Zepp v. Toporek
| Decision Date | 04 November 1993 |
| Docket Number | Nos. A93A0989,s. A93A0989 |
| Citation | 211 Ga.App. 169,438 S.E.2d 636 |
| Parties | ZEPP v. TOPOREK et al. TOPOREK v. ZEPP. ALLSTATE INSURANCE COMPANY v. ZEPP. to A93A0991. |
| Court | Georgia Court of Appeals |
Middleton & Mixon, Richard H. Middleton, Jr., Savannah, Lynda G. Wilson, Atlanta, for Zepp.
Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Margie M. Eget, Mills & Moraitakis, Glenn E. Kushel, Atlanta, for Toporek.
Alston & Bird, Ronald L. Reid, Richard T. Fulton, Daniel A. Kent, Atlanta, for Allstate.
Amy Marie Zepp appeals from the trial court's order dismissing her complaint. Julian H. Toporek and Allstate Insurance Company have filed cross-appeals challenging other rulings by the trial court.
The appeal and cross-appeals arise from a settlement of a minor's claim for personal injuries reached over 20 years ago. After Amy Zepp was injured by a Sears delivery truck in Michigan in May 1972, a $75,000 settlement was negotiated with Sears' insurer, Allstate Insurance Company. This settlement represented $21,000 payable to the parents for medical expenses and loss of Amy's services and $54,000 for Amy's injuries.
Because Amy was a minor, Allstate retained Toporek to submit the settlement of her claim to the court of ordinary for approval. In the proceedings, Amy's father was appointed Amy's guardian and ultimately the court approved the settlement. Amy Zepp now maintains that Toporek's actions were improper because he represented both Allstate and the Zepps in this matter, and knowingly encouraged the Zepps to settle for an inadequate amount.
The settlement was deemed adequate apparently until Amy Zepp was 21 years old and was advised that because of her childhood injuries she could not have children unless she underwent a serious operation. This information allegedly caused her to believe that the settlement of her claim was inadequate and that the inadequate settlement resulted from Toporek's representation of both parties in the settlement.
Thereafter, she filed suit in Chatham County against Toporek and Allstate asserting claims based upon fraud, breach of fiduciary duty, and legal malpractice. Zepp, however, dismissed this complaint, and later refiled the complaint against both defendants in the Superior Court of Fulton County. The defendants moved to dismiss the complaint and, although the trial court denied defendants' motions to dismiss based on venue, jurisdiction over the person, subject matter jurisdiction, and failure to state a claim upon which relief can be granted for claims sounding in tort, the trial court granted their motions on claims based on contract because Amy Zepp was not privy to any of the contracts and any claims based on her reliance on other parties' performance of the contracts would sound in tort, not contract. The trial court also found that Amy Zepp lacked standing to bring a breach of contract action because the terms of the contract were performed fully, and that she could not assert a failure of consideration because a substantial sum was paid. The trial court further found that any claim for breach of fiduciary duty was a tort action.
The trial court then found that all of Amy's tort claims were for damages based upon personal injuries since she sought the damages she would have received but for the conduct of Toporek and Allstate. Hence, the court found the two-year statute of limitation for personal injury actions applied, and since Amy did not bring the claims within two years of her eighteenth birthday, the trial court found all the tort claims were time-barred.
Notwithstanding the dismissal of the action, both Toporek (Case No. A93A0990) and Allstate (Case No. A93A0991) have filed cross-appeals contending the trial court erred by denying their motions based upon subject matter jurisdiction and the three-year statute of limitation in OCGA § 9-11-60. Held:
1. As certain issues raised in the cross-appeals challenge the trial court's jurisdiction over the subject matter, we must first consider those issues because the judgment of the trial court would be void if the cross-appellants are correct. Contrary to the contentions of the cross-appellants, however, if we find the trial court was without subject matter jurisdiction, we cannot merely affirm the trial court under the right-for-any-reason rule, i.e., correct decisions of a trial court will not be reversed, regardless of the reasons stated. If the trial court was without subject matter jurisdiction, any judgment rendered was void, and the cross-appellants cannot waive the lack of subject matter jurisdiction. OCGA § 15-1-2; Langston v. Nash, 192 Ga. 427, 429, 15 S.E.2d 481.
(a) Both cross-appellants contend that Amy Zepp's complaint is merely an unauthorized collateral attack on the judgment of the Chatham Court of Ordinary, that any effort to set aside that judgment under our law must be brought in the court of rendition; that, in any event, the complaint was not brought within the time prescribed in OCGA § 9-11-60(f); and, further, that Zepp must first set aside the court of ordinary's judgment before this action can be maintained.
(b) As to Allstate, these contentions have merit. Zepp's claim against Allstate is an effort to increase the amount she received for her injuries caused by Sears' driver in 1972. Thus, the claims against Allstate seek to recover from the opposing parties' insurance company a sum greater than that which was approved by the court of ordinary's judgment.
