American Medical Security, Inc. v. Parker

CARLEY, Justice,

concurring and concurring specially.

I concur fully in the majority’s holding that, because appellees lacked standing to seek equitable relief in Georgia as to the proposed Alabama settlement, the trial court erroneously granted the injunction and then compounded that error by finding that appellants were *205in contempt of its order. I write separately to expound on why I believe that this Court correctly reverses the trial court.

The dissent finds it “important to stress” that Georgia law recognizes the inherent equitable power of this state’s courts to order a party over whom it has personal jurisdiction either to act or to refrain from acting in regard to litigation being conducted in another state. P. 211. In support of that proposition, however, the dissent does not cite any authority which holds that one who is not himself immediately and directly affected by a lawsuit pending in another state has the requisite standing to invoke that inherent power so as to seek and obtain from a Georgia court an order which controls the actions of one who is a party to the foreign action. Compare Sanders v. Yates, 215 Ga. 218 (109 SE2d 739) (1959) (Georgia defendants in pending Tennessee lawsuit granted injunction by Georgia court against prosecution of that action by Georgia plaintiffs); Guerra v. Texaco Exploration & Production (In re Lease Oil Antitrust Litigation (No. II)), 48 FSupp.2d 699 (S.D. Tex. 1998) (which does not address inherent judicial power, but is based entirely on a federal court’s exercise of its authority under the All Writs Act, 28 USC § 1651 (a), which statutory power is “ ‘firmly circumscribed.’ [Cit.]” Corley v. Entergy Tech. Holding Co., 297 FSupp.2d 915, 917 (II) (E.D. Tex. 2003)).

Although Georgia courts are invested with inherent equitable power, they are not authorized to exercise that power indiscriminately. To have standing to seek injunctive relief in Georgia, a plaintiff must show that he is in great danger of suffering an impending injury for which he does not have an adequate and complete remedy at law. See Hobbs v. Peavy, 210 Ga. 671, 673 (4) (82 SE2d 224) (1954). So long as appellees remained parties to the Alabama action, they lacked standing to seek equitable relief in Georgia, because they had an adequate remedy at law. They could have contested the settlement in Alabama. See Emmons v. City of Arcade, 270 Ga. 196, 198 (2) (507 SE2d 464) (1998) (holding that, “[generally, when administrative review is available, that procedure is an adequate remedy at law, precluding equitable relief. [Cit.]”). Rather than remain parties to the Alabama action, however, appellees filed suit against appellants in Georgia and then sought injunctive relief here against enforcement of the Alabama settlement. As the majority correctly notes, the settlement of the Alabama suit was never intended to affect the legal rights of anyone who, having elected to opt out of that class action, filed his own individual claim against appellants. Thus, even assuming for the sake of argument that, so long as they remained parties to the Alabama action, appellees were not relegated to contesting the settlement in that state, they certainly lost whatever standing they might otherwise have had to invoke a *206Georgia court’s inherent equitable authority when they filed their own class action lawsuit against appellants here. See Whitehead v. Hasty, 235 Ga. 331 (219 SE2d 443) (1975) (question of propriety of injunctive relief becomes moot when party no longer would derive any benefit therefrom). At that point, appellees were no longer members of a class facing the possibility of being harmed by the proposed settlement of the Alabama lawsuit and, thus, they did not have standing to assert an equitable claim to enjoin it. See Shaffer v. City of Atlanta, 225 Ga. 184 (167 SE2d 151) (1969) (pending appeal dismissed as moot after litigation which party sought to enjoin ended).

