Mitcham v. Blalock
| Decision Date | 22 September 1997 |
| Docket Number | Nos. S97A0857,S97A1656,s. S97A0857 |
| Citation | 268 Ga. 644,491 S.E.2d 782 |
| Parties | , 97 FCDR 3494 MITCHAM v. BLALOCK et al. MITCHAM v. BLALOCK. |
| Court | Georgia Supreme Court |
Robert H. McKnight, England & McKnight, Atlanta, for Michael Mitcham.
Bruce C. Bailey, Chambliss, Bahner & Stophel, P.C., Chattanooga, TN, John Wilson Ringo, Marietta, Angela G. Miele, Kutak Rock, Atlanta, for William J. Blalock et al.
In early 1987, appellant Michael Mitcham established an account at Atlanta Securities & Investments (ASI) and invested $46,000 through ASI and broker Jones. Jones bought and sold high-risk securities without Mitcham's authorization and made false statements to Mitcham when questioned about the activity on Mitcham's account. When Mitcham sought to close the account in August 1989, the broker admitted that all Mitcham's money had been lost. After he was unsuccessful in his attempts to resolve the problems with ASI's management, Mitcham hired present counsel and filed an arbitration claim with the National Association of Securities Dealers (NASD) in July 1990. The three arbitrators found ASI and Jones jointly and severally liable to Mitcham on his claims and awarded him $60,000. Appellees Blalock, Bradley, and Ringo (corporate officers or directors of ASI) were named as respondents in the arbitration matter, but they were dismissed by the arbitrators as defendants due to lack of notice. 1 The award against ASI and Jones was confirmed by the State Court of Fulton County.
In September 1991, Mitcham filed a complaint in the Superior Court of DeKalb County against Ingram and the three individuals who had been dismissed from the arbitration proceeding, Blalock, Bradley, and Ringo. Summary judgment was awarded the defendants, and the Court of Appeals affirmed the trial court's grant of summary judgment. Mitcham v. Blalock, 214 Ga.App. 29, 447 S.E.2d 83 (1994). Thereafter, Mitcham sought arbitration by filing a statement of claim against the foursome with the NASD. Acting on Ingram's motion, the trial court enjoined four of five counts of the arbitration proceeding on the grounds of res judicata and collateral estoppel. When Mitcham declined to recognize the applicability of Ingram's injunction to appellees Blalock, Ringo, and Bradley, the trio sought injunctive relief, and the trial court gave them the same relief previously given Ingram. It is from the issuance of the latter injunction that Mitcham appeals in S97A0857. 2
Eight days after Mitcham filed his notice of appeal from the trial court's grant of the injunction to appellees, appellee Blalock filed a motion under OCGA § 9-15-14 for assessment of attorney fees against Mitcham and his counsel. After the main appeal was docketed in this Court, the trial court granted the motion pursuant to subsections (a) and (b) of *784s 9-15-14, and ordered judgment in favor of Blalock for $4,242.74, with Mitcham and his attorney jointly and severally liable for the amount. Mitcham's appeal from the entry of the § 9-15-14 judgment is the basis for S97A1656.
1. We address first the main appeal, and our initial inquiry is whether the trial court had the power to enjoin arbitration proceedings. The Georgia Constitution authorizes a court to exercise "such powers as necessary ... to protect or effectuate its judgments ..." (1983 Ga. Const., Art. VI, Sec. I, Para. IV), and OCGA § 15-6-8 gives a superior court judge the authority to grant writs of injunction. We conclude that the trial court was empowered to protect the judgment it had entered in Mitcham's lawsuit against appellees by enjoining an arbitration proceeding on the grounds of res judicata and collateral estoppel.
2. Res judicata is statutorily defined as follows:
A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.
Jim West Housemovers v. Cobb County, 259 Ga. 314, 380 S.E.2d 251 (1989). As there is no question of identity of parties since the parties involved in the previous litigation are the same as those now involved in the second arbitration proceeding, we focus our attention on the matters put in issue or which might have been put in issue in the earlier litigation.
3. In the counts of the NASD arbitration "Statement of Claim" against appellees which were enjoined by the trial court, Mitcham alleged:
(1) that the appellees were jointly and severally liable to him for the amount of the NASD arbitration award against ASI and Jones since each appellee had the power to direct or cause the direction of the management and policies of ASI and Jones, and that each appellee had been stubbornly litigious in refusing to pay the award;
(3) that each appellee was a controlling person of Jones, as that term is used in OCGA § 10-5-14(c), making each liable for Jones's acts. Each appellee was also alleged to have been a control person over ASI who breached his duty to Mitcham by failing to supervise ASI employees;
(4) that appellees had neglected their obligations to monitor and supervise Mitcham's account and ASI employees, and violated NASD's Rule of Fair Practice; and
(5) that appellees had breached their fiduciary duties to Mitcham, imposed by the Rules of Fair Practice, by reason of appellees' relationship with Mitcham.
The first count mirrored the first count of the 1991 complaint filed in the superior court; the third and fourth counts were embodied in the seventh and eighth counts of the 1991 complaint; and the fifth count was raised in the seventh and tenth counts of the complaint. The trial court did not err when it grounded the grant of the motion for injunctive relief on the principles of res judicata.
4. In S97A1656, Mitcham seeks reversal of the trial court's order finding him and his attorney jointly and severally liable to Blalock under OCGA § 9-15-14(a) and (b) for $4242.74 in attorney fees and expenses of litigation.
Although OCGA § 5-6-35(a)(10) requires that an appeal of an award of attorney fees made pursuant to OCGA § 9-15-14 be preceded by the grant of a discretionary application, a direct appeal is permitted "when it is appealed as part of a judgment that is directly appealable." Haggard v. Bd. of Regents of the Univ. System, 257 Ga. 524(4a), 360 S.E.2d 566 (1987) (...
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