O.C.G.A. § 9-2-4 (2019)

Annotations

Law reviews. For article discussing origin and valid-

ity of Georgia statute concerning election of remedies, see 14 Ga. L. Rev. 239 (1980). For article, “Res Judicata and Collateral Estoppel: New Defenses in Construction Litigation?,” see 21 Ga. St. B.J. 108 (1985). For annual survey on commercial transportation, see 73 Mercer L. Rev. 47 (2021).

JUDICIAL DECISIONS Constitutionality, see Douglas County v. Abercrombie, 226 Ga. 39, 172 S.E.2d 419, 1970 Ga. LEXIS 422 (1970). Purpose of 1967 amendment. - This section is addressed to satisfaction of different claims and its legislative history would seem to indicate that it was amended in 1967 to accommodate the pursuit of inconsistent remedies envisioned in the Civil Practice Act of 1966. Liberty Nat’l Bank & Trust Co. v. Diamond, 231 Ga. 321, 201 S.E.2d 400, 1973 Ga. LEXIS 688 (1973). Right of action. - Homeowners lacked standing to appeal consent orders entered by the director of the Environmental Protection Division of the Department of Natural Resources until the director sought to enforce them, but the homeowners were authorized to sue those directly responsible for polluting their property, irrespective of their right of access to the courts; hence, the underlying intent of O.C.G.A. § 12-2-2(c)(3)(B) was to preclude such attacks on the director’s exercise of administrative authority to determine the scope of remedial measures set forth in consent orders issued under the Georgia Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq. Couch v. Parker, 280 Ga. 580, 630 S.E.2d 364, 2006 Ga. LEXIS 239 (2006). Effect of § 9-2-5 on this section. - While former Code 1933, § 3-114 (see now O.C.G.A. § 9-2-4) provided a general rem-

edy for a plaintiff to obtain satisfaction by using consistent or inconsistent remedies against one or more defendants until a judgment was satisfied, former Code 1933, §§ 3-601 and 3-605 (see now O.C.G.A. § 9-2-5) provided a defendant with a specific defense against a plaintiff who came within its parameters and will prevail over the general terms of former Code 1933, § 3-114, if all of the conditions thereof were satisfied. Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684, 1978 Ga. App. LEXIS 2296 (1978). This section does not apply to petition for declaratory judgment. Kiker v. Hefner, 119 Ga. App. 629, 168 S.E.2d 637, 1969 Ga. App. LEXIS 1192 (1969) (see O.C.G.A. § 9-2-4). Former requirement of consistency of remedies is no longer of force in this state. Cox v. Travelers Ins. Co., 228 Ga. 498, 186 S.E.2d 748, 1972 Ga. LEXIS 816 (1972). Doctrine of election of remedies (set forth in this section prior to 1967 amendment) is procedural and remedial in nature, and as against contention that a litigant has chosen a prior inconsistent remedy, the law in effect at the time the order is entered up must be applied. Douglas County v. Abercrombie, 119 Ga. App. 727, 168 S.E.2d 870, 1969 Ga. App. LEXIS 1222 (1969). Pursuit of remedy to satisfaction controlling. - Inconsistency in the remedies sought is not the determinative fac-

zens Bank & Trust Co., 265 Ga. 453, 458 S.E.2d 337. Superior court did not err in reversing the decision of the Georgia Department of Revenue that a corporate officer was liable for a restaurant’s sales and use taxes pursuant to O.C.G.A. § 48-2-52 because the release of and refund payment to the majority owner of the restaurant operated as a release of the officer; under O.C.G.A. § 13-1-13, by voluntarily paying the owner a settlement amount with full awareness of any potential joint claim it had against the officer, the Department forfeited any right the Department had to recoup from the officer the payment made to the owner. Ga. Dep’t of Revenue v. Moore, 317 Ga. App. 31, 730 S.E.2d 671, 2012 Ga. App. LEXIS 684 (2012). Suit against wrong person for collection of excess in rents pursuant to the former federal Housing and Rent Act of 1947, and a judgment therein, would not preclude plaintiffs from seeking a similar judgment against the real owner of the property. Williams v. Higgason, 205 Ga. 349, 53 S.E.2d 473, 1949 Ga. LEXIS 358 (1949). Complaint seeking injunctive relief against county corporation is not subject to dismissal because of pendency of mandamus action in another county against the corporation and its president. Tallant v. Executive Equities, Inc., 230 Ga. 172, 195 S.E.2d 904, 1973 Ga. LEXIS 847 (1973). Action for divorce and child support not inconsistent with abandonment action. - Mere pendency of the former action for divorce wherein wife sought support for the child from husband does not preclude, as a matter of law, the subsequent prosecution of an abandonment action to adjudicate the question of defendant-third party’s obligation for support of the same child. Foster v. State, 157 Ga. App. 554, 278 S.E.2d 136, 1981 Ga. App. LEXIS 1909 (1981). Damages for violation of settlement agreement. - When a settlement agreement is incorporated into a final decree of divorce, a suit seeking damages for the violation of its terms need not be initiated solely upon the decree, but an action ex contractu may be maintained due to a

