Construed with other statutes.

- Fact that class actions were authorized for identity fraud claims under O.C.G.A. § 16-9-130(a) did not obviate the need to comply with the requirements of O.C.G.A. § 9-11-23(b), such that class certification was properly denied in a former employee's suit alleging identity fraud and other matters due to the former employer's submission of subagent license applications without employee authorization; individualized issues regarding employee signatures and authorizations predominated over common issues. Perez v. Atlanta Check Cashers, Inc., 302 Ga. App. 864, 692 S.E.2d 670 (2010).

Applicability to federal Class Action Fairness Act of 2005.

- Remand was required because a customer sought certification under O.C.G.A. § 9-11-23(b)(2) of a class of Georgia customers of a bank that purchased benefits for which the customers were ineligible. Thus, the bank failed to meet the bank's burden under the Class Action Fairness Act of 2005 and 28 U.S.C. §§ 1332(d) and 1446 to show the amount in controversy satisfied the jurisdictional requirements, and there was no other basis for jurisdiction under 28 U.S.C. § 1453. Thomas v. Bank of Am. Corp., F. Supp. 2d (M.D. Ga. Jan. 12, 2009), aff'd, 570 F.3d 1280 (11th Cir. 2009).

Class actions at law or in equity.

- Statute provides for class actions when the statute's requirements are met either at law or in equity depending upon the type of relief sought. Herring v. Ferrell, 234 Ga. 620, 216 S.E.2d 862 (1975).

Georgia insured, who had been specifically excluded from an Alabama class action, lacked standing to challenge the Alabama settlement, either in an individual capacity or a representative capacity; an injunction that was granted at the insured's' request was invalid as the insured lacked a legal right to relief and the insurers could not be held in contempt for violating the injunction. Am. Med. Sec., Inc. v. Parker, 279 Ga. 201, 612 S.E.2d 261 (2005).

Particularity required in specification of parties injured.

- When, in an action brought by the plaintiffs for themselves and other condominium unit owners against the developers, contractors, and architects for the project, the trial court was faced with a failure of plaintiffs' counsel to obey an order of the court to furnish sufficient particularity in pleading in order to allow the court to determine if only particular unit owners were injured, how those owners were injured, and to what apparent extent were those owners injured, or whether indeed an entire class had suffered damages of a determinable and specific nature, the trial court was warranted in concluding that the pleaders could prove no set of facts in support of the pleaders' claim either as a class or as individuals which would entitle the pleaders to relief. Graham v. Development Specialists, Inc., 180 Ga. App. 758, 350 S.E.2d 294 (1986).

Trial court erred in denying class certification to a facsimile machine owner who alleged a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, in the transmission of an unsolicited advertisement since the potential class included 73,500 members. Hammond v. Carnett's, Inc., 266 Ga. App. 242, 596 S.E.2d 729 (2004).

Court's discretion in determining common issues among parties.

- Trial court's decision that the landowners would not share common issues with other putative class members who voted for the amendment or did not protest the transfer fee at closing, and that litigation of the claims of other proposed class members would involve other issues not relevant to the landowners' claim, was within the trial court's discretion. Duffy v. Landings Ass'n, 254 Ga. App. 506, 563 S.E.2d 174 (2002).

Judgment failed to describe class members.

- In a class action litigation by a facsimile recipient against the sender, the trial court judgment in favor of the recipient did not comply with the statutory requirements because the judgment did not describe the members of the class; recipients who were excluded from the class had to be determined and excluded. Am. Home Servs. v. A Fast Sign Co., 322 Ga. App. 791, 747 S.E.2d 205 (2013).

Court's failure to specify conditions met.

- Despite the fact that it appeared from the record that a group of landowners raised several issues of fact common to all to support a nuisance claim, the trial court's order of certification was vacated, as the court failed to specify, either orally or in writing, whether each of the five prerequisites under O.C.G.A. § 9-11-23 was presented. Griffin Indus., Inc. v. Green, 280 Ga. App. 858, 635 S.E.2d 231 (2006).

Reliance on deposition excerpts in considering class certification motion proper.

- In considering a motion for class certification, the trial court did not err in relying upon excerpts of deposition testimony attached to the motion; after asking the plaintiff to file the depositions, the defendant had not objected below to the plaintiff's failure to do so and had made no further effort to have them added to the record before the trial court issued the certification order, and case law specifically allowed a trial court to rely on deposition excerpts filed by a party in support of a motion. Village Auto Ins. Co. v. Rush, 286 Ga. App. 688, 649 S.E.2d 862 (2007), cert. denied, 2008 Ga. LEXIS 72 (Ga. 2008).

Fraud.

- If fraud based upon oral misrepresentations, as opposed to written misrepresentations, is the gravamen of the complaint, the matter is not appropriate for class action treatment. This is so because of the necessity for individual proof of detrimental reliance. Stevens v. Thomas, 257 Ga. 645, 361 S.E.2d 800 (1987).

Addition of intervenor plaintiffs after entry of default judgment.

- In a class action, when discovery of all persons in the class is required to be made of defendant and discovery is unduly delayed by failure of the defendant to comply with an order of the court, addition to intervenor plaintiffs, after imposition of authorized sanction of default judgment, is authorized in the discretion of the trial court. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Jurisdiction of appeals in class actions brought pursuant to this section is to be determined by the nature of the relief sought and the questions raised on appeal. Herring v. Ferrell, 234 Ga. 620, 216 S.E.2d 862 (1975).

