Perez v. Atlanta Check Cashers Inc

• Decision Date: 17 March 2010
• Docket Number: No. A09A2114.,A09A2114.
• Citation: Perez v. Atlanta Check Cashers, Inc., 302 Ga.App. 864, 692 S.E.2d 670 (Ga. App. 2010)
• Parties: PEREZv.ATLANTA CHECK CASHERS, INC., et al.
• Court: Georgia Court of Appeals

302 Ga.App. 864

692 S.E.2d 670

PEREZv.ATLANTA CHECK CASHERS, INC., et al.

No. A09A2114.

Court of Appeals of Georgia.

March 17, 2010.

COPYRIGHT MATERIAL OMITTED

Martin & Martin, Kimberly N. Martin, Thomas F. Martin; Taylor, English & Duma, John M. Gross, Corey N. Cutter, Atlanta, for appellant.

Gray, Rust, St. Amand, Moffett & Brieske, L.L.P., Harvey S. Gray, Michael D. St. Amand, Monica L. Wingler; Goodman, McGuffey, Lindsey & Johnson, Robert M. Darroch, Summer J. Hughes, Jonathan A. Weintraub, Atlanta, for appellees.

BERNES, Judge.

Julian Perez appeals from the trial court's denial of his motion for class certification in this action filed against his former employer Atlanta Check Cashers, Inc.(“Atlanta Check”), and several other defendants, alleging claims for identity fraud, conspiracy to commit identity fraud, invasion of privacy, and violation of the Georgia Racketeer Influenced and Corrupt Organizations Act(“RICO”).Because there was some evidence to support the trial court's finding that individual factual issues would predominate over any common issues the class might share, the trial court did not abuse its discretion in denying class certification.

The record shows that Atlanta Check employed Perez as a customer service representative from May 2006 to November 2007.Perez's duties included cashing customer checks, making bill payments for customers, sending money orders for customers, selling lottery tickets, and selling property and casualty insurance products.The insurance products were offered and sold to customers through Atlanta Check's business arrangement with its affiliate, Super Auto Insurance Agency, Inc.Under the arrangement, Atlanta Check employees would become licensed limited subagents for Super Auto so that they would be authorized to sell the insurance products to customers under Georgia law.

Georgia law forbids a person from selling, soliciting, or negotiating insurance for any class of insurance unless that person is properly licensed as an agent for that class of insurance in accordance with the Georgia Code and applicable regulations.SeeOCGA § 33-23-4(a).However, a person can become a “limited subagent” under the sponsorship of a licensed insurance agent by making proper application to the Georgia Commissioner of Insurance (the “Commissioner”).SeeOCGA § 33-23-12(a);Ga. Comp. R. & Regs. r. 120-2-3-.31(2009).As part of the application process for becoming a limited subagent, the applicant must complete a form questionnaire in which he or she provides a social security number and other personal identifying information, sign his or her name, and have the signature notarized; have his or her sponsoring agent complete and sign a “Sponsor's Certification”; and submit a certificate reflecting that he or she has completed 20 hours of instruction in an approved prelicensing course.SeeGa. Comp. R. &Regs. rr. 120-2-2-.14(1)(d), (e); 120-2-3-.08(2);120-2-3-.31(2)(d).After obtaining a limited subagent license, the applicant may renew the license annually, provided, among other things, that he or she submits evidence of at least five hours of continuing education (“CE”) each year.SeeGa. Comp. R. & Regs. r. 120-2-3-.31(5).

Perez was not aware that Georgia law requires that an individual be licensed to sell insurance.After his employment with Atlanta Check was terminated for unrelated reasons, Perez learned for the first time that on July 5, 2007, Super Auto had submitted an application for a limited subagent license in his name to the Commissioner.The application listed his name, birth date, and social security number, and provided as his business address the street address of the Atlanta Check location where he worked.The application contained Perez's purported signature and was notarized by an Atlanta Check employee.The application included a “Sponsor's Certificate” and a “ Certificate of Completion” averring that in June 2007, Perez had completed a 20-hour prelicensing course taught by H. David Emmet, the owner of Spare Time, Inc.

According to Perez, he did not complete the subagent application that was submitted in his name or authorize anyone to complete it for him, did not consent to the release of his personal identifying information contained in the application, and did not sign the application.He claimed that his purported signature on the application was not in fact his signature.Perez further maintained that he had never met his purported sponsoring agent.Lastly, he asserted that he never attended the 20-hour prelicensing course referenced in the Certificate of Completion.

