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title-23•Title 23 — Equity
Official Code of Georgia Annotated — Title 23. Equity
Snapshot of the Georgia code as mirrored by FindLaw, current as of 2024-03-28.
All equity jurisdiction shall be vested in the superior courts of the several counties and in the Georgia State-wide Business Court as provided in Code Section 15-5A-3.
Generally, equity jurisprudence embraces the same matters of jurisdiction and modes of remedy as were allowed and practiced in England.
Equity jurisdiction is established and allowed for the protection and relief of parties where, from any peculiar circumstances, the operation of the general rules of law would be deficient in protecting from anticipated wrong or relieving for injuries done.
Equity will not take cognizance of a plain legal right where an adequate and complete remedy is provided by law; but the mere privilege of a party to bring an action at law or the existence of a common-law remedy not as complete or effectual as the equitable relief shall not deprive equity of jurisdiction.
Where law and equity have concurrent jurisdiction, whichever first takes jurisdiction shall retain it, unless a good reason shall be given for the interference of equity.
Equity is ancillary, not antagonistic, to the law; hence, equity follows the law where the rule of law is applicable and follows the analogy of the law where no rule is directly applicable.
Equity seeks always to do complete justice. Hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject matter of the action, provided the court has jurisdiction for that purpose.
Equity considers that done which ought to be done and directs its relief accordingly.
In many cases, equality is equity in the distribution of equitable assets.
He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action.
Where equities are equal, the law shall prevail. If equities are unequal, the superior equity shall prevail. Superior diligence as to time will create such inequality.
The equity of a party who has been misled is superior to that of the person who willfully misleads such party.
The equity under trust or contract for value is superior to that of a mere volunteer.
When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss.
When both parties are equally at fault, equity will not interfere but will leave them where it finds them. The rule is otherwise if the fault of one decidedly overbalances that of the other.
He who takes with notice of an equity takes subject to that equity.
Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led. Ignorance of a fact due to negligence shall be equivalent to knowledge in fixing the rights of parties.
Decrees ordinarily bind only parties and their privies; but a pending action shall be a general notice of an equity or claim to all the world from the time the action is filed and docketed. If the same is duly prosecuted and is not collusive, one who purchases pending the final outcome of the litigation shall be affected by the decree rendered therein.
If one with notice sells to one without notice, the latter shall be protected. If one without notice sells to one with notice, the latter shall be protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value.
A bona fide purchaser for value without notice of an equity will not be interfered with by equity.
Equity will not force persons to litigate in order to have done what they ought to do and are willing to do voluntarily.
A diligent creditor shall not needlessly be interfered with in the prosecution of his legal remedies.
Where the rules of construction will allow, equity seeks always to construe conditions subsequent into covenants and to relieve against forfeitures.
A case of election arises whenever a person is entitled to one of two benefits, to each of which he has legal title; but the enforcement of both would be unconscionable and inequitable to others having claims upon the same property or fund. In such cases equity may compel an election.
Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, even when no legal limitation bars the right.
Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify equity in setting aside a sale or other contract.
In cases of lost bonds or negotiable securities, the court may decree that payment shall be made, provided indemnity is given against liability or loss resulting from such payment.
An accident relievable in equity is an occurrence, not the result of negligence or misconduct of the party seeking relief in relation to a contract, as was not anticipated by the parties when the contract was entered into, which gives an undue advantage to one of them over another in a court of law.
(a) A mistake relievable in equity is some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.
(b) Mistakes may be either of law or of fact.
(c) The power to relieve mistakes shall be exercised with caution; to justify it, the evidence shall be clear, unequivocal, and decisive as to the mistake.
An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when the mistake operates as a gross injustice to one and gives an unconscionable advantage to the other, may be relieved in equity.
A mistake of law by the draftsman or other agent, by which the contract, as executed, does not fulfill or violates the manifest intention of the parties to the agreement, may be relieved in equity.
In all cases of a mistake of fact material to the contract or other matter affected by it, if the complaining party applies within a reasonable time, equity will grant relief.
If the form of conveyance is, by accident or mistake, contrary to the intention of the parties in their contract, equity shall interfere to make it conform thereto.
Accident or mistake in the execution of a power or causing the defective execution of the power will be remedied in equity.
Mere ignorance of the law on the part of the party himself, where the facts are all known and there is no misplaced confidence and no artifice, deception, or fraudulent practice is used by the other party either to induce the mistake of law or to prevent its correction, shall not authorize the intervention of equity.
Ignorance of a fact by both parties shall not justify the interference of equity; nor shall a mistake in judgment or opinion merely as to the value of property authorize such interference.
If a party, by reasonable diligence, could have had knowledge of the truth, equity shall not grant relief; nor shall the ignorance of a fact known to the opposite party justify an interference if there has been no misplaced confidence, misrepresentation, or other fraudulent act.
A distinction exists between reforming a contract and executing a contract in case of mistake. To authorize the former, the court shall be satisfied by the evidence that the mistake was mutual; but the court may refuse to act in the latter case if the mistake is confined to the party refusing to execute.
Equity will not reform a written contract unless the mistake is shown to be the mistake of both parties; but it may rescind and cancel upon the ground of mistake of fact material to the contract of one party only.
(a) The negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence, the absence of which would be a violation of legal duty.
(b) Relief may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.
Equity will not interfere to relieve against accidents or mistakes of mere volunteers; but, if a contract is actually executed, all the rights growing out of it against or in favor of any one will be enforced.
Equity will grant relief as between the original parties or their privies in law, in fact, or in estate, except bona fide purchasers for value without notice.
In all cases of fraud, except fraud in the execution of a will, equity has concurrent jurisdiction with the law.
(a) Fraud may be actual or constructive.
(b) Actual fraud consists of any kind of artifice by which another is deceived. Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.
(c) Actual fraud implies moral guilt; constructive fraud may be consistent with innocence.
Misrepresentation of a material fact, made willfully to deceive or recklessly without knowledge and acted on by the opposite party or made innocently and mistakenly and acted on by the opposite party, constitutes legal fraud.
Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.
