CopyCited 62 times | Published | Supreme Court of Georgia | Jun 28, 2010 | 287 Ga. 448, 2010 Fulton County D. Rep. 2051
...ourt four questions of Georgia law relating to a lawsuit filed by Terry and Sarah Anthony *168 in federal court to recover for notary fees charged by American General Financial Services that allegedly exceeded the statutory maximum permitted by OCGA §
45-17-11(b)....
...According to their complaint, the Anthonys refinanced a mortgage loan with American General in 2002, executing a standard loan agreement that specified certain fees required as part of the transaction, including a $350 "Notary Fee." [1] Although the agreement stated that the fees were "reasonable and necessary," OCGA §
45-17-11(b) sets the maximum lawful fee for any notarial service at $4. OCGA §
45-17-11(d) requires that the person requesting a notarial act be informed of the statutory fee permitted before performance of the act, but the Anthonys allegedly received no such notice and American General collected the $350 fee. In 2007, the Anthonys filed suit against American General in the federal district court for the Northern District of Georgia, asserting a cause of action under OCGA §
45-17-11, along with claims for breach of contract, fraud, and money had and received....
...The Eleventh Circuit then certified its four questions to this Court, which we will address in order. 1. The first certified question asks, "[i]s a corporation employing notaries public to help facilitate its lending practices: A) subject directly to [OCGA] section
45-17-11; or B) vicariously liable for violations of section
45-17-11 by its notary employees?" The answer to both parts of that question is no, although a corporation may be liable as a party to or participant in a violation of the statute by a notary. (a) Subsection (a) of OCGA §
45-17-11 sets forth "[t]he fees of notaries public " as $2.00 per specified act....
...inally, subsection (d) states that " [a] notary public shall inform the person requesting any notarial act, prior to performing the act, the fees permitted for each act." Given this statutory text, it is clear that the General Assembly intended OCGA §
45-17-11 to protect consumers of notarial services by establishing the maximum fee that a notary can charge and by requiring notification to consumers of the maximum fee....
...e certification of a copy."). We therefore answer the first part of the first certified question "no": under the plain and unambiguous language of Georgia's notary statute, corporations employing notaries *169 public are not subject directly to OCGA §
45-17-11....
...693, 695,
681 S.E.2d 116 (2009) ("`[W]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.'" (citation omitted)). The dissent reaches the opposite conclusion by asserting that "it would defeat the clear intent of the Legislature in enacting OCGA §
45-17-11 not to hold American General directly accountable under the statute for a violation thereof." Dissenting Op. at 176. However, as shown above, the text of OCGA §
45-17-11 runs squarely against the dissent's view that its prohibitions apply directly to anyone other than notaries, and the dissent offers no other source for its conclusion regarding legislative intent....
...essed in that legislation much less read into a statute a policy that contradicts the text of the law and is derived without citation to any other source. (b) Concluding that corporations employing notaries public are not subject directly to OCGA §
45-17-11 does not end the analysis, however, because even when a statute directly applies to one person, others may become liable through other well-established legal principles....
...[2] Because no compelling reason has been presented for this Court to overrule May v. Jones , the second part of the first certified question must also be answered no. (c) Thus, a corporation or other non-notary may not be directly liable for violations of OCGA §
45-17-11, and a corporation or other employer may not be vicariously liable for violations committed by an employee notary....
...here was evidence it directed its notary employee to "notarize documents without actually witnessing the signature or talking to the signor"). For these reasons, although a corporation cannot be directly or vicariously liable for a violation of OCGA §
45-17-11, it still may be liable if it procures or otherwise qualifies as a party to or participant in such a violation by a notary....
...We leave it to the federal court to apply this holding in determining whether the Anthonys' complaint states a claim. 2. The second question posed by the Eleventh Circuit is whether, "[i]f a corporation employing notaries public is subject to [OCGA] section
45-17-11, does a private civil cause of action arise under that section to recover notarial fees paid in excess of, and without notice of, the statutorily-prescribed maximum notary fee?" The answer is clearly no....
