unlike in Norris and the bond, 258, 257 Ga. even express upon relied, cases there is no civil forfeiture which Norris charges. remedy for such excessive bond (c) Finally, noting Assembly appears it is that the General worth judicial implied civil causes to be so concerned about the creation (a), recently that it enacted OCGA 9-2-8 which states action private right “[n]o of action arise from Act enacted shall right is after the effective date of this Code section unless such Legislative expressly provided 138, S.B. 2009-2010 Session therein.” 2010). (Ga. signed by (passed April 2010; Governor June apply pre-existing statute at issue new law would not deviating certainly against from our case, this it counsels but implied precedent action. to find new civil causes of established (d) question reasons, certified For these we answer the second remedy implied private no: civil cause of action not be contrary the dissent’s of OCGA 45-17-11. We note that precedent Murphy ignores that under- and the wealth of conclusion policy judgment position again simply that, reflects mines its supported provisions unreasonable, while not is not the actual Assembly the statute the General enacted. necessarily Anthonys
This does not mean are without any remedy, they pursue liability against civil able applicable American General under other or tort contract laws of Rolleston, See State. at 50. also (b) (S.B. above) (providing “[n]othingin subsection shall prevent any duty imposed by be being construed breach of law from theory used as the basis for a under cause recovery recognized by including, law, otherwise but limited to, recovery theories of under the law torts or contract or breach legal duties as set forth Code Sections 51-1-6 and 13”). express opinion viability 51-1-8 or in Title We no on the of such potential liability. other theories of
3. The third certified the Eleventh Circuit whether,
[i]f employing subject [OCGA] voluntary payment 45-17-11, section stat- [OCGA] recovery ute, section bar contract paid of, of, notarial fees statutorily-prescribed excess without notice
maximum fee when the actual charged clearly specified fee was in the contract and the represents contract that the fees are “reasonablе and nec- essary”?
We conclude that a claim breach of contract asserted under these particular by voluntary payment circumstances is not barred the doctrine. voluntary payment party may
Under the doctrine, a not recover payments “through ignorance made of the law or all where the artifice, misplaced facts are known and there is no confidence and no deception, practice by party,” or fraudulent used the other with some exceptions applicable Despite narrow not here. OCGA 13-1-13. the express duty statutory and affirmative that disclose the fee (d), could $4.00, not exceed see the contract at expressly affirmatively misrepresented issue notary and $350 imposed necessary.”
fee and was “reаsonable This unusual voluntary payment of combination circumstances renders the doc- inapplicable, trine at least in the context of a motion to dismiss the complaint, complaint alleges deception, as the sufficient “artifice, practice” by (assuming corpora- fraudulent American General (d) tion is deemed liable for a violation OCGA 45-17-11 under above). holding in Division Eleventh Circuit by certified final The fourth and 4. whether, is subject notaries corporation employing
[i]f limitations tolled the statute of section [OCGA] claims when notarial had and received money and fraud on without of, providing and are collected excess fees maximum of, statutorily-prescribed notice required are the fees represents fee when the contract necessary”? “reasonable and
The answer is no. plaintiff guilty a fraud [is]
“If the defendant... action, period bringing or deterred from has been debarred discovery only plaintiffs from the time limitation shall run limitation, toll the statute § 9-3-96. In order to the fraud.” OCGA not have been fraud as could fraud “must be such actual applied rule is ordinary diligence. This discovered exercise of the action.” Bahadori fraud is the gravamen even where actual 467) Co., Union Fire Ins. SE2d v. National Ga. (citations omitted). actual fraud in arguendo, Assuming, maximum fee for statutory to disclose the American General’s failure (d) its repre and required by notarial services as exceeding a fee agreement dramatically in the loan sentation Anthonys were necessary,” maximum “reasonable and was of these from subsequently discovering impropriety prevented readily- § 45-17-11 оf the actions reference to OCGA simple Thus, statute of limitation on Georgia four-year available Code. Green, Corp. McKesson claims fraud, 9-3-31; see OCGA 336) (2009), money and on claims of had 91, 96, n. Co., Ins. v. Central Baghdady received, 9-3-25; see OCGA Life tolled. 170, 171, n. 1 would not be concur, Hunstein, All Questions except answered. the Justices JJ., J., concur in part C. and Benham and who Thompson, dissent part. Justice, concurring part dissenting Chief