Anything which happens without the agency or fault of the party affected by it, tending to disturb and confuse his judgment or to mislead him, of which the opposite party takes an undue advantage, is in equity a surprise and is a form of fraud for which relief is granted.
Any attempt to encroach upon the business of a trader or other person by the use of similar trademarks, names, or devices, with the intention of deceiving and misleading the public, is a fraud for which equity will grant relief.
Fraud may be consummated by signs or tricks, or through agents employed to deceive, or by any other unfair way used to cheat another.
Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.
Any relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners; principal and agent; guardian or conservator and minor or ward; personal representative or temporary administrator and heir, legatee, devisee, or beneficiary; trustee and beneficiary; and similar fiduciary relationships.
Where, by the act or consent of parties or the act of a third person or of the law, one person is placed in such relation to another that he becomes interested for him or with him in any subject or property, he is prohibited from acquiring rights in that subject or property which are antagonistic to the person with whose interest he has become associated.
Fraud will authorize equity to annul conveyances, however solemnly executed.
Equity jurisdiction over matters of account shall extend to:
(1) Mutual accounts growing out of privity of contract;
(2) Cases where accounts are complicated and intricate;
(3) Cases where a discovery or writ of ne exeat is prayed and granted;
(4) Cases where the account is of a trust fund;
(5) Accounts between partners or tenants in common; and
(6) Cases where a multiplicity of actions would render a trial difficult, expensive, and unsatisfactory at law.
In cases of joint, joint and several, or several liabilities of two or more persons, where all are equally bound to bear the common burden and one has paid more than his share, he shall be entitled to contribution from the others; and whenever the circumstances are such that an action at law will not give a complete remedy, equity may entertain jurisdiction.
Apportionment of a contract or of rent or hire may, from peculiar circumstances rendering the common-law remedy incomplete, become the subject of equitable jurisdiction.
Where several persons are interested in an estate as tenants for years, or for life, or in remainder or reversion, and encumbrances are to be discharged, the equitable division of the burden, according to the several interests, shall be a question for equitable interference.
If a party who has charge of the property of others shall so confound it with his own that the line of distinction cannot be drawn, all the inconvenience shall be thrown upon him who causes the confusion; and he shall distinguish his own property or lose it.
A petition for an accounting need not offer to pay a balance if found against the complainant.
Regarding a setoff, equity generally follows the law; but, if there is an intervening equity not reached by the law or if the setoff is of an equitable nature, equity shall take jurisdiction to enforce the setoff.
(a) Assets are either legal or equitable. Legal assets are such as may be reached by the ordinary process of law. Equitable assets are such as can be reached only through the intervention of equity.
(b) Legal assets, when properly before the court, shall be distributed according to legal liens and priorities. Equitable assets shall be distributed according to justice and right in the particular case, the general rule being that equality is equity.
(c) Sometimes assets are partly legal and partly equitable. In such cases, while the above rule shall be adhered to as to the legal assets, equity shall so administer the equitable assets as to produce general equality.
Equity will not interfere with the regular administration of estates, except upon:
(1) Application of the representative:
(A) For construction and direction; or
(B) For marshaling the assets; or
(2) Application of any person interested in the estate where there is danger of loss or other injury to his interests.
In cases of difficulty in construing wills, in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, the representative may ask the direction of the court, but not on imaginary difficulties or from excessive caution.
In all cases where legal difficulties arise as to the distribution of assets in payment of debts or where from any circumstances the ordinary process of law would interfere with the due administration of an estate, without fault on the part of the representative of the estate, a petition to marshal the assets shall be maintained at the instance of the representative.
In marshaling assets, the court shall look to the equities of the creditors and, where cases arise for election, shall compel the parties to elect.
Creditors' petitions may be filed at the instance of any creditor, the privilege being extended to all to appear and become parties within a reasonable time.
Equitable assets may be reached by a creditor in every case where he shows that there is danger of not being satisfied out of legal assets.
(a) In all equity cases in which assets of either or both parties are being administered, marshaled, or otherwise disposed of by the court, upon motion of either party or of the court at least 60 days before the term for trial, an order shall be passed bearing the title of the case and addressed to all persons concerned, requiring all persons claiming an interest in the assets to intervene in the case by not later than a certain date to be fixed by the court. The date shall be not less than 60 days nor more than 90 days from the date on which the order is filed. After filing, the order shall be published twice each month for two consecutive months in the official organ for legal advertisements in the county in which the case is pending.
(b) After the passage of the last date for intervention fixed in the published order, no person interested in the assets of the case shall be allowed to intervene.
Joint assets shall be applied to joint debts, and individual assets to individual debts; but, when the joint assets are exhausted, the joint debts may come upon individual assets, the individual debts, without regard to relative dignity as compared with the joint debts, being first advanced the pro rata amount received on the joint debts from joint assets.
Powers, especially of appointment, being always founded on trust or confidence, are peculiarly subjects of equitable supervision.
Equity may not compel a party, having a discretion, to exercise a power of appointment.
In all cases where no discretion is allowed or the discretion allowed is abused, equity may compel a faithful execution of the power.
(a) As used in this Code section, the term:
(1) “Collusive execution” means every execution whereby the person exercising a power uses it by contrivance for his own benefit, he not being legitimately an intended beneficiary.
(2) “Illusory appointment” means an appointment whereby a nominal benefit only is given to one of a class, to all of whom a substantial benefit was intended.
(b) Equity may relieve against mistaken or defective executions, collusive executions, and illusory appointments.
Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised. In the absence of stipulations to the contrary in the instrument, the time, place, and manner of sale shall be that pointed out for public sales. Unless the instrument creating the power specifically provides to the contrary, a personal representative, heir, heirs, legatee, devisee, or successor of the grantee in a mortgage, deed of trust, deed to secure debt, bill of sale to secure debt, or other like instrument, or an assignee thereof, or his personal representative, heir, heirs, legatee, devisee, or successor may exercise any power therein contained; and such powers may so be exercised regardless of whether or not the transfer specifically includes the powers or conveys title to the property described. A power of sale not revocable by death of the grantor or donor may be exercised after his death in the same manner and to the same extent as though the grantor or donor were in life; and it shall not be necessary in the exercise of the power to advertise or sell as the property of the estate of the deceased nor to make any mention of or reference to the death.