Exhaustion of administrative remedies.

- In a tax refund class action under O.C.G.A. § 48-5-380, the named attorneys satisfied the administrative exhaustion requirement for an entire class of attorneys; the named attorneys acted for the entire class pursuant to former O.C.G.A. § 9-11-23 by giving the City of Atlanta notice of the tax constitutionality claim by filing administrative and civil actions, and permitting recovery only to those attorneys with the foresight to have demanded a refund was untenable in a case such as the instant one that involved a matter of constitutional import and an unconstitutional ordinance that had been relied upon to improperly collect taxes. Barnes v. City of Atlanta, 281 Ga. 256, 637 S.E.2d 4 (2006).

Actions to validate and confirm hospital revenue anticipation certificates.

- Statutory right, created in O.C.G.A. § 31-7-81(b), of private citizens to intervene in actions to validate and confirm hospital revenue anticipation certificates does not create a statutory class action. Cheely v. State, 165 Ga. App. 755, 302 S.E.2d 435 (1983).

Attorney fees.

- Because the delay in giving the opt-out notice in the class action tax refund case was not prohibited by O.C.G.A. § 9-11-23 and did not prejudice the attorneys who were class members, requiring the attorneys to pay for the work of class counsel for the common benefit did not unduly burden the right to opt out. Barnes v. City of Atlanta, 281 Ga. 256, 637 S.E.2d 4 (2006).

Challenge to certification order untimely.

- Any challenge to the trial court's certification order was barred as untimely because, pursuant to O.C.G.A. § 9-11-23(g), if a private water system owner believed the order certifying the class was legally deficient, the owner had to file a separate appeal within 30 days after that order was entered; the owner could not wait until after entry of final judgment in the underlying case to raise such a challenge. Jones v. Forest Lake Vill. Homeowners Ass'n, 304 Ga. App. 495, 696 S.E.2d 453 (2010).

Appellate review.

- As a trial court certified a class of area residents who were evacuated after an accidental chemical release upon finding that the requirements of O.C.G.A. § 9-11-23(a) and (b)(3) were satisfied, rather than based upon a letter agreement regarding certification that the parties had previously entered into, review of the agreement was not warranted on appeal. Brenntag Mid South, Inc. v. Smart, 308 Ga. App. 899, 710 S.E.2d 569 (2011).

Cited in Strickland v. Crutcher, 229 Ga. 310, 191 S.E.2d 55 (1972); North Carolina Nat'l Bank v. Peoples Bank, 127 Ga. App. 372, 193 S.E.2d 571 (1972); Mathews v. Massell, 356 F. Supp. 291 (N.D. Ga. 1973); Anderson v. Blackmon, 232 Ga. 4, 205 S.E.2d 250 (1974); Davis v. Ben O'Callaghan Co., 238 Ga. 218, 232 S.E.2d 53 (1977); Rose Hall, Ltd. v. Holiday Inns, Inc., 146 Ga. App. 709, 247 S.E.2d 173 (1978); Hasty v. Randall, 152 Ga. App. 365, 262 S.E.2d 626 (1979); Williams v. Cox Enters., Inc., 159 Ga. App. 333, 283 S.E.2d 367 (1981); Lee v. Criterion Ins. Co., 659 F. Supp. 813 (S.D. Ga. 1987); Hooters of Augusta, Inc. v. Nicholson, 245 Ga. App. 363, 537 S.E.2d 468 (2000); Garmon v. State, 317 Ga. App. 634, 732 S.E.2d 289 (2012); Sentinel Offender Svcs., LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014); Ga. Dep't of Behavioral Health & Developmental Disabilities v. United Cerebral Palsy of Ga., Inc., 298 Ga. 779, 784 S.E.2d 781 (2016); Darling v. McLaughlin, 299 Ga. 106, 786 S.E.2d 657 (2016).

Factors as to certification.

- Factors which the trial court must take into account in determining whether to certify a class action include: the number of class members; the financial ability of the plaintiff; and whether individual questions of law or fact as between the defendant and the individual class plaintiffs would yet predominate. Ford Motor Credit Co. v. London, 175 Ga. App. 33, 332 S.E.2d 345 (1985).

Class action is inappropriate when the resolution of individual questions plays too integral a part in the determination of liability, such as a suit on behalf of hospital patients to recover damages for the hospital's alleged failure to refund overpayments made by the patients for medical expenses incurred at the hospital, since resolution would be made only by examining each patient's account. Winfrey v. Southwest Community Hosp., 184 Ga. App. 383, 361 S.E.2d 522, cert. denied, 184 Ga. App. 911, 361 S.E.2d 522 (1987).

Trial court abused the court's discretion in certifying a class without holding a hearing on a motion requesting a hearing as the court failed to comply with O.C.G.A. § 9-11-23, requiring the court to make findings of fact and conclusions of law that the prerequisites supporting class certification were met. McDonald Oil Co. v. Cianocchi, 285 Ga. App. 829, 648 S.E.2d 154 (2007).

Because the trial court erred in finding that the requirements of class certification under O.C.G.A. § 9-11-23 were moot, concluding that there was no merit to the action, the finding was reversed; further, the case was remanded based on the court's failure to satisfy the specific provisions of § 9-11-23(f)(3) and due to an improper reference to a pending motion for attorney fees under O.C.G.A. § 9-15-14 and unspecified potential conflicts of interest. Gay v. B. H. Transfer Co., 287 Ga. App. 610, 652 S.E.2d 200 (2007).