tor in whether or not the bringing of a prior suit bars institution of a later one; whether or not a remedy has been pursued to satisfaction controls. Adams v. Cox, 152 Ga. App. 376, 262 S.E.2d 634, 1979 Ga. App. LEXIS 2932 (1979). Joint liability not prevented. - O.C.G.A. § 9-2-4 prevents double recovery, not joint liability. Olden Camera & Lens Co. v. White, 179 Ga. App. 728, 347 S.E.2d 696, 1986 Ga. App. LEXIS 2014 (1986); Green v. Thompson, 208 Ga. App. 609, 431 S.E.2d 390, 1993 Ga. App. LEXIS 543 (1993), cert. denied, No. S93C1296, 1993 Ga. LEXIS 860 (Ga. Sept. 20, 1993). Unsatisfied judgment against joint and several obligor no bar. - Judgment against one of two joint and several obligors, which has never been satisfied, is no bar to a suit against the other. W.T. Rawleigh Co. v. Burkhalter, 59 Ga. App. 514, 1 S.E.2d 609, 1939 Ga. App. LEXIS 341 (1939). Effect of default judgment. - Merely obtaining a default judgment against one party does not constitute an election between two defendants who the plaintiff alleges are jointly and severally liable to it. Spalding Ford Lincoln-Mercury, Inc. v. Turner Broadcasting Sys., 202 Ga. App. 505, 415 S.E.2d 26, 1992 Ga. App. LEXIS 37 (1992). Judgment against principal as barring subsequent action against another. - When the judgment to which defendants claim a benefit under res judicata was rendered against their principal, that judgment represents a final adjudication of the principal’s vicarious liability for such damage as plaintiff incurred. Since that judgment has been satisfied, plaintiff cannot thereafter set up the same cause of action against another whom the plaintiff had the election of suing in the first place. Nannis Terpening & Assocs. v. Mark Smith Constr. Co., 171 Ga. App. 111, 318 S.E.2d 89, 1984 Ga. App. LEXIS 2115 (1984). Full satisfaction bars further recovery. - Settlement in which plaintiff, a lender, agrees to finance part of the settlement and files a satisfaction of judgment to that effect, serves as a bar to pursuit of further recovery from another defendant. Saunders, Stuckey & Mullis, Inc. v. Citi-

breach of the settlement agreement. Gray v. Higgins, 205 Ga. App. 52, 421 S.E.2d 341, 1992 Ga. App. LEXIS 1067 (1992), overruled in part, Walker v. Estate of Mays, 279 Ga. 652, 619 S.E.2d 679, 2005 Ga. LEXIS 519 (2005), overruled in part as stated in Stone v. Stone, 295 Ga. App. 783, 673 S.E.2d 283, 2009 Ga. App. LEXIS 132 (2009). Actions against joint tortfeasors. - It is not an admission to allege in different actions against joint tort-feasors that each defendant’s negligence was the proximate cause of the incident as there may be more than one proximate cause. Church’s Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916, 1979 Ga. App. LEXIS 2166 (1979). Denial of motion to dismiss not error when different claims against various defendants. - Denial of a motion to dismiss is not error although the opposing party has already obtained a judgment against the other defendants in the case where the defendants are not joint defendants, the claims against the various defendants being based on different theories and not alleging any form of joint liability. Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506, 305 S.E.2d 14, 1983 Ga. App. LEXIS 2224 (1983). Plaintiff’s right to pursue different remedies ends when the plaintiff obtains full satisfaction from one source. McLendon Bros. v. Finch, 2 Ga. App. 421, 58 S.E. 690, 1907 Ga. App. LEXIS 410 (1907). Pursuit of contradictory action following satisfaction under first suit. - Once a plaintiff has obtained satisfaction from one party one cannot pursue another party for the same damages under another theory completely contradictory and inconsistent with the contentions made in the first suit. Kelly v. Chrysler Corp., 129 Ga. App. 447, 199 S.E.2d 856, 1973 Ga. App. LEXIS 1028, 1973 Ga. App. LEXIS 1684, 1973 Ga. App. LEXIS 1693 (1973). After a suit has been prosecuted to judgment, or a satisfaction obtained, plaintiff cannot bring a second action disproving facts relied upon in establishing the first. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 209 S.E.2d 676, 1974 Ga. App. LEXIS 1858 (1974).