Unless expressly limited in a will, deed, or other instrument creating a power of sale or unless specifically otherwise provided in such instrument, a power of sale conferred upon an executor, trustee, guardian, or attorney in fact shall authorize a private sale by the executor, trustee, guardian, or attorney in fact, with or without advertisement and on such terms and conditions as the donee of the power may deem advisable, without the necessity of applying for leave to sell or obtaining any order therefor from any court; provided, however, that this Code section shall not apply to powers of sale in security deeds, mortgages, trust deeds, bills of sale, and other instruments conveying property or creating a lien thereon, to secure a debt or debts.
Unless expressly limited in an instrument creating a power of sale or unless specifically otherwise provided in the instrument, the power of sale conferred upon an executor, trustee, or guardian may be exercised and executed by an administrator with the will annexed or by a successor administrator, trustee, or guardian. If the power is conferred upon more than one executor, trustee, or guardian, the surviving or remaining executor or executors, trustee or trustees, or guardian or guardians may exercise and execute the power.
Any person holding a power of appointment, general or special, whether exercisable by deed or by will only or otherwise, and whether reserved by the holder of the power or conferred upon him by another, may, as to all or any part of the property covered by the power of appointment, release or relinquish the power completely, or may release or relinquish the right to exercise the power except among a limited class set out in the release or relinquishment, or may covenant that the power will be exercised only in favor of the members of a limited class; and any such release, relinquishment, or covenant executed and delivered as provided in Code Sections 23-2-118 and 23-2-119 shall be valid and binding, whether with or without a consideration, provided that no such release, relinquishment, or covenant shall have the effect of permitting the property to be appointed to a person not permitted by the original power.
Any release, relinquishment, or covenant referred to in Code Section 23-2-117 shall be in writing, signed by the person holding the power, and delivered to anyone interested in the power, including any person in the limited class, or to any fiduciary holding the property or any part thereof, or recorded in the office of the clerk of the superior court of the county in which the property or any part thereof is located.
No fiduciary holding or distributing any property subject to a power of appointment as referred to in Code Section 23-2-117 shall be deemed to have notice of the release, relinquishment, or covenant or be bound thereby unless and until a copy thereof is delivered to the fiduciary. No bona fide purchaser purchasing the property shall be affected by the release, relinquishment, or covenant unless he has notice thereof or unless the release, relinquishment, or covenant has been recorded in the office of the clerk of the superior court of the county in which the property is located.
Code Sections 23-2-117 through 23-2-119 are declaratory of existing law and apply to all such releases, relinquishments, and covenants, whenever executed.
Specific performance of a contract, if within the power of the party, will be decreed, generally, whenever the damages recoverable at law would not be an adequate compensation for nonperformance.
(a) The specific performance of a parol contract as to land shall be decreed if the defendant admits the contract or if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandoned he could not be restored to his former position.
(b) Full payment alone accepted by the vendor, or partial payment accompanied with possession, or possession alone with valuable improvements, if clearly proved in each case to have been done with reference to the parol contract, shall be sufficient part performance to justify a decree.
Specific performance will not be decreed of a voluntary agreement or merely gratuitous promise. If, however, possession of lands has been given under such an agreement, upon a meritorious consideration, and valuable improvements have been made upon the faith thereof, equity will decree the performance of the agreement.
Mere inadequacy of price, though not sufficient to rescind a contract, may justify a court in refusing to decree a specific performance, as may any other fact showing the contract to be unfair, unjust, or against good conscience.
The vendor seeking specific performance shall show an ability to comply substantially with his contract in every part and as to all the property. However, a vendor's want of title or other inability as to part of the property shall not be a good answer to the vendee seeking performance who is willing to accept title to part of the property, receiving compensation for the other part. If the defects in the vendor's title are trifling or comparatively small, equity shall decree at his instance, granting compensation for such defects.
If, for any cause, specific performance is impossible or if the vendee declines to accept a performance in part, the court may proceed to assess damages for the breach of the contract.
Any good reason in equity and good conscience why the complainant should have the possession of specific personalty to which he has title shall sustain an action for specific performance or delivery and, unless rebutted by other equitable reasons, shall justify a decree. The jury in such cases may decree either damages or specific delivery.
The superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal, equitable, or both, and apply remedies or relief, legal, equitable, or both, in favor of either party, as the nature of the case may allow or require.
Any person may, in any civil action, claim equitable relief by appropriate and sufficient pleadings and obtain the equitable relief proper in the case.
A person who asserts a claim for equitable relief may at any time, by proper pleading and proof, also apply for and obtain any of the extraordinary remedies available from the court in its exercise of equitable powers.
Any defendant may, by proper pleadings and sufficient evidence, obtain the benefit of extraordinary remedies allowed in equitable proceedings by the superior court.
The writ of ne exeat shall issue to restrain a person from leaving the jurisdiction of the state. The writ may be granted in the following cases:
(1) In favor of an obligor, promisor, or partner, against his co-obligor, joint promisor, or copartner equally or partly responsible with him for any duty to be performed;
(2) Against persons illegally removing the property of a decedent or of a minor, at the instance of any person interested therein, or of a next friend of the minor;
(3) At the instance of a remainderman or reversioner against anyone attempting to remove the property in which the remainder or reversion exists or may contingently exist;
(4) At the instance of a mortgagee against a person holding the equity of redemption;
(5) At the instance of any person interested legally or equitably in property about to be removed, where no adequate remedy is afforded at law.
In every case of application for a writ of ne exeat, the complaining party shall show that no adequate remedy is afforded at law, and that the defendant is removing or about to remove himself, his property, or the specific property to which the complainant claims title or an interest.
(a) In every application for a writ of ne exeat, the petition or motion must be verified by one or more of the complainants.
(b) The judge may, in his discretion, require the complainant to give bond and security for the payment of any damages which the defendant may recover from him for obtaining the writ, before granting an order for the issuing of the same, and may require a verification by all or any of the complainants.