In a suit challenging private probation services, the trial court's orders conditionally certifying class actions on behalf of misdemeanor probationers were reversed and the cases remanded to the trial court for reconsideration of the class certification issues in light of the Georgia Supreme Court's opinion and its requirement that the trial court carefully consider issues of justiciability with respect to the scope of any class certified and the relief available to potential class members. Sentinel Offender Services, LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014).

Georgia Court of Appeals has acknowledged that it is sometimes necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of O.C.G.A. § 9-11-23(a) have been satisfied. Lewis v. Knology, Inc., 341 Ga. App. 86, 799 S.E.2d 247 (2017).

Former paragraph (a)(1) merely stated the rule of procedure that a class action may be brought when the right sought to be enforced is secondary; whether such a derivative right exists is a matter of substantive law. Backus v. Chilivis, 236 Ga. 500, 224 S.E.2d 370 (1976).

First issue is not merits of claim.

- In determining propriety of a class action, first issue to be resolved is not whether plaintiffs have stated a cause of action or may ultimately prevail on the merits, but whether requirements of this section have been met. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975); IBM v. Kemp, 244 Ga. App. 638, 536 S.E.2d 303 (2000).

Trial court did not abuse the court's discretion by denying class certification to the plaintiff after determining that the plaintiff was not an adequate class representative as the plaintiff lacked virtually any knowledge of the substance of the claims or the nature of the relief sought and had yielded control entirely to counsel, which findings were more than supported by the plaintiff's testimony at deposition, thus, the plaintiff failed to meet the typicality and adequacy requirements under O.C.G.A. § 9-11-23(a). Lewis v. Knology, Inc., 341 Ga. App. 86, 799 S.E.2d 247 (2017).

Common character of right to be enforced.

- Class action may be filed when character of right to be enforced is common, even though such right is neither joint, nor derivative, nor several and the object of the litigation is not the adjudication of claims which do or may affect specific property involved in the action. Burnham v. Department of Pub. Health, 349 F. Supp. 1335 (N.D. Ga. 1972), rev'd on other grounds, 503 F.2d 1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057, 95 S. Ct. 2680, 45 L. Ed. 2d 709 (1975).

Common questions involved and common relief sought.

- Statute permits class actions when the rights of the alleged class are not derivative or joint rights, but are merely common in that there are common questions of law or fact involved and common relief is sought. Georgia Inv. Co. v. Norman, 229 Ga. 160, 190 S.E.2d 48 (1972).

When common questions of law and fact predominate, action is on behalf of purchasers from a common source, and common relief is sought, a class action is authorized. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Trial court properly certified a class consisting of all similarly situated bankrupt mortgagors who had been assessed inspection and attorney fees by a mortgagee without prior notice or approval by the bankruptcy court. Common questions of law - whether the mortgagee's security agreements gave it the right to engage in the conduct at issue - predominated over individual questions, the class members were similarly situated, and the members' claims were typical as the plaintiff mortgagor alleged that the mortgagee's conduct constituted breach of contract, fraud, theft, and conversion. Liberty Lending Servs. v. Canada, 293 Ga. App. 731, 668 S.E.2d 3 (2008).

Common facts make class certification possible.

- Appellate court found that class certification was proper because common issues predominated over individual issues since the operation of a computer program concerning post-mortem interest was a common fact applicable to the entire class. UNUM Life Ins. Co. of Am. v. Crutchfield, 256 Ga. App. 582, 568 S.E.2d 767 (2002).

Trial court properly certified a group of faculty members, who were under contract, suing over the arbitrariness of the Board of Regents' differing classification of similar faculty, when there were common factual circumstances, legal issues, and factors relevant to each class member's damage claim. Bd. of Regents of the Univ. Sys. v. Rux, 260 Ga. App. 760, 580 S.E.2d 559 (2003).

As the trial court found on an undisputed record that every insurance policy issued by an insurer to a class of insureds in its credit insurance policies provided that the insurer would return the unearned premium if the debt was paid off before the policy period expired, an individual insured's claim for premiums, and the like claims of the represented class, were one and the same, and the trial court did not abuse the court's discretion in finding that the proposed class met the typicality requirement. J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372, 634 S.E.2d 123 (2006).

Commonality requirement met.

- In an action filed under the Telephone Consumer Protection Act of 1991, specifically 47 U.S.C. § 227, when the proposed class explicitly excluded all parties with whom an advertiser had any records or knowledge of having an "established business relationship," and in addition should the advertiser obtain records or knowledge of having an established business relationship with additional parties, the trial court explicitly noted that the court retained the right to modify or amend the class; thus, the trial court did not abuse the court's discretion in rejecting a claim that the proposed certified class failed to satisfy the commonality requirement under O.C.G.A. § 9-11-23(a)(2). Am. Home Servs. v. A Fast Sign Co., 287 Ga. App. 161, 651 S.E.2d 119 (2007), cert. denied, 2007 Ga. LEXIS 825 (Ga. 2007).