Presumption of full satisfaction arises from settlement with joint tortfeasor, but such a presumption does not obtain when both the acts and their consequences are separable. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 209 S.E.2d 676, 1974 Ga. App. LEXIS 1858 (1974). When separate and concurring acts of negligence cause a single injury either or both may be pursued until a satisfaction, settlement, release, or accord and satisfaction is obtained from some, but this will end the right of action against all. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 209 S.E.2d 676, 1974 Ga. App. LEXIS 1858 (1974). Two recoveries from same defendant prohibited. - Although a plaintiff may pursue any number of consistent or inconsistent remedies against the same person until a plaintiff shall obtain a satisfaction, the plaintiff may not proceed with two lawsuits and recover twice from the same defendant merely by denominating one action a tort and the other a breach of contract. Bell v. Sigal, 129 Ga. App. 249, 199 S.E.2d 355, 1973 Ga. App. LEXIS 963 (1973). Election between theories of recovery prior to judgment. - While claimant or counterclaimant is not required to make an election between inconsistent remedies prior to the verdict, a party must make an election prior to the formulation and entry of judgment as every judgment must be certain and definite as to the amount thereof. UIV Corp. v. Oswald, 139 Ga. App. 697, 229 S.E.2d 512, 1976 Ga. App. LEXIS 1955 (1976) (action seeking recovery on tort and contract grounds for repossession and sale of collateral). Since an election between inconsistent remedies must be made at some point, it is better, at least in the case of a verdict in a single lawsuit for inconsistent items of recovery, to require the election to be made prior to judgment. UIV Corp. v. Oswald, 139 Ga. App. 697, 229 S.E.2d 512, 1976 Ga. App. LEXIS 1955 (1976). Application of an economic loss analysis by the trial court was proper in an action by an insured mortgagee against homeowner’s insurer for the face amount of a policy after a fire. Owens v.

Georgia Underwriting Ass’n, 223 Ga. App. 29, 476 S.E.2d 810. Summary judgment as to warranty claim did not preclude tort claim. - Grant of summary judgment on a breach of warranty claim did not preclude party from pursuing at trial the alternative theory of negligent construction as this course of action arises in tort and exists

independently of any claim for breach of contract. Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 428 S.E.2d 426, 1993 Ga. App. LEXIS 240 (1993). Arbitration proceedings. - For discussion on applicability of O.C.G.A. § 92-4 to arbitration proceedings, see French v. Jinright & Ryan, 735 F.2d 433, 1984 U.S. App. LEXIS 20974 (11th Cir. 1984).

RESEARCH REFERENCES Am. Jur. 2d. 1 Am. Jur. 2d, Actions, § 24 et seq. 25 Am. Jur. 2d, Election of Remedies, § 7 et seq. C.J.S. 1 C.J.S., Actions, §§ 47, 56, 79. 28A C.J.S., Election of Remedies or Rights or Theories of Recovery, § 1 et seq. ALR. Election of remedies by owner against public authority or corporation having power of eminent domain which unauthorizedly enters land without instituting

valid eminent domain proceedings, 101 A.L.R. 373. Doctrine of election of remedies as applicable where remedies are pursued against different persons, 116 A.L.R. 601. Effect of action as an election of remedy or choice of substantive rights in case of fraud in sale of property, 123 A.L.R. 378. Application for, or receipt of, unemployment compensation benefits as affecting claim for workmen’s compensation, 96 A.L.R.2d 941.