HUNSTEIN, part. *12 However,
I in 3 and of the majority opinion. concur Divisions I employing because would hold that corporation subject directly facilitate be to OCGA lending practices its I action, must pursuant respect- 45-17-11 civil cause dissent 1 and 2. fully Divisions performed by
The nature of a notarial act6 such that it must Chapter accordingly. individual, an and 17 Title 45 is written See, notaries). e.g., (qualifications Leg- However, clearly protect by, islature intended consumers notarial services establishing requiring alia, inter notification a maximum fee charged given that can be See Here, act. OCGA 45-17-11. agreement fee out in was set a loan drafted $350 American notary public responsible General; the was not for the content of the (f) (notary’s signature contract. OCGA 45-17-8 evidence contents). knowledge paid Moreover, of document’s the fee was notary public American General; the did not receive of the funds. circumstances, Under these it would defeat the clear intent of the Legislature enacting OCGA 45-17-11 not to hold American General accountable under the statute for a violation thereof. See Echols v. Thomas, (1995) (“[although appellate generally courts dо not construe statu- tory language unequivocal, plain judicial construction is required literally legisla- when words construed would defeat purpose”). alleged statutory Where, ture’s here, as solely results from the actions of the itself, there is no liability. issue of vicarious majority (b), Notary
As the notes Division the Model Act of provides respondeat superior liability as follows: employer any person An of a is liable to for all damages proximately person by notary’s caused that negligence, intentional law, violation of official miscon- performing during duct in a notarization the course of employment, employer expected, if the directed, encour- aged, approved, notary’s negligence, or tolerated the viola- particular law, tion оf or official misconduct either impliedly, by employer’s previous or, transaction involving any notary in at least one similar transaction employed by employer. http://www.nationalnotary.org/userimages/2010_Model_Notary_ (c).
Act.pdf, Maj. Op. explained 13-1 Thus, Section n. 2. only imposes liability 13-1, comments Act Section “the on the employer employer’s caused, where own actions facilitated, or permitted improper employer If behavior.” an would be vicari- “6 notary public perform act’ ‘Notarial means act that a is authorized law to includes, limitation, attestation, taking acknowledgment, without of an the administration affirmation, taking affirmation, upon oath or a verification an oath or and the (2). copy.” certification *13 notary’s employeе ously such circum- misconduct under its liable for statutory liability imposition direct for a stances, employer certainly appropriate itself where, here, it is the notary employee. engages in rather than the the misconduct arise the violation where A civil cause of should corporation rather than to a 45-17-11 is attributable pros- statutorily-prescribed of criminal individual, remedies as the corpo- promote rebuke8 are insufficient or administrative ecution7 imposition compliance for a of civil Absent rate therewith. legislative protect corporation’s intent to statute, violation of underlies OCGA 45-17-11 notarial services that consumers of substantially impaired. would be (A) questions Accordingly, 2 in the I would answer certified affirmative. 28, 2010.
Decided June Daughtery, Brown, L. Crawford, Fuller & Jason Crawford, Camp Brown, Trammell, Lewis, Fuller, C. & Robert James Dustin T. appellants. Trammell, Jr., for T. Bryan Powell, II, Williams, Bracken A.
Hunton & Lawrence J. appellees. Wheeler, Charlotte M. for IV, Webster, Bliss, John R. Bartholomew
David A. Charles R. Mackowiak, Anna-Elisa amici curiae. IN OF SAI HYUN LEE.
S10Y0635. THE MATTER 660) Per curiam. Respon- pursuant disciplinary is before the Court This matter (State voluntary petition Hyun Bar Sai Lee’s No. dent (b). pursuant Bar Rule 4-227 license which she filed surrender of In her guilty
petition pled 18, 2009 Lee that she on November admits violating for the in the United States District Court 28 USC 1746 Georgia, the offense Division; Atlanta Northern District performing a circumstances. See ment of a conviction Under appointing notarial service in violation felony. public who current OCGA 16-2-22 superior A version violates court of OCGA 45-17-20 (a) any provision clerk (2). of the statute is misdemeanor only revoke prosecuted the commission or (a), a first or second conviction statute. for a crime under deny subsequent reappoint certain (1).