In a suit brought by various insureds, alleging that an insurance company and the company's related entities engaged in fraud with regard to allegedly fraudulently representing that the insureds were being provided group medical insurance coverage, the trial court did not abuse the court's discretion by certifying the insureds as a class as the reliance of the insureds was based on a uniform renewal document all received, which satisfied the commonality requirement, and differing defenses that they may have did not defeat certification since common questions of law predominated. The reviewing court was satisfied that the trial court exercised the court's discretion in ruling that the computation of individual damages would not be so complex or fact-specific so as to bar certification. Fortis Ins. Co. v. Kahn, 299 Ga. App. 319, 683 S.E.2d 4 (2009), cert. denied, No. S09C1992, 2010 Ga. LEXIS 48 (Ga. 2010).

Property owners filed a class action alleging that a county had improperly recalculated property taxes without affording taxpayers the notice required by O.C.G.A. § 48-5-306 and the opportunity to appeal as provided in O.C.G.A. § 48-5-311. Since the class of taxpayers was certified solely to consider a common procedural issue - whether the county had to provide class members with statutory notice of and the right to appeal the recalculations - the trial court properly found commonality under O.C.G.A. § 9-11-23(a)(2). Fulton County Bd. of Tax Assessors v. Marani, 299 Ga. App. 580, 683 S.E.2d 136 (2009), cert. denied, No. S09C2072, 2010 Ga. LEXIS 18 (Ga. 2010).

Commonality requirement not met.

- Trial court's grant of class certification was not authorized since the court erred by determining that New York law applied to the fraud and contract claims of all potential class members. IBM v. Kemp, 244 Ga. App. 638, 536 S.E.2d 303 (2000).

Trial court did not err in denying a motion for class certification relying on the ground that the commonality requirement of Georgia's class action statute, O.C.G.A. § 9-11-23, had not been met; federal regulations regarding the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), allowed unsolicited faxes to be sent to a person or entity without violating the TCPA if the sender and the person or entity had an "established business relationship," but the proposed class representative did not meet the representative's burden of showing how many proposed class members qualified under that exception. Carnett's, Inc. v. Hammond, 279 Ga. 125, 610 S.E.2d 529 (2005).

Trial court abused the court's discretion in granting class certification to an insured in a breach of contract and fraud action against an insurer as the common questions of law and fact did not predominate over the class members' individual questions, the insured's claims were not typical of other members, and the insured was not an adequate representative; the other class members had different types of coverage and in different locations, which made each claim unique as to the individual facts and circumstances for purposes of the statutory requirements under O.C.G.A. § 9-11-23(a). Life Ins. Co. v. Meeks, 274 Ga. App. 212, 617 S.E.2d 179 (2005).

Trial court did not abuse the court's discretion in determining that an alleged class representative's claims were not suitable for class certification as individual fact issues predominated over any common issues shared by the putative class. R.S.W. v. Emory Healthcare, Inc., 290 Ga. App. 284, 659 S.E.2d 680 (2008).

Trial court did not err in denying a homeowner's motion for class certification in the homeowner's action seeking a declaratory judgment that adjacent lot owners had an irrevocable easement or implied covenant in a golf club's golf course and an injunction restricting the use of the property to golf course purposes only because there was evidence that a homeowner failed to show commonality, i.e., questions of law and fact common to the class members, as required by O.C.G.A. § 9-11-23(a)(2); the trial court was authorized to find that resolution of the issues would require individual determinations and an analysis of the representations made to each homeowner and the extent to which each homeowner relied upon the representations because the lots purchased by the prospective class members were not developed and sold in a single, comprehensive subdivision but arose out of multiple projects by different developers and resulted in different subdivisions with separate sections, and different realtors had been involved in the subdivision sales. Peck v. Lanier Golf Club, Inc., 304 Ga. App. 868, 697 S.E.2d 922 (2010).

Trial court abused the court's discretion in granting a motion for class certification because many individual suits would be necessary even if the one or two common issues were resolved class-wide; the qualitative analysis necessary to show liability for injuries such as loss of consortium, anxiety, and emotional distress demonstrated that common questions vital to proving causation had to be answered on a highly individualized basis, and proving causation for claims based on injuries such as anxiety, loss of consortium, and emotional distress was inherently specific to the individuals affected. Doctors Hosp. Surgery Ctr., LP v. Webb, 307 Ga. App. 44, 704 S.E.2d 185 (2010).

Because proof in the customers' misrepresentation action against a funeral home would require an inquiry of every class member to determine whether the members were told that an obituary fee included a logo charge and/or whether the class would have declined to include the logo if given such information, the proposed class failed to meet the com- monality requirement of O.C.G.A. § 9-11-23(a)(2) for certification. Ardis v. Fairhaven Funeral Home & Crematory, Inc., 312 Ga. App. 482, 718 S.E.2d 843 (2011).

Trial court erred in finding that a customer and the proposed class shared common questions of law and fact and that the customer was a sufficiently typical representative of that class under O.C.G.A. § 9-11-23(a)(2) and (a)(3) because the customer did not suffer any actual financial or physical injury as a result of a pharmacy's sale of the customer's medication information to another pharmacy; there was no evidence of any "public" disclosure of the customer's data, and such cases were bound to turn on individual rather than common questions. Rite Aid of Ga., Inc. v. Peacock, 315 Ga. App. 573, 726 S.E.2d 577 (2012).

Minor variations in amount of damages or location within state does not destroy class when legal issues are common. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Denial of certification when individual questions predominate.

- Although class actions are permissible when the right sought to be enforced is "common" to the members of the class, albeit neither joint, nor derivative, nor one affecting specific property, the trial court may deny certification when granted a common right, individual questions of law or fact as between the defendant and individual class plaintiffs would yet predominate. Hill v. General Fin. Corp., 144 Ga. App. 434, 241 S.E.2d 282 (1977).