...Assembly to have made its enforcement by criminal sanctions directly applicable to corporations or other non-notaries), that policy in itself cannot support a private civil cause of action, as there is absolutely "nothing in the provisions of" OCGA §
45-17-11, Murphy, 282 Ga....
...counsels against deviating from our established precedent to find new implied civil causes of action. (d) For these reasons, we answer the second certified question no: a private civil cause of action may not be implied to remedy a violation of OCGA §
45-17-11....
...and
51-1-8 or in Title 13"). We express no opinion on the viability of such other potential theories of liability. 3. The third question certified by the Eleventh Circuit is whether, [i]f a corporation employing notaries public is subject to [OCGA] section
45-17-11, does the voluntary payment statute, [OCGA] section
13-1-13, bar contract recovery for notarial fees paid in excess of, and without notice of, the statutorily-prescribed maximum notary fee when the actual fee charged was clearly spec...
...tifice, deception, or fraudulent practice used by the other party," with some narrow exceptions not applicable here. OCGA §
13-1-13. Despite the express and affirmative statutory duty to disclose that the notary fee could not exceed $4.00, see OCGA §
45-17-11(d), the contract at issue expressly and affirmatively misrepresented that the $350 notary fee imposed was "reasonable and necessary." This unusual combination of circumstances renders the voluntary payment doctrine inapplicable, at least in the context of a motion to dismiss the complaint, as the complaint alleges sufficient "artifice, deception, or fraudulent practice" by American General (assuming the corporation is deemed liable for a violation of OCGA §
45-17-11(d) under the holding in Division 1 above). 4. The fourth and final question certified by the Eleventh Circuit is whether, [i]f a corporation employing notaries public is subject to [OCGA] section
45-17-11, is the statute of limitations tolled on fraud and money had and received claims when notarial fees are collected in excess of, and without providing the required notice of, the statutorily-prescribed maximum notary fee when the contract represents that the fees are "reasonable and necessary"? The answer is no....
...This rule is applied even where actual fraud is the gravamen of the action." Bahadori v. National Union Fire Ins. Co.,
270 Ga. 203, 205,
507 S.E.2d 467 (1998) (citations omitted). Assuming, arguendo, actual fraud in American General's failure to disclose the statutory maximum fee for notarial services as required by OCGA §
45-17-11(d) and its representation in the loan agreement that a fee dramatically exceeding this maximum was "reasonable and necessary," the Anthonys were not prevented from subsequently discovering the impropriety of these actions by simple reference to OCGA §
45-17-11 of the readily-available Georgia Code....
...HUNSTEIN, Chief Justice, concurring in part and dissenting in part. I concur in Divisions 3 and 4 of the majority opinion. However, because I would hold that a corporation employing notaries public to facilitate its lending practices may be subject directly to OCGA §
45-17-11 pursuant to a private civil cause of action, I must respectfully dissent to Divisions 1 and 2....
...See, e.g., OCGA §
45-17-2 (qualifications of notaries). However, the Legislature clearly intended to protect consumers of notarial services by, inter alia, establishing and requiring notification of a maximum fee that can be charged for a given act. See OCGA §
45-17-11....
...OCGA §
45-17-8(f) (notary's signature does not evidence knowledge of document's contents). Moreover, the fee was paid to American General; the notary public did not receive any of the funds. Under these circumstances, it would defeat the clear intent of the Legislature in enacting OCGA §
45-17-11 not to hold American General directly accountable under the statute for a violation thereof....
...of direct liability for a statutory violation is certainly appropriate where, as here, it is the employer itself that engages in the misconduct rather than the notary employee. A private civil cause of action should arise where the violation of OCGA §
45-17-11 is attributable to a corporation rather than an individual, as the statutorily-prescribed remedies of criminal prosecution [7] or administrative rebuke [8] are insufficient to promote corporate compliance therewith. Absent imposition of civil liability for a corporation's violation of the statute, the legislative intent to protect consumers of notarial services that underlies OCGA §
45-17-11 would be substantially impaired....