The dissent maintains that appellees’ “standing” is established as a matter of law because, at the time they sought injunctive relief in Georgia, the Alabama class had not been formally certified. Insofar as the “harm” component of “standing” to seek equitable relief is concerned, however, the decisive factor is not the date that the Alabama class was certified, but rather whether appellees opted in or out of participation therein. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 810-811 (II) (105 SC 2965, 86 LE2d 628) (1985) (holding that “[i]n most class actions an absent plaintiff is provided at least with an opportunity to ‘opt out’ of the case, and if he takes advantage of that opportunity he is removed from the litigation entirely.”). As the dissent itself recognizes, appellees filed their own suit in Georgia, and thereby “opted out” oftheAlabama class action, well before they ever sought injunctive relief here. “[T]he general rule is that an action at law will not be enjoined at the instance of one not a party thereto, particularly where the judgment in the action will not preclude the rights of such person.” Ferrell v. Wight, 187 Ga. 360, 365 (4) (200 SE 271) (1938). Thus, appellees clearly lacked “standing” when they invoked the Georgia court’s inherent equitable jurisdiction. The adequacy of the Alabama settlement had not become a moot issue entirely. However, it had become moot as to appellees, leaving those who remained parties to the Alabama action with the same decision whether to contest the settlement there or, as appellees had done, file suit in Georgia.

In support of a contrary holding, the dissent takes the anomalous position that the very factor demonstrating appellees’ loss of any standing as to the Alabama action represents, instead, a viable jurisdictional basis for the Georgia court’s exercise of its inherent equitable power. It accepts the contention that, once appellees had filed their own class action lawsuit in Georgia, they thereby became entitled “to protect themselves and the Georgia plaintiffs they represent against the imminent and irreparable harm created by appellants’ actions.” P. 211. As the majority suggests, however, the obvious fallacy in that argument is that appellees themselves were no longer *207in a class which was threatened by the Alabama settlement and, thus, could not claim to represent those who were. Any other Georgia resident who, unlike appellees, had not filed his or her own individual suit against appellants and who remained a member of the Alabama class would be entitled to receive the notice approved by the court in that state and, thus, would have the opportunity to determine on his or her own whether to accept the settlement or, as appellees had done, to opt out and litigate in Georgia courts. See Phillips Petroleum Co. v. Shutts, supra at 812 (II) (holding that “a fully descriptive notice . . . sent first-class mail to each class member, with an explanation of the right to ‘opt out,’ satisfies due process.”). Thus, under the circumstances existing at the time appellees sought injunctive relief, the only “harm” that they themselves may have faced from the Alabama settlement is that it had the potential to limit the number of those Georgia residents who ultimately joined them in their own class action lawsuit in this state. Neither appellees nor the dissent cites any authority for the proposition that appellees have an individual right to maximize the number of plaintiffs in their Georgia action against appellants.

With regard to the Georgia residents who did remain members of the Alabama class, the purported “harm” identified by the trial court and the dissent is that the “proposed class action settlement . . . imposed on [them] terms that were ‘illegal and unconscionable’ under Georgia law and . . . was entered into for the purpose of evading Georgia law.” P. 211. However, this assessment of the Alabama settlement is clearly erroneous. It “imposed” nothing on anyone, since it was a “proposed” settlement, and every Georgia resident would be given notice of his right to “opt out” and thereby avoid being bound by its terms. See Phillips Petroleum Co. v. Shutts, supra. More importantly, all aspects related to the settlement, including the sufficiency of the notification to be sent to the Georgia members of the class, were subject to the oversight and approval of the Alabama court. The dissent does not cite any authority for holding that a Georgia trial court has the inherent authority to second guess the ongoing control by a court of another state of litigation currently pending before it.

In any event, the well-recognized principle of comity would preclude the exercise by a Georgia court of such intrusive authority even assuming that it existed. “Judicial comity” is defined as “[t]he respect a court of one state or jurisdiction shows to another state or jurisdiction in giving effect to the other’s laws and judicial decisions.” Black’s Law Dictionary (7th ed.), p. 262. The judiciary of this state is required to “enforce . . . comity, unless restrained by the General Assembly, so long as its enforcement is not contrary to the policy or prejudicial to the interests of this state.” OCGA § 1-3-9. As the majority notes, the Alabama court expressly indicated that the claims *208of those Georgia residents who remain in the class action before it would be evaluated in accordance with Georgia law pursuant to controlling federal precedent. To suggest that the Alabama court would approve a settlement that was illegal and unconscionable is completely contrary to the notion of comity, which requires that we assume that the Alabama court will exercise the same competency and circumspection in protecting the rights of the litigants who are properly before it as will be exercised by the Georgia court presiding over appellees’ action. See Engel v. Scheuerman, 40 Ga. 206, 211 (1869). The holding of the Supreme Court of the United States in Webb v. Webb, 451 U. S. 493, 499 (101 SC 1889, 68 LE2d 392) (1981) addresses comity between the federal and the state courts, but is equally applicable when comity among the courts of the various states is involved:

[Although the States are sovereign entities, they are bound along with their officials, including their judges, by the Constitution and the [applicable] statutory law. Principles of comity in our [judicial] system require that the state courts be afforded the opportunity to perform their duty ....

Comity has been defined as “reciprocity.” Kyle & Co. v. Montgomery, 73 Ga. 337, 345 (3) (1884). Thus, the consideration for foreign recognition of the plenary authority exercised by Georgia courts over lawsuits pending before them is the recognition of the equivalent power that is exercised by the courts of the other states over lawsuits pending before them. If a Georgia trial court had the inherent equitable power to control the conduct of a lawsuit pending in another state, then the trial courts of the other states would have the same inherent equitable power to control a Georgia trial court in its conduct of an action pending before it. Thus, if the trial court’s orders in this case were not reversed, this Court would be serving notice on the courts of Alabama and of all the other states that they are no longer required to defer to Georgia courts in the exercise of jurisdiction over lawsuits pending here, because our judiciary is not compelled to give any deference to the jurisdiction exercised over actions pending before them.

Although the dissent does not expressly address comity, it implicitly rejects its applicability by agreeing with appellees’ contention that they are not “seeking to enjoin the Alabama court.” P. 211. However, this assertion ignores the fact that the injunction was intended to prevent appellants from issuing a notice which the Alabama court had approved and ordered sent to the Georgia residents who remained members of the Alabama class. That the Georgia court’s order violated the principle of comity is apparent from the fact *209that the grant of the injunction placed appellants in the untenable position of having to choose in which jurisdiction they would be forced to defend against a citation for contempt. If they complied with the Georgia injunction, they faced being held in contempt by the Alabama court which had approved the notice and ordered it sent to the appropriate members of the class. On the other hand, if appellants complied with the order of the Alabama court, they subjected themselves to punishment for defying the injunction issued by the Georgia court. Under these circumstances, the Georgia court used appellants as the indirect means to control the conduct of the trial court presiding over the litigation in Alabama. As the majority correctly points out, a party cannot do indirectly what he or she cannot do directly. Since the dissent concedes that appellees cannot enjoin the Alabama court directly, then it is likewise true that appellees cannot obtain that unauthorized result indirectly by seeking to enjoin appellants’ compliance with an order of that court.

In essence, appellees maintain that they are entitled to invoke a Georgia court’s inherent equitable jurisdiction because they are citizens of this state. However, “[c]itizenship, or residence on the soil of Georgia, it is apprehended, furnishes no legal or proper reason for the exercise of jurisdiction, in behalf of [appellees].” Jackson v. Johnson, 34 Ga. 511, 515 (1866). They were entitled to equitable relief only if they showed imminent and irreparable harm resulting from the settlement of the Alabama action. Because they were not affected by that settlement, they lack the standing to assert a viable claim for injunctive relief. The Georgia trial court erred in granting that relief, and thereby violated the fundamental principle of comity. Because the injunction was invalid, appellants properly complied with the directive of the Alabama court and cannot be cited for contempt in Georgia. Therefore, this Court correctly reverses the trial court’s erroneous orders, thereby obviating the potential devastating consequences that allowing the injunction and contempt citation to stand would have on Georgia’s compact with our sovereign sister states.

I am authorized to state that Presiding Justice Sears and Justice Thompson join in this opinion.