Anthony v. Am. Gen. Financial Serv. Inc

• Decision Date: 28 June 2010
• Docket Number: No. S10Q0203.,S10Q0203.
• Citation: 697 S.E.2d 166,287 Ga. 448
• Parties: ANTHONY et al.v.AMERICAN GENERAL FINANCIAL SERVICES, INC. et al.
• Court: Georgia Supreme Court

287 Ga. 448
697 S.E.2d 166

ANTHONY et al.
v.
AMERICAN GENERAL FINANCIAL SERVICES, INC. et al.

No. S10Q0203.

Supreme Court of Georgia.

June 28, 2010.

697 S.E.2d 167

Jason L. Crawford, Dustin T. Brown, James C. Fuller, Daughtery Crawford Fuller & Brown, Columbus, Robert T. Trammell, Jr., Trammell, Camp & Lewis, Atlanta, for appellants.

David A. Webster, Charles R. Bliss, Atlanta, John R. Bartholomew, IV, Anna-Elisa Mackowiak, Decatur, for amici curiae.

Lawrence J. Bracken, II, Bryan A. Powell, Charlotte M. Wheeler, Hunton & Williams, Atlanta, for appellees.

NAHMIAS, Justice.

The United States Court of Appeals for the Eleventh Circuit has certified to this Court four questions of Georgia law relating to a lawsuit filed by Terry and Sarah Anthony

697 S.E.2d 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). See Anthony v. American General Financial Svc., 583 F.3d 1302, 1307 (11th Cir.2009).

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 district court granted American General's motion to dismiss for failure to state a claim, see Federal Rule of Civil Procedure 12(b)(6), and the Anthonys appealed. 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. Subsection (b) provides, in relevant part, that “[i]t shall not be lawful for any notary public to charge a greater sum than $4.00 for each service performed,” which includes the $2.00 fee for the notarial act plus a “$2.00 fee for an attendance to make proof as a notary public” and for a certification if required. Subsection (c) provides that “ [a] notary public need not charge fees for notarial acts.” Finally, 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. But the emphasized portions of each subsection of the statute make it equally clear that consumers were directly protected against “notary public[s],” not anyone else. And it is also clear that a corporation cannot serve as a notary public. The statute requires an applicant for appointment as a notary public to be an “individual” more than 18 years old, “a United States citizen or ... a legal resident of the United States,” and “able to read and write the English language,” OCGA § 45-17-2(a)(1), (2) and (5), making it apparent that a notary must be a human being, not a corporate entity. This is also apparent from the nature of a notarial act as defined in the statute. See OCGA § 45-17-1(2) (“ ‘Notarial act’ means any act that a notary public is authorized by law to perform and includes, without limitation, attestation, the taking of an acknowledgment, the administration of an oath or affirmation, the taking of a verification upon an oath or affirmation, and the 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

697 S.E.2d 169

public are not subject directly to OCGA § 45-17-11. See Chase v. State, 285 Ga. 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. It may be good policy to have a law that directly protects consumers against corporations (or others) that employ notaries as well as the notaries themselves, but that is not the law that our Legislature has enacted. It is not the place of this Court to rewrite statutes to promote policies that are not expressed 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. One common means of extending liability, as reflected in the second part of the first certified question, is vicarious liability, or the general rule that employers are liable for the tortious acts of their employees if done in the course of their employment. That doctrine is very broad: “it makes no difference that the [employer] did not authorize, or even know of the [employee's] act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his [employee's] employment.' ” Crawford v. Johnson, 227 Ga.App. 548, 553, 489 S.E.2d 552 (1997) (citation omitted).

However, this Court's venerable decision in May v. Jones, 88 Ga. 308, 14 S.E. 552 (1891), declined to apply vicarious liability to an employee acting as a notary public. There we rejected the claim that a bank employing a notary public was automatically responsible for the negligence or misconduct of the notary, explaining that

[t]he reason is that the notary is not a mere agent or servant of the bank, but is a public officer sworn to discharge his duties properly. He is under a higher control than that of a private principal. He owes duties to the public which must be the supreme law of his conduct. Consequently when he acts in his official capacity, the bank no longer has control over him and cannot direct how his duties shall be done. If he is guilty of misfeasance in the performance of an official act, the bank is not liable.... That the notary is also an employee and agent of the bank does not alter the case. There is still a sharp dividing line between his duties as agent and his duties as a public officer. When his public service comes into play, his private service is for the time suspended.

Id. at 311-312, 14 S.E. 552.

An argument can be made that in today's world, large corporations that benefit from a notary employee's statutory violations should be vicariously responsible for those violations. Some states have adopted that position by statute. See, e.g., Fla. Stat. § 117.05(6) (“The employer of a notary public shall be liable to the persons involved for all damages proximately caused by the notary's official misconduct, if the notary public was acting within the scope of his or her employment at the time the notary engaged in the official misconduct.”). But the General Assembly has not done so, despite numerous revisions to Georgia's notary statutes over the years, including revisions that make clear that the legislature understands that notaries may work for banks and other corporations. See OCGA § 45-17-12(b) (authorizing “any notary public who is ... [an] employee of a bank or other corporation” to engage in most notarial acts regarding the corporation). To the contrary, our notary statutes recognize the view this Court took in May v. Jones that notaries are public officials whose duties to the public are superior to any private duties to their employers. See OCGA § 45-17-8(b)

697 S.E.2d 170

(“No notary shall be obligated to perform a notarial act if he feels such act is: (1) For a transaction which the notary knows or suspects is illegal, false, or deceptive; (2) For a person who is being coerced; (3) For a person whose demeanor causes compelling doubts about whether the person knows the consequences of the transaction requiring the notarial act; or (4) In situations which impugn and compromise the notary's impartiality....”); OCGA § 45-17-8(d) (“A notary public shall not execute a notarial certificate containing a statement known by the notary to be false nor perform any action with an intent to deceive or defraud.”).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...