Consequently, as to Allstate, the trial court erred by denying Allstate's motion to dismiss the complaint because this action is an unauthorized collateral attack on the judgment of the court of ordinary approving the settlement between the Zepps and Allstate's insureds. See Matthews Group & Assoc. v. Wages, 180 Ga.App. 151, 152-153, 348 S.E.2d 695; Shepherd v. Epps, 179 Ga.App. 685, 686, 347 S.E.2d 289. Under our law, a judgment not void on its face is subject to attack only by a direct proceeding in the court in which it was rendered. OCGA § 9-11-60(a), (b). Moreover, other than by direct appeal, OCGA § 9-11-60 is the exclusive means for obtaining relief from judgments. Cronic v. State of Ga., 172 Ga.App. 675, 677, 324 S.E.2d 533; Henry v. Adair Realty Co., 141 Ga.App. 182, 184, 233 S.E.2d 39. If one is dissatisfied with a judgment one does not merely file a new action against the other party or his counsel. Instead, one must attack the prior judgment directly. Matthews Group, supra; Shepherd, supra.
Therefore, Zepp was not authorized to maintain this action against Allstate in the Superior Court of Fulton County, and, moreover, as OCGA § 9-11-60(f) provides that such challenges must be brought within three years of the date of the judgment to be attacked, any action against Allstate would be time-barred.
Even though the three-year period did not begin to run until Zepp reached the age of majority (OCGA § 9-3-90), she reached that age on February 17, 1988, her eighteenth birthday. OCGA § 39-1-1(a). As the present action was not filed within three years of that date, it was untimely. Further, though the complaint alleges that Allstate committed fraud, the statute of limitation was not tolled because Zepp did not allege that such fraud deterred or debarred Zepp from bringing the action. Arnall, Golden & Gregory v. Health Svcs. Centers, 197 Ga.App. 791, 793, 399 S.E.2d 565. Accordingly, the trial court erred by denying Allstate's motion to dismiss the complaint on these grounds. Cronic v. State, supra.
(c)...
To continue reading
Request your trial
-
In re
...the settlement agreement is binding on Anderson as against any party to the agreement, including Norton.14 See Zepp v. Toporek, 211 Ga.App. 169, 438 S.E.2d 636 (1993). Consequently, the trial court did not err in granting Norton's motion for summary judgment on Anderson's claim that Norton ......
-
South v. Montoya, A00A0944.
...the running or tolling of the statute of limitation. Williams v. Fuller, supra at 849(3), 262 S.E.2d 135; Zepp v. Toporek, 211 Ga.App. 169, 172-173(2), 438 S.E.2d 636 (1993); Hight v. Blankenship, supra at 745, 406 S.E.2d 241. Once the trial court determines that service has not been perfec......
-
Jenifer v. Fleming, Ingram & Floyd. P.C.
...against their attorneys. See Peters v. Hyatt Legal Svcs., 211 Ga.App. 587, 590, 440 S.E.2d 222, 225 (1993) (citing Zepp v. Toporek, 211 Ga.App. 169, 172, 438 S.E.2d 636 (1993)). Plaintiff has presented evidence that he attempted to secure counsel in the two weeks remaining after he received......
-
Peters v. Hyatt Legal Services
...an adverse or unacceptable judgment must first set aside that judgment before proceeding against their attorneys." Zepp v. Toporek, 211 Ga.App. 169, 172, 438 S.E.2d 636 (1993). While there are clear distinctions that can be made between the prior judgment involved in Zepp and the judgment u......
-
Torts - Cynthia Trimboli Adams and Charles R. Adams, Iii
...171. Id. 172. Id. 173. Id. Accord, Holmes v. Drucker, 201 Ga. App. 687, 411 S.E.2d 728 (1991). 174. EVANS, supra note 157, at 24. 175. 211 Ga. App. 169, 438 S.E.2d 636 (1993). 176. Id. at 171, 438 S.E.2d at 639. 177. Id. at 170, 438 S.E.2d at 639. 178. Id. at 172, 438 S.E.2d at 640. Accord,......
-
Trial Practice and Procedure - C. Frederick Overby, Jason Crawford, and Teresa T. Abell
...Ga. App. 635, 638, 478 S.E.2d 451, 455 (1996); Collipp v. Newman, 217 Ga. App. 674, 675, 458 S.E.2d 701, 701-02 (1995); Zepp v. Toporek, 211 Ga. App. 169, 172, 438 S.E.2d 636, 640 (1993); Timberlake Grocery Co. v. Cartwright, 146 Ga. App. 746, 747, 247 S.E.2d 567, 568 (1978). The long arm v......
-
Domestic Relations
...Id. at 829, 846 S.E.2d at 140-41. 167. O.C.G.A. § 9-11-60 (2021).168. Id. at 830, 846 S.E.2d at 141 (citing Zepp v. Toporek, 211 Ga. App. 169, 171, 438 S.E.2d 636, 639 (1993)).169. See O.C.G.A. § 9-11-58(b) (2021).170. Id. at 832-33, 846 S.E.2d at 143 (citing O.C.G.A § 9-11-5 (2021)) (McFad......