The defendant may relieve himself, his property, or the specific property from the restraint imposed by giving bond in double the value of plaintiff's claim, with good security, to the officer serving the process, for the forthcoming of each or either, according to the tenor of the writ, to answer to complainant's claim or abide by the order and decree of the court. The judge granting the writ may, in his discretion, require a larger bond. An officer receiving insufficient security shall be held surety himself, and the sureties on his bond may be held responsible therefor.
If the defendant fails or refuses to replevy the property, the court may, in its discretion, make such disposition of it as shall appear most advantageous to all parties.
In cases of emergency, upon the affidavit of the complainant that he cannot obtain the sanction of the judge in time to remedy the mischief, the writ of ne exeat may issue at once, to continue until the first term of the court to which it is returnable, unless earlier heard by order of the judge.
The proceeding quia timet is sustained in equity for the purpose of causing to be delivered and canceled any instrument which has answered the object of its creation or any forged or other iniquitous deed or other writing which, though not enforced at the time, either casts a cloud over the complainant's title or otherwise subjects him to future liability or present annoyance, and the cancellation of which is necessary to his perfect protection.
(a) In all proceedings quia timet or proceedings to remove clouds upon titles to real estate, if a proper case is made, the relief sought shall be granted to any complainant irrespective of whether the invalidity of the instrument sought to be canceled appears upon the face of the instrument or whether the invalidity appears or arises solely from facts outside of the instrument.
(b) In such cases the costs shall be taxed against the litigants in the discretion of the court.
An instrument which, by itself or in connection with proof of possession by a former occupant or other extrinsic facts, gives the claimant thereunder an apparent right in or to the property may constitute a cloud on the title of the true owner; and the latter may proceed to have the same removed upon proof:
(1) That he cannot immediately or effectually maintain or protect his rights by any other course of proceeding open to him;
(2) That the instrument sought to be canceled is such as would operate to throw a cloud or suspicion upon his title and might be vexatiously or injuriously used against him;
(3) That he either suffers some present injury by reason of the hostile claim of right or, though the claim has not been asserted adversely or aggressively, he has reason to apprehend that the evidence upon which he relies to impeach or invalidate the same as a claim upon his title may be lost or impaired by lapse of time.
At the option of the complainant as prayed for in the complaint, the court, upon receipt of the complaint, shall submit the same to a special master as provided for in Code Sections 23-3-63 through 23-3-68, except that as in other equity cases there shall be no right to a jury trial.
Proceedings quia timet may be used to remove clouds on title caused by equities of redemption following tax sales; provided, however, that the length of time for redemption shall remain as provided by law and nothing in this Code section shall preclude the necessity of giving all parties at interest notice of this proceeding.
The purpose of this part is to create a procedure for removing any cloud upon the title to land, including the equity of redemption by owners of land sold at tax sales, and for readily and conclusively establishing that certain named persons are the owners of all the interests in land defined by a decree entered in such proceeding, so that there shall be no occasion for land in this state to be unmarketable because of any uncertainty as to the owner of every interest therein.
Any person, which term shall include a corporation, partnership, or other association, who claims an estate of freehold present or future or any estate for years of which at least five years are unexpired, including persons holding lands under tax deeds, in any land in this state, whether in the actual and peaceable possession thereof or not and whether the land is vacant or not, may bring a proceeding in rem against all the world to establish his title to the land and to determine all adverse claims thereto or to remove any particular cloud or clouds upon his title to the land, including an equity of redemption, which proceeding may be against all persons known or unknown who claim or might claim adversely to him, whether or not the petition discloses any known or possible claimants.
(a) The proceeding in rem shall be instituted by filing a petition in the superior court of the county in which the land is situated.
(b) The petition shall be verified by the petitioner and shall contain a particular description of the land to be involved in the proceeding, a specification of the petitioner's interest in the land, a statement as to whether the interest is based upon a written instrument (whether same be a contract, deed, will, or otherwise) or adverse possession or both, a description of all adverse claims of which petitioner has actual or constructive notice, the names and addresses, so far as known to the petitioner, of any possible adverse claimant, and, if the proceeding is brought to remove a particular cloud or clouds, a statement as to the grounds upon which it is sought to remove the cloud or clouds.
(c) With the petition there shall be filed (1) a plat of survey of the land, (2) a copy of the immediate instrument or instruments, if any, upon which the petitioner's interest is based, and (3) a copy of the immediate instrument or instruments of record or otherwise known to the petitioner, if any, upon which any person might base an interest in the land adverse to the petitioner.
(d) Upon the filing of the petition, the petitioner shall contemporaneously file with the clerk of the court a notice for record in the lis pendens docket pursuant to Code Sections 44-14-610 through 44-14-613.
The court, upon receipt of the petition together with the plat and instruments filed therewith, shall submit the same to a special master who shall be a person who is authorized to practice law in this state and is a resident of the judicial circuit wherein the action is brought.
The master shall examine the petition, plat, and all documents filed therewith and may require other evidence to be filed, including, but not limited to, an abstract of title.
(a) Upon the filing of all evidence with him, the master shall:
(1) Determine who is entitled to notice, including, but not limited to, all adjacent landowners and all adverse claimants as to whose adverse claims petitioner has actual or constructive notice;
(2) Cause process to issue, directed to all persons who are entitled to notice and to all other persons whom it may concern.
(b) Process shall be served upon known persons whose residence is ascertainable by the sheriff or his deputy as provided by law. In all cases where service by publication is permitted under the laws and where the respondent or other party resides outside this state or whose residence is unknown and it is necessary to perfect service upon such person by publication, upon the fact being made to appear to the judge or clerk of the court in which the action is pending, the judge or clerk may order service to be perfected by publication in the paper in which sheriffs' advertisements are printed, four times within the ensuing 30 days, publications to be weekly. The published notice shall contain the name of the petitioner and respondent with a caption setting forth the court, the character of the action, the date the action was filed, the date of the order for service by publication, and a notice directed and addressed to the party to be thus served, commanding him to be and appear at the court in which the action is pending within 30 days of the date of the order for service by publication, and shall bear teste in the name of the judge and shall be signed by the clerk of the court. The date upon which the nonresident or party whose residence is unknown is called upon to appear shall be the appearance day of the case.
(c) Any adverse party shall be entitled to have at least 30 days after completion of service to file any pleading he desires in the matter before the court.