Perez thereafter sued Atlanta Check, Super Auto, Emmet, and Spare Time, individually and on behalf of a class of former and current Atlanta Check employees.¹The potential class was defined as

those similarly situated former and current employees of [Atlanta Check] whose identifying information was intentionally, wilfully and fraudulently without authorization or consent, created, used or possessed with intent to fraudulently use, by [the defendants] in any filings with the [Commissioner].

(Emphasis supplied.)The complaint alleged that the personal identifying information of Perez and the putative class members had been obtained, used, and submitted to the Commissioner without permission in falsified and forged documentation as part of a conspiracy to evade the proper subagent licensing process.The complaint sought monetary damages as well as declaratory and injunctive relief and set out claims for identity fraud, OCGA §§ 16-9-121(a)(1),16-9-130(a); conspiracy to commit identity fraud, OCGA § 16-9-122; invasion of privacy for misappropriation of name and likeness; and violation of Georgia RICO,OCGA § 16-14-1 et seq.

Following discovery on the class certification issue, Perez introduced into the record limited subagent license applications and corresponding certifications regarding prelicensing courses that Super Auto had submitted to the Commissioner for 196 former and current Atlanta Check employees.Perez also introduced evidence regarding the state-required CE courses allegedly taken by many of those employees that had been submitted to the Commissioner.Perez contended that these former and current Atlanta Check employees were members of the potential class and moved for class certification of the monetary damages claims under OCGA § 9-11-23(b)(3)(“Rule 23”).He also moved for certification of the claims for declaratory and injunctive relief under Rule 23(b)(2).

After conducting an evidentiary hearing, the trial court denied the motion for class certification.The trial court found that the factual issue of whether the limited subagent license applications and other documentation had been submitted to the Commissioner without the authorization or consent of the Atlanta Check employees could not be established “without providing a great deal of individualized proof, thereby negating the purpose and function of class certification.”Based upon this finding, the trial court concluded that class certification was inappropriate because individual factual issues would predominate over any common factual issues.²This appeal followed.

Perez contends that the trial court abused its discretion in declining to certify the monetary damages claims under Rule 23(b)(3).³We disagree.

The requirements for certifying a class are set forth in OCGA § 9-11-23.SeePeck v. Lanier Golf Club,298 Ga.App. 555, 556-557, 680 S.E.2d 595(2009).The burden is on the named plaintiff to demonstrate that the prerequisites for class certification have been satisfied.SeeCarnett's, Inc. v. Hammond,279 Ga. 125, 127(3), 610 S.E.2d 529(2005).“A trial court may deny class certification where a plaintiff fails to establish even one of the required Rule 23 factors,”Roland v. Ford Motor Co.,288 Ga.App. 625, 628(1), 655 S.E.2d 259(2007), and we will affirm the trial court's decision absent an abuse of discretion.Seeid. at 627, 655 S.E.2d 259.A trial court's denial of class certification, moreover, will be affirmed if right for any reason.SeeDuffy v. The Landings Assn.,254 Ga.App. 506, 509(1), 563 S.E.2d 174(2002).

Before claims can be certified for class adjudication under Rule 23(b)(3), the plaintiff must show, among other things, that there are questions of law and fact common to the class members which predominate over any individual questions.Common issues of fact and law predominate if they have a direct impact on every class member's effort to establish liability and on every class member's entitlement to injunctive and monetary relief.Where, after adjudication of the classwide issues, plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims, such claims are not suitable for class certification under Rule 23(b)(3).

(Citations and punctuation omitted.)Rollins, Inc. v. Warren,288 Ga.App. 184, 186-187(1), 653 S.E.2d 794(2007).“[A] common question is not enough when the answer may vary with each class member and is determinative of whether the member is properly part of the class.”(Emphasis in original.)Carnett's, Inc.,279 Ga. at 129(4), 610 S.E.2d 529.See alsoTanner v. Brasher,254 Ga. 41, 45(2), 326 S.E.2d 218(1985)(“Where the resolution of individual questions plays ... an integral part in the determination of liability, a class action suit is inappropriate.”).

There was some evidence to support the trial court's determination that individual factual issues would predominate in this case.As the trial court pointed out, and Perez does not dispute, all of his claims require proof that the limited subagent license applications and other documentation were submitted to the Commissioner without the authorization or consent of the former and current Atlanta Check employees who are the proposed class members.SeeOCGA § 16-9-121(a)(1)(“A person commits the...