Because individual factual issues predominated over issues common to all class members, it was error to grant class certification as to damages to customers claiming that companies had improperly provided termite inspections. The action would require individualized inquiries as to what inspectors did at particular properties, whether individual customer signatures were forged, and whether individual customers had met affirmative contractual duties; furthermore, resolution of the class representatives' claims would not necessarily prove one or more elements of the other class members' claims. Rollins, Inc. v. Warren, 288 Ga. App. 184, 653 S.E.2d 794 (2007), cert. denied, 2008 Ga. LEXIS 216 (Ga. 2008).

Trial court properly denied class certification requested by a plaintiff in a suit asserting breach of contract and other claims involving the purchase of a truck that was equipped with a base radiator instead of an upgrade version because the plaintiff failed to establish even one of the factors required of O.C.G.A. § 9-11-23(f)(3) in that there were too many individual issues existing for each purported class member with regard to each purchase made. Individual issues existed as to whether a purported class member actually paid for an upgraded radiator not received; whether each class member gave the defendant, the manufacturer, a reasonable opportunity to repair the defect; and whether injury was caused by such a defect. Roland v. Ford Motor Co., 288 Ga. App. 625, 655 S.E.2d 259 (2007), cert. denied, 2008 Ga. LEXIS 270 (Ga. 2008).

Class certification under O.C.G.A. § 9-11-23(b)(3) was properly denied in a former employee's suit alleging that the former employer submitted subagent license applications without employee authorization because individual issues regarding whether employee signatures were forged and whether employee authorizations were obtained predominated over common issues. Perez v. Atlanta Check Cashers, Inc., 302 Ga. App. 864, 692 S.E.2d 670 (2010).

Cases involving franchises have been approved as class actions when the same licensing agreement was used. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Actions on behalf of defrauded securities purchasers present a particularly desirable situation for a class action. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Class action on behalf of purchasers of securities, alleged to have been defrauded by a common course of dealing on the part of the defendants, satisfies requisites of the statute. Sta-Power Indus., Inc. v. Avant, 134 Ga. App. 952, 216 S.E.2d 897 (1975).

Purchasers of unregistered securities were properly certified as a class even though the purchasers asserted causes of action based on fraud in addition to those based on violations of securities laws. Trend Star Continental, Ltd. v. Branham, 220 Ga. App. 781, 469 S.E.2d 750 (1996).

Discretion of trial judge in certifying or refusing to certify a class action is to be respected upon appeal in all cases when not abused. Hill v. General Fin. Corp., 144 Ga. App. 434, 241 S.E.2d 282 (1977).

Whether to allow a case to proceed as a class action in Georgia is a matter of discretion with the trial judge. Ford Motor Credit Co. v. London, 175 Ga. App. 33, 332 S.E.2d 345 (1985).

Refusal to certify not grounds for dismissal of complaint.

- Determination by court that action brought as a class action should not be so maintained did not afford a basis for dismissing the complaint, but rather, would mean that the action would be stripped of its character as a class action and would proceed as a nonclass action. Dillingham v. Doctors Clinic, 138 Ga. App. 41, 225 S.E.2d 500 (1976).

Refusal to certify proper when no motion filed.

- Trial court does not abuse the court's discretion in failing to certify, as a class action, a cause of action in which the plaintiffs do not file a motion to have the action so certified. Estate of Seamans v. True, 247 Ga. 721, 279 S.E.2d 447 (1981).

No error in bifurcating issues.

- When automobile insurance policyholders sought damages and declaratory and injunctive relief in a dispute over the scope of physical damage coverage, the trial court did not err in bifurcating the issues and certifying a class for declaratory and injunctive relief only. State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 556 S.E.2d 114 (2001).

Class member had standing to represent class.

- In subscribers' class action suit against an Internet access provider, one of the subscribers did not lack standing to represent the class due to the subscriber's failure to pay the provider an allegedly illegal early termination fee, which was the gravamen of the lawsuit. The provider charged the fee to the subscriber's credit card, and refused to disclaim the right to collect the fee from the subscriber. EarthLink, Inc. v. Eaves, 293 Ga. App. 75, 666 S.E.2d 420 (2008).

Litigants and trial court share obligation to ensure that certification question timely resolved.

- Trial court erred in denying a motion for class certification because the court did not engage in the required analysis in determining whether the motion had to be denied as untimely or make any factual findings supporting the court's decision; O.C.G.A. § 9-11-23 places a shared obligation upon the litigants and the court to ensure that the question of class certification is timely resolved, and it neither directs a plaintiff to move for class certification within a specified time, nor does it prevent a defendant from requesting an order denying class certification or a court from acting on the court's own initiative. Fuller v. Heartwood 11, LLC, 301 Ga. App. 309, 687 S.E.2d 287 (2009), cert. denied, No. S10C0573, 2010 Ga. LEXIS 361 (Ga. 2010).

Failure to describe members of class.

- Order of final judgment was vacated and a class action was remanded for entry of an order that included a description of the class members as identified in the trial court's order naming the class. The order of final judgment failed to comply with O.C.G.A. § 9-11-23(c)(3) since the order did not describe the members of the class as previously identified by the trial court in the court's order naming the class. Jones v. Forest Lake Vill. Homeowners Ass'n, 304 Ga. App. 495, 696 S.E.2d 453 (2010).

Failure to consider factors.

- Order denying a homeowner's petition for class certification of a declaratory judgment action was improper because the trial court erred in addressing only the merits of the underlying claim and not making the required findings and conclusions with regard to whether each factor required by O.C.G.A. § 9-11-23 had been established; contrary to the trial court's order which assumed that the homeowner was traveling under § 9-11-23(b)(3), the homeowner was asking for a declaratory judgment and proceeding under § 9-11-23(b)(2). The trial court's order did not analyze all of the factors under § 9-11-23(a) and those the court did discuss were dealt with solely under the guise of the substantive claim. Peck v. Lanier Golf Club, Inc., 298 Ga. App. 555, 680 S.E.2d 595 (2009).

Requirements for deciding whether motion for class certification is untimely.

- When deciding whether to deny a motion for class certification as untimely, the trial court, in the exercise of the court's sound discretion, must consider the purposes served by O.C.G.A. § 9-11-23, balancing any actual prejudice to the litigants or the class against any legitimate reasons for the delay, and in the absence of a local rule governing the timely filing of a motion for class certification, a trial court may not deny an otherwise proper motion solely on the basis that the motion was untimely; rather, the trial court must determine, considering the relevant factors, whether the delay resulted in any actual prejudice to the litigants or to the class. Then, in the court's order on the motion for class certification, the trial court shall set forth in writing factual findings supporting the court's decision. Fuller v. Heartwood 11, LLC, 301 Ga. App. 309, 687 S.E.2d 287 (2009), cert. denied, No. S10C0573, 2010 Ga. LEXIS 361 (Ga. 2010).

Because district courts are required to conduct a "rigorous analysis" into whether the prerequisites of Fed. R. Civ. P. 23 are met before certifying a class, that rigorous analysis should also apply to a trial court's decision under O.C.G.A. § 9-11-23(f)(1)(3) concerning whether the parties or the class have been prejudiced by an untimely motion for class certification. Fuller v. Heartwood 11, LLC, 301 Ga. App. 309, 687 S.E.2d 287 (2009), cert. denied, No. S10C0573, 2010 Ga. LEXIS 361 (Ga. 2010).

Interpretation of a form agreement proper for class action.

- Trial court properly certified a class of individuals who purchased credit life or credit disability insurance from an insurer and who may be owed a refund from the insurer for unearned premiums on those policies. The interpretation of a form agreement presented a classic case of a common question of law appropriate for class adjudication. Res. Life Ins. Co. v. Buckner, 304 Ga. App. 719, 698 S.E.2d 19 (2010).

Class certification held proper.

- Trial court properly granted class certification in an action after an insurance company customer alleged that the customers and others had been inappropriately charged premiums and billing fees related to the defendant's "automobile club"; the claims involved standard sales methods and practices common to class members, the customer as a recent "past insured" was not an inadequate representative, and it was not appropriate at the certification stage to consider whether the customer could prevail on the customer's claims. Village Auto Ins. Co. v. Rush, 286 Ga. App. 688, 649 S.E.2d 862 (2007), cert. denied, 2008 Ga. LEXIS 72 (Ga. 2008).

Subscribers sued an internet access provider alleging an early termination fee provision in their contracts was unenforceable. The need for individual damage calculations did not defeat class certification under O.C.G.A. § 9-11-23 since the subscribers sought remedies that would be standard and formulaic: a refund for those who paid the fee, and an injunction against enforcing the fee for those who did not. EarthLink, Inc. v. Eaves, 293 Ga. App. 75, 666 S.E.2d 420 (2008).

Trial court properly certified a class consisting of all similarly situated bankrupt mortgagors who had been assessed inspection and attorney fees by a mortgagee without prior notice or approval by the bankruptcy court. The claims of theft by conversion, theft by deception, and violations of Georgia RICO (O.C.G.A. § 16-14-4) did not require proof of reliance by each class member, thus making a class action unmanageable; as similar written representations were common to all the security agreements at issue, circumstantial evidence could be used to show that reliance was also common to the whole class. Liberty Lending Servs. v. Canada, 293 Ga. App. 731, 668 S.E.2d 3 (2008).

Trial court did not err in failing to ensure that a class notice included the information specified in O.C.G.A. § 9-11-23(b)(3) because the trial court's order certifying the class showed that the court found class certification appropriate under § 9-11-23(b)(2); the notice to potential class members was not subject to the requirements of § 9-11-23(c)(2). Jones v. Forest Lake Vill. Homeowners Ass'n, 304 Ga. App. 495, 696 S.E.2d 453 (2010).

Denial of class certification proper.

- Trial court properly denied a motion for class certification that was filed by a Florida resident who claimed that a Georgia limited liability company (LLC) violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, when the LLC authorized another company to send unsolicited fax transmissions because the resident received a transmission from a residence located in the same area code, and not from a telephone number that belonged to the Georgia LLC or the LLC's agents, and because the Florida resident had a prior business relationship with the LLC. McGarry v. Cingular Wireless, L.L.C., Ga. App. , S.E.2d (Mar. 24, 2004).

Students were not entitled to class certification in a suit alleging fraud by a university and the university's parent company because the students failed to establish the O.C.G.A. § 9-11-23(b)(3) requirement of predominance since individualized proof was required to show if class members had relied to their detriment on the alleged fraud. Diallo v. Am. Intercontinental Univ., Inc., 301 Ga. App. 299, 687 S.E.2d 278 (2009).

Trial court abused the court's discretion in granting certification under O.C.G.A. § 9-11-23(b)(2) based on a claim for medical monitoring because the recovery of monetary damages was at the core of the dispute between a patient, the patient's spouse, and a hospital; the trial court's order bifurcating the liability and damages phases, trying damages separately to a jury if necessary, demonstrated that the damages claims in the complaint overwhelmed the injunctive relief sought and were not merely incidental thereto. Doctors Hosp. Surgery Ctr., LP v. Webb, 307 Ga. App. 44, 704 S.E.2d 185 (2010).

Typicality.

- Trial court properly adopted a special master's determination that certification of a class of evacuated residents following an accidental chemical release was warranted under O.C.G.A. § 9-11-23(a) as to all but one representative as the prerequisites of numerosity, commonality, typicality, and adequacy of representation were satisfied; however, as one class representative had settled that representative's claims against the chemical company, although the representative disputed whether the settlement was fair, the representative did not satisfy the typicality requirement. Brenntag Mid South, Inc. v. Smart, 308 Ga. App. 899, 710 S.E.2d 569 (2011).

Trial court erred in finding that a customer and the proposed class shared common questions of law and fact and that the customer was a sufficiently typical representative of that class under O.C.G.A. § 9-11-23(a)(2) and (a)(3) because the customer failed to prove that the response to the closing of the pharmacy was shared by other members of the class; given the customer's lack of actual injury, the customer was unlikely to vigorously litigate the action on behalf of the class. Rite Aid of Ga., Inc. v. Peacock, 315 Ga. App. 573, 726 S.E.2d 577 (2012).

Number requirement not met.

- Trial court erred in granting the customer's request for class certification because the class of nine was insufficient to meet the requirements of O.C.G.A. § 9-11-23(a)(1), and the customer failed to show the existence of other significant factors to warrant satisfaction of that requirement when, inter alia, the customer was capable of identifying all putative class members and there were no geographic constraints. Am. Debt Found., Inc. v. Hodzic, 312 Ga. App. 806, 720 S.E.2d 283 (2011).

Notice period tolled by filing of plaintiff's complaint.

- Filing of the plaintiff's complaint tolled the required time period for giving notice to the defendant for all putative class members until a certification decision was made and the notified class members elected whether to opt out or remain in the class, thus, preserving the numerosity issue for a determination of whether the total number of putative class members whose contractual conditions have been tolled met the numerosity requirement of O.C.G.A. § 9-11-23(a)(1). Bickerstaff v. SunTrust Bank, 299 Ga. 459, 788 S.E.2d 787 (2016), cert. denied, 137 S. Ct. 571, 196 L. Ed. 2d 447 (U.S. 2016).

Representative can pursue invalidating contractual arbitration clause.

- Courts routinely permit a putative class representative to seek a ruling invalidating contractual arbitration clauses prior to class certification. Bickerstaff v. SunTrust Bank, 299 Ga. 459, 788 S.E.2d 787 (2016), cert. denied, 137 S. Ct. 571, 196 L. Ed. 2d 447 (U.S. 2016).

Class representative is a putative agent who keeps the case alive pending the decision on certification. Bickerstaff v. SunTrust Bank, 299 Ga. 459, 788 S.E.2d 787 (2016), cert. denied, 137 S. Ct. 571, 196 L. Ed. 2d 447 (U.S. 2016).

Allegation of status as shareholder at time of amendment insufficient.

- Amended complaint in a derivative action alleging merely that the plaintiff was a shareholder at the time the amended complaint was filed did not meet requirements of law, and absent a substantial allegation that the plaintiff was a shareholder at the time the alleged transgressions occurred, the plaintiff could not maintain such an action. Haldi v. Continental Inv. Corp., 50 F.R.D. 275 (N.D. Ga. 1970).

Proposed amendment which would compromise claim.

- General rule permitting amendment as a matter of course and without leave of court before the entry of a pretrial order has no application in respect to a class action if the proposed amendment is one which would have the effect of compromising the claim. Murphy v. Hope, 229 Ga. 836, 195 S.E.2d 24 (1972).

Voluntary dismissal without leave of court ineffective.

- Voluntary dismissal of a class action, without leave of court, is ineffectual. State v. Golia, 235 Ga. 791, 222 S.E.2d 27 (1976).

Showing of absence of harm before voluntary withdrawal.

- Voluntary withdrawal of one count without a showing of absence of harm raises doubt that the rights of some or all of the absentees would be protected adequately in a class action. Graham v. Development Specialists, Inc., 180 Ga. App. 758, 350 S.E.2d 294 (1986).

Interlocutory order certifying class was directly appealable.

- Employee's motion to dismiss an appeal for lack of jurisdiction was denied as the trial court's interlocutory order certifying the class was directly appealable pursuant to O.C.G.A. § 9-11-23(g). McDonald Oil Co. v. Cianocchi, 285 Ga. App. 829, 648 S.E.2d 154 (2007).

Removal improper.

- Because a customer's class action complaint brought pursuant to O.C.G.A. § 9-11-23 provided no information indicating the amount in controversy or the number of individuals in alternative classes, a bank and an affiliated credit card service improperly removed the action pursuant to 28 U.S.C. § 1332(d) of the Class Action Fairness Act of 2005 and 28 U.S.C. § 1446. Thomas v. Bank of Am. Corp., 570 F.3d 1280 (11th Cir. 2009).

Dismissal of complaint erroneous.

- Trial court's dismissal of a homeowner's complaint seeking a declaratory judgment that adjacent lot owners had an irrevocable easement or implied covenant in a golf club's golf course and an injunction restricting the use of the property to golf course purposes only was erroneous because after denying the homeowner's motion for class certification, the trial court was required to allow a reasonable time for joinder of the proper plaintiffs before dismissing the action. Peck v. Lanier Golf Club, Inc., 304 Ga. App. 868, 697 S.E.2d 922 (2010).

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, § 1674 et seq. 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, § 21. 59 Am. Jur. 2d, Parties, § 45 et seq.

16 Am. Jur. Pleading and Practice Forms, Labor and Labor Relations, § 232.

C.J.S.

- 18 C.J.S., Corporations, § 658 et seq. 35A C.J.S., Federal Civil Procedure, §§ 85 et seq., 336, 772 et seq., 822. 67A C.J.S., Parties, §§ 18 et seq., 25 et seq.

ALR.

- Right of plaintiff to dismiss an action brought on behalf of himself and other persons, 8 A.L.R. 950; 91 A.L.R. 587.

Right to enjoin enforcement of illegal tax, local assessment, or license fee, upon joinder of several affected thereby, 32 A.L.R. 1266; 156 A.L.R. 319.

Legal rights and remedies in respect of funds raised by voluntary committee for public or quasi public purpose, 53 A.L.R. 1237.

Pendency of representative or class suit as ground of abatement of subsequent action by member of class represented, 101 A.L.R. 574.

Reinstatement, after expiration of term, of case which has been voluntarily withdrawn, dismissed, or nonsuited, 111 A.L.R. 767.

Identity or community of interests essential to class or representative suit, 132 A.L.R. 749.

Value of property or right involved in class suit, value or interest of individuals in whose name suit is brought, or value of aggregate interests of members of class, as criterion of jurisdictional amount, 141 A.L.R. 569.

Rights of stockholder of one corporation to maintain derivative action in right of another corporation stock of which is owned by the former corporation ("double derivative suit"), 154 A.L.R. 1295.

Diversity of citizenship, for purposes of federal jurisdiction, in stockholders' derivative action, 68 A.L.R.2d 824.

Maintenance of second or successive stockholder's derivative action, 70 A.L.R.2d 1305.

Intervenor's right to disqualify judge, 92 A.L.R.2d 1110.

Maintainability in state court of class action for relief against air or water pollution, 47 A.L.R.3d 769.

Circumstances excusing demand upon other shareholders which is otherwise prerequisite to bringing of stockholder's derivative suit on behalf of corporation, 48 A.L.R.3d 595.

Consumer class actions based on fraud or misrepresentation, 53 A.L.R.3d 534.

Appealability of order denying right to proceed in form of class action - state cases, 54 A.L.R.3d 595.

Allowance of punitive damages in stockholder's derivative action, 67 A.L.R.3d 350.

Propriety of class action in state courts to assert tenants' rights against landlord, 73 A.L.R.3d 852.

Propriety of state court class action by holders of bonds against indenture trustee, 73 A.L.R.3d 880.

Maintenance of class action against governmental entity as affected by requirement of notice of claim, 76 A.L.R.3d 1244.

Appealability of state court order granting or denying consolidation, severance, or separate trials, 77 A.L.R.3d 1082.

Absent or unnamed class members in class action in state court as subject to discovery, 28 A.L.R.4th 986.

Propriety of attorney acting as both counsel and class member or representative, 37 A.L.R.4th 751.

Inverse condemnation state court class actions, 49 A.L.R.4th 618.

Defamation of class or group as actionable by individual member, 52 A.L.R.4th 618.

Class actions in state mass tort suits, 53 A.L.R.4th 1220.

Standing to bring action relating to real property of condominium, 74 A.L.R.4th 165.

Application of full faith and credit principles to class-action litigation and judgments, 50 A.L.R.6th 281.

Propriety of allowing class member to opt out in class action certified under paragraph (b)(1) or (b)(2) of Rule 23 of Federal Rules of Civil Procedure, 146 A.L.R. Fed. 563.

Propriety, under rules 23(a) and 23(b) of Federal Rules of Civil Procedure, as amended in 1966, of class action seeking relief against pollution of environment, 19 A.L.R. Fed. 2d 303.

Appealability of determination regarding confirmation of action as class action under Federal Rule of Civil Procedure Rule 23 and its enabling legislation (28 U.S.C.S. § 1292(e)), 22 A.L.R. Fed. 2d 303.

Satisfaction of numerosity requirement in ERISA class actions, 26 A.L.R. Fed. 2d 381.

Propriety of incentive awards or incentive agreements in class actions, 60 A.L.R.6th 295.

Determination of whether availability of class, consolidated, or collective arbitration is question of arbitrability, 4 A.L.R.7th 7.

Sufficiency of legal notice provided by online publication or electronic mail in class action suits, 84 A.L.R. Fed. 2d 103.

Amount in controversy jurisdictional requirement under Class Action Fairness Act (CAFA), 5 A.L.R. Fed. 3d 2.

Construction and application of Mass Action Provision of Class Action Fairness Act, 28 U.S.C.A. § 1332(d)(11), 5 A.L.R. Fed. 3d 3.

Construction of the Class Action Fairness Act of 2005 diversity exception for local controversies under 28 U.S.C.A. § 1332(d)(4)(A), 13 A.L.R. Fed. 3d 6.