(d) If, upon the filing of the petition or of the evidence required by him, the master finds that there are persons under a disability, or minors, or persons not in being, unascertained, or unknown who may have an interest, he shall appoint a disinterested person, in the nature of a guardian ad litem, who shall be served with copies of the notice prescribed and who shall represent these interests.
Upon reasonable notice to the parties, after proof of serving notice as required by this article has been filed and after the appointment of the disinterested person as representative where required, the special master shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner's title and all other interests in the land, or any part thereof, which may be adverse to the title claimed by the petitioner, or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge of the court; provided, however, any party to this proceeding may demand a trial by a jury of any question of fact; provided, further, that the master on his own initiative may require a trial by a jury of any question of fact.
Upon the receipt of the master's report or upon a jury verdict, the court shall issue a decree which shall be recorded in the office of the clerk of the superior court of the county or counties wherein the land affected lies and which, when recorded, shall operate to bind the land affected according to the tenor thereof and shall be conclusive upon and against all persons named therein, known or unknown. A marginal reference to the recorded judgments and decree shall be entered upon any recorded instrument stated to be affected thereby.
The court shall fix a reasonable compensation, not less than $50.00, to be paid to the master appointed under this part and shall fix the compensation to be paid to any representative in the nature of a guardian ad litem appointed under this part. These fees are to be taxed in the discretion of the court as a part of the costs.
At any time within 30 days from the entering of the final decree, any person not previously a party who claims an interest in the land may intervene, in which event the case shall be reopened as to that party so that his rights may be adjudicated.
(a) Two or more persons having separate and distinct parcels of land in the same county and holding under the same source of title or persons having separate and distinct interests in the same parcel or parcels may join in a petition under this part against the same supposed claimants.
(b) A petitioner may join separate causes of action in one petition; but, if they cannot be conveniently disposed of together, the court may order separate trials.
This part shall be liberally construed.
The remedy provided by this part is intended to be cumulative and not exclusive.
All municipalities, counties, and housing authorities shall have standing pursuant to this article.
(a) Whenever a person is possessed of property or funds or owes a debt or duty, to which more than one person lays claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead.
(b) If the person bringing the action has to make or incur any expenses in so doing, including attorney's fees, the amount so incurred shall be taxed in the bill of costs, under the approval of the court, the court in its discretion determining the amount of the attorney's fees, and shall be paid by the parties cast in the action as other costs are paid.
Every petition for interpleader shall be verified and shall show that the petitioner is not in collusion with any party claiming the property.
If, in the progress of any proceeding in equity, the court perceives the necessity for parties to interplead, it may order such interpleader as collateral and ancillary to the main case.
(a) It being the interest of this state that there shall be an end of litigation, equity will entertain a bill of peace:
(1) To confirm some right which has been previously satisfactorily established by more than one legal trial and is likely to be litigated again;
(2) To avoid a multiplicity of actions by establishing a right, in favor of or against several persons, which is likely to be the subject of legal controversy; or
(3) In other similar cases.
(b) As ancillary to this jurisdiction, equity will grant perpetual injunctions.
As used in this article, the term:
(1) “Claim” means any request or demand, whether under a contract or otherwise, for money or property, and whether or not this state or a local government has title to such money or property that is:
(A) Presented to an officer, employee, or agent of the state or local government;
(B) Made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the state's or local government's behalf or to advance a state or local government program or interest, and if the state or local government:
(i) Provides or has provided any portion of the money or property requested or demanded; or
(ii) Will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.
Such term shall not include requests or demands for money or property that the state or local government has paid to an individual as compensation for state or local government employment or as an income subsidy with no restrictions on that individual's use of the money or property.
(2) “Knowing” and “knowingly” mean that a person, with respect to information:
(A) Has actual knowledge of the information;
(B) Acts in deliberate ignorance of the truth or falsity of the information; or
(C) Acts in reckless disregard of the truth or falsity of the information.
No proof of specific intent to defraud is required.
(3) “Local government” means any Georgia county, municipal corporation, consolidated government, authority, board of education or other local public board, body, or commission, town, school district, board of cooperative educational services, local public benefit corporation, hospital authority, taxing authority, or other political subdivision of the state or of such local government, including the Metropolitan Atlanta Rapid Transit Authority.
(4) “Material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.
(5) “Obligation” means an established duty, whether fixed or not, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee based or similar relationship, from law or regulation, or from the retention of any overpayment.
(6) “State” means the State of Georgia and any state department, board, bureau, division, commission, committee, public benefit corporation, public authority, council, office, or other governmental entity performing a governmental or proprietary function for this state.
(a) Any person, firm, corporation, or other legal entity that:
(1) Knowingly presents or causes to be presented a false or fraudulent claim for payment or approval;
(2) Knowingly makes, uses, or causes to be made or used a false record or statement material to a false or fraudulent claim;
(3) Conspires to commit a violation of paragraph (1), (2), (4), (5), (6), or (7) of this subsection;
(4) Has possession, custody, or control of property or money used, or to be used, by the state or local government and knowingly delivers, or causes to be delivered, less than all of that money or property;
(5) Being authorized to make or deliver a document certifying receipt of property used, or to be used, by the state or local government and, intending to defraud the state or local government, makes or delivers the receipt without completely knowing that the information on the receipt is true;
(6) Knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the state or local government who lawfully may not sell or pledge the property; or
(7) Knowingly makes, uses, or causes to be made or used a false record or statement material to an obligation to pay or transmit money or property to the state or local government, or knowingly conceals, knowingly and improperly avoids, or decreases an obligation to pay or transmit money or property to the state or a local government
shall be liable to the State of Georgia for a civil penalty of not less than $5,500.00 and not more than $11,000.00 for each false or fraudulent claim, plus three times the amount of damages which the state or local government sustains because of the act of such person.
(b) The provisions of subsection (a) of this Code section notwithstanding, if the court finds that:
(1) The person committing the violation of this subsection furnished officials of the state or local government responsible for investigating false claims violations with all information known to such person about the violation within 30 days after the date on which the defendant first obtained the information;
(2) Such person fully cooperated with any government investigation of such violation; and
(3) At the time such person furnished the state or local government with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under this article with respect to such violation, and the person did not have actual knowledge of the existence of an investigation into such violation,
the court may assess not more than two times the amount of the actual damages which the state or local government sustained because of the act of such person.
(c) A person violating any provision of this Code section shall also be liable to the state or local government for all costs, reasonable expenses, and reasonable attorney's fees incurred by the state or local government in prosecuting a civil action brought to recover the damages and penalties provided under this article.
(d) Any information furnished pursuant to paragraph (2) of subsection (b) of this Code section shall be exempt from disclosure under Article 4 of Chapter 18 of Title 50.
(e) This Code section shall not apply to claims, records, or statements made concerning taxes under the revenue laws of this state.
(a) The Attorney General shall be authorized to investigate suspected, alleged, and reported violations of this article. If the Attorney General finds that a person has violated or is violating this article, then the Attorney General may bring a civil action against such person under this article. The Attorney General may delegate authority to a district attorney or other appropriate official of a local government to investigate violations that may have resulted in damages to such local government under Code Section 23-3-121 and may delegate to the local government the authority to bring a civil action on its own behalf, or on behalf of any subdivision of such local government, to recover damages sustained by such local government as a result of such violations, as well as all multiple damages, costs, expenses, attorney's fees, and civil penalties available under Code Section 23-3-121. The Attorney General may delegate to a district attorney or local government the authority to pursue an action brought by a private person under subsection (b) of this Code section. Notwithstanding any such delegation of authority, the Attorney General shall retain the authority to continue or discontinue the prosecution of any such action and to withdraw any such authority previously delegated to a district attorney or local government.
(b)(1) Subject to the exclusions set forth in this Code section, a civil action under this article may also be brought by a private person upon written approval by the Attorney General. A civil action shall be brought in the name of the State of Georgia or local government, as applicable. The civil action may be dismissed only if the Attorney General gives written consent to the dismissal stating the reasons for consenting to such dismissal and the court enters an order approving the dismissal.
(2) A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Attorney General by certified mail or statutory overnight delivery. The complaint shall be filed in camera and under seal, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders. The state or, if delegated the authority by the Attorney General, local government may elect to intervene and proceed with the action within 60 days after the Attorney General receives both the complaint and the material evidence and information.
(3) The state or, if delegated the authority by the Attorney General, the local government may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under paragraph (2) of this subsection. Any such motions may be supported by affidavits or other submissions in camera. The defendant shall not be required to respond to any complaint filed under this Code section until 30 days after the complaint is unsealed and served upon the defendant.
(4) Before the expiration of the 60 day period or any extensions obtained under paragraph (3) of this subsection, the state or local government shall:
(A) Proceed with the civil action, in which case the civil action shall be conducted by the state or local government; or
(B) Notify the court that it declines to take over the civil action, in which case the person bringing the civil action shall have the right to proceed with the civil action.
(5) When a person brings a civil action under this subsection, no person other than the state or, if delegated the authority by the Attorney General, the local government may intervene or bring a related civil action based on the facts underlying the pending civil action.
(6) Any evidence and information provided to the Attorney General or his or her designee, including any district attorney or local government, by a private person in connection with an action under this Code section shall not constitute public records and shall be exempt from disclosure under Article 4 of Chapter 18 of Title 50. Any such evidence also shall be protected by the common interest privilege and work product doctrine. To effectuate the law enforcement purposes of this article in combating fraud and false claims directed at the public's funds, it is the public policy of this state that private persons be authorized to take actions to provide to the Attorney General or local government such information and evidence.
(c)(1) If the state or local government elects to intervene and proceeds with the civil action, it shall have the primary responsibility for prosecuting the civil action and shall not be bound by an act of the person bringing such civil action. Such person shall have the right to continue as a party to the civil action, subject to the limitations set forth in this subsection.
(2) If the Attorney General has consented to a dismissal or elected not to proceed with a civil action, a local government may dismiss the civil action, notwithstanding the objections of the person initiating the civil action, if the person has been notified by the local government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.
(3) The state or local government may settle the civil action with the defendant, notwithstanding the objections of the person initiating the civil action, if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera.
(4) Upon a showing by the state or local government that unrestricted participation during the course of the litigation by the person initiating the civil action would interfere with or unduly delay the state or local government's litigation of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person's participation, such as:
(A) Limiting the number of witnesses the person may call;
(B) Limiting the length of the testimony of such witnesses;
(C) Limiting the person's cross-examination of witnesses; or
(D) Otherwise limiting the participation of the person in the litigation.
(d) Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the civil action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation of the person in the litigation.
(e) If the state or local government elects not to proceed with the civil action, the person who initiated the civil action shall have the right to conduct the civil action. If the state or local government so requests, it shall be served with copies of all pleadings filed in the civil action and shall be supplied, without cost, with copies of all deposition transcripts. When a person proceeds with the civil action, the court may nevertheless permit the state or local government to intervene at a later date upon a showing of good cause.
(f) Whether or not the state or local government proceeds with the civil action, upon a showing by the state or local government that certain actions of discovery by the person initiating the civil action would interfere with the state or local government's investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than 60 days. Such a showing shall be conducted in camera. The court may extend the 60 day period upon a further showing in camera that the state or local government has pursued the criminal or civil investigation or proceedings with reasonable diligence, and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.
(g) Notwithstanding subsection (b) of this Code section, the state or local government may elect to pursue its claim through any alternate remedy available to the state or local government, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the civil action shall have the same rights in such proceeding as such person would have had if the civil action had continued under this Code section. Any finding of fact or conclusion of law made in such other proceeding that becomes final shall be conclusive on all parties to a civil action under this Code section. For purposes of this subsection, a finding or conclusion shall be deemed final if it has been finally determined on appeal to the appropriate court, if all time for filing such an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review.
(h)(1) If the state or local government proceeds with a civil action brought by a private person under subsection (b) of this Code section, such person shall, subject to the second sentence of this paragraph, receive at least 15 percent but not more than 25 percent of the proceeds of the civil action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the civil action. Where the civil action is one which the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the civil action, relating to allegations or transactions in a criminal, civil, or administrative hearing; in a legislative, administrative, or State Accounting Office report, hearing, audit, or investigation; or from the news media, the court may award such sums as it considers appropriate, but in no case more than 10 percent of the proceeds, taking into account the significance of the information and the role of the person bringing such civil action in advancing the case to litigation. Any payment to a person under the first or second sentence of this paragraph shall be made from the proceeds. Any such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorney's fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
(2) If the state or local government does not proceed with a civil action under this Code section, the person bringing the civil action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. Such amount shall be not less than 25 percent and not more than 30 percent of the proceeds of the civil action or settlement and shall be paid out of such proceeds. Such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorney's fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
(3) Whether or not the state or local government proceeds with the civil action, if the court finds that the civil action was brought by a person who planned and initiated the violation of this article upon which the civil action was brought, then the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the civil action which the person would otherwise receive under paragraph (1) or (2) of this subsection, taking into account the role of that person in advancing the case to litigation and any relevant circumstances pertaining to the violation. If the person bringing the civil action is convicted of criminal conduct arising from his or her role in the violation of this article, such person shall be dismissed from the civil action and shall not receive any share of the proceeds of the civil action. Such dismissal shall not prejudice the right of the State of Georgia to continue the civil action, represented by the Attorney General or local government attorney to whom the Attorney General has delegated authority.
(4) If the state or local government does not proceed with the civil action and the person bringing the civil action conducts the civil action, the court may award to the defendant its reasonable attorney's fees and expenses against the person bringing the civil action if the defendant prevails in the civil action and the court finds that the claim of the person bringing the civil action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.
(i) For purposes of this subsection, the term “public employee,” “public official,” and “public employment” shall include federal, state, and local employees and officials. No civil action shall be brought under this article by a person who is or was a public employee or public official if the allegations of such action are substantially based upon:
(1) Allegations of wrongdoing or misconduct which such person had a duty or obligation to report or investigate within the scope of his or her public employment or office; or
(2) Information or records to which such person had access as a result of his or her public employment or office.
(j)(1) No court shall have jurisdiction over a civil action brought under subsection (b) of this Code section against a member of the General Assembly or a member of the judiciary if the civil action is based on evidence or information known to the state when the civil action was brought.
(2) In no event may a person bring a civil action under subsection (b) of this Code section which is based upon allegations or transactions which are the subject of a civil or administrative proceeding to which the State of Georgia is already party.
(3) The court shall dismiss a civil action or claim under this Code section, unless opposed by the state or local government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed:
(A) In a state criminal, civil, or administrative hearing in which the state or local government or its agent is a party;
(B) In a state or local government legislative or other state or local government report, hearing, audit, or investigation that is made on the public record or disseminated broadly to the general public, provided that such information shall not be deemed publicly disclosed in a report or investigation because it was disclosed or provided pursuant to Article 4 of Chapter 18 of Title 50, the federal Freedom of Information Act, or under any other federal, state, or local law, rule, or program enabling the public to request, receive, or view documents or information in the possession of public officials or public agencies; or
(C) From the news media, provided that such allegations or transactions are not publicly disclosed in the news media merely because information of allegations or transactions have been posted on the Internet or on a computer network, unless the action is brought by the Attorney General or local government, or the person bringing the action is an original source of the information. For purposes of this subparagraph, the term “original source” means a person who:
(i) Prior to a public disclosure under this paragraph, has voluntarily disclosed to the state or a local government the information on which allegations or transactions in a claim are based; or
(ii) Has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions and who has voluntarily provided the information to the state or a local government before filing a civil action under this Code section.
(k) The state or local government shall not be liable for expenses which a private person incurs in bringing a civil action under this article.
(l)(1) Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of a civil action under this Code section or other efforts to stop one or more violations of this article.
(2) Relief under paragraph (1) of this subsection shall include reinstatement with the same seniority status that the employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney's fees. An action under this subsection may be brought in the appropriate superior court of this state for the relief provided in this subsection.
(3) A civil action under this subsection shall not be brought more than three years after the date when the discrimination occurred.
(a) Except as provided in paragraph (3) of subsection (l) of Code Section 23-3-122, all civil actions under this article shall be filed pursuant to Code Section 23-3-122 within six years after the date the violation was committed or three years after the date when facts material to the right of civil action are known or reasonably should have been known by the state or local government official charged with the responsibility to act in the circumstances, whichever occurs last; provided, however, that in no event shall any civil action be filed more than ten years after the date upon which the violation was committed.
(b) A subpoena requiring the attendance of a witness at a trial or hearing conducted under Code Section 23-3-122 may be served at any place in this state.
(c) For purposes of applying subsection (b) of Code Section 9-11-9, in pleading a civil action brought under this article, the qui tam plaintiff shall not be required to identify specific claims that result from an alleged course of misconduct or any specific records or statements used if the facts alleged in the complaint, if ultimately proven true, would provide a reasonable indication that one or more violations of Code Section 23-3-121 are likely to have occurred and if the allegations in the pleading provide adequate notice of the specific nature of the alleged misconduct to permit the state or a local government to investigate effectively and defendants to defend fairly the allegations made.
(d) If the state or local government elects to intervene and proceed with a civil action brought under subsection (b) of Code Section 23-3-122, the state or local government may file its own complaint or amend the complaint of a person who has brought an action under such subsection to clarify or add detail to the claims in which the state or local government is intervening and to add any additional claims with respect to which the state or local government contends it is entitled to relief. For statute of limitations purposes, any such state or local government pleading shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the state or local government arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in the prior complaint of that person.
(e) In any action brought under Code Section 23-3-122, the plaintiff shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.
(f) Notwithstanding any other provision of law, a final judgment rendered in favor of the state or local government or the United States in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense in any civil action which involves the same transaction as in the criminal proceeding and which is brought under subsection (a) or (b) of Code Section 23-3-122.
All civil actions brought under this article in a court of this state shall be brought in the county where the defendant or any one defendant, in the case of multiple defendants or defendants who are not residents of the State of Georgia, resides, can be found, transacts business, or commits an act in furtherance of the submittal of a false or fraudulent claim to the state or local government. Civil actions under this article may be brought in courts of the United States and other states if there is pendent jurisdiction.
(a) As used in this Code section, the term:
(1) “Custodian” means the custodian, or any deputy custodian, designated by the Attorney General under paragraph (1) of subsection (j) of this Code section.
(2) “Documentary material” includes the original or any copy of any book, record, report, memorandum, paper, communication, tabulation, chart, or other document or data compilations stored in or accessible through computer or other information retrieval system, together with instructions and all other materials necessary to use or interpret such data compilations, and any product of discovery.
(3) “False claims law” means:
(A) This article; and
(B) Any Act of Congress or of the legislature which prohibits or makes available to the federal government, state, or any local government in any court of this state, of another state or the District of Columbia, or of local government or of the United States any civil remedy with respect to any false claim against, bribery of, or corruption of any officer or employee of any state, the District of Columbia, local government, or the United States.
(4) “False claims law investigation” means any inquiry conducted by any false claims law investigator for the purpose of ascertaining whether any person is or has been engaged in any violation of a false claims law.
(5) “False claims law investigator” means any attorney or investigator employed by the Department of Law or any other agency of the federal government, state, or any local government who is charged with the duty of enforcing or carrying into effect any false claims law, or any officer or employee of the state or local government or the United States acting under the direction and supervision of such attorney or investigator in connection with a false claims law investigation.
(6) “Official use” means any use that is consistent with the law and the regulations and policies of the Department of Law or any other agency of the federal government, state, or any local government participating in any of the matters in question, including use in connection with internal memoranda, and reports; communications between the Attorney General or any other agency of the federal government, state, or any local government participating in the matters in question and any other agency of the federal government, state, or any local government, or a contractor of an agency of the federal government, state, or any local government, undertaken in furtherance of a federal, state, or local government or other governmental investigation or prosecution of a case; interviews of any qui tam relator or other witness; oral examinations; depositions; preparation for and response to civil discovery requests; introduction into the record of a case or proceeding; applications, motions, memoranda, and briefs submitted to a court or other tribunal; and communications with federal, state, or local government or other governmental investigators, auditors, consultants and experts, the counsel of other parties, arbitrators, and mediators, concerning an investigation, case, or proceeding.
(7) “Person” means any natural person, partnership, corporation, association, or other legal entity, including any state or local government or political subdivision of a state.
(8) “Product of discovery” includes:
(A) The original or duplicate of any deposition, interrogatory, document, thing, result of the inspection of land or other property, examination, or admission which is obtained by any method of discovery in any judicial or administrative proceeding of an adversarial nature;
(B) Any digest, analysis, selection, compilation, or derivation of any item listed in subparagraph (A) of this paragraph; and
(C) Any index or other manner of access to any item listed in subparagraph (A) of this paragraph.
(b)(1) For purposes of this Code section, whenever the Attorney General, or his or her designee, has reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigation, the Attorney General, or his or her designee, may, before commencing a civil proceeding under subsection (a) of Code Section 23-3-122 or other false claims law, or making an election under subsection (b) of Code Section 23-3-122, issue in writing and cause to be served upon such person a civil investigative demand requiring such person to:
(A) Produce such documentary material for inspection and copying;
(B) Answer in writing written interrogatories with respect to such documentary material or information;
(C) Give oral testimony concerning such documentary material or information; or
(D) Furnish any combination of such documentary material, answers, or testimony.
The Attorney General may delegate the authority to issue civil investigative demands under this subsection, including to a district attorney or other local government attorney. Whenever a civil investigative demand is an express demand for any product of discovery, the Attorney General, the deputy attorney general, or an assistant attorney general shall cause to be served, in any manner authorized by this Code section, a copy of such demand upon the person from whom the discovery was obtained and shall notify the person to whom such demand is issued of the date on which such copy was served. Any information obtained by the Attorney General or a designee of the Attorney General under this Code section may be shared with any qui tam relator if the Attorney General or such designee determines it is necessary as part of any false claims law investigation.
(2)(A) Each civil investigative demand issued under paragraph (1) of this subsection shall state the nature of the conduct constituting the alleged violation of a false claims law which is under investigation and the applicable provision of law alleged to have been violated.
(B) If such demand is for the production of documentary material, the demand shall:
(i) Describe each class of documentary material to be produced with such definiteness and certainty as to permit such documentary material to be fairly identified;
(ii) Prescribe a return date for each such class which will provide a reasonable period of time within which the documentary material so demanded may be assembled and made available for inspection and copying; and
(iii) Identify the false claims law investigator to whom such documentary material shall be made available.
(C) If such demand is for answers to written interrogatories, the demand shall:
(i) Set forth with specificity the written interrogatories to be answered;
(ii) Prescribe dates at which time the answers to such written interrogatories shall be submitted; and
(iii) Identify the false claims law investigator to whom such answers shall be submitted.
(D) If such demand is for the giving of oral testimony, the demand shall:
(i) Prescribe a date, time, and place at which the oral testimony shall be commenced;
(ii) Identify a false claims law investigator who shall conduct the examination and the custodian to whom the transcript of such examination shall be submitted;
(iii) Specify that such attendance and testimony are necessary to the conduct of the investigation;
(iv) Notify the person receiving the demand of the right to be accompanied by an attorney and any other representative; and
(v) Describe the general purpose for which the demand is being issued and the general nature of the testimony, including the primary areas of inquiry, which will be taken pursuant to the demand.
(E) Any civil investigative demand issued under this Code section which is an express demand for any product of discovery shall not be returned or returnable until 20 days after a copy of such demand has been served upon the person from whom the product of discovery was obtained.
(F) The date prescribed for the commencement of oral testimony pursuant to a civil investigative demand issued under this Code section shall be a date which is not less than seven days after the date on which such demand is received, unless the Attorney General or his or her designee determines that exceptional circumstances are present which warrant the commencement of such testimony within a lesser period of time.
(G) The Attorney General or his or her designee shall not authorize the issuance under this Code section of more than one civil investigative demand for oral testimony by the same person unless the person requests otherwise or unless the Attorney General, after investigation, notifies that person in writing that an additional demand for oral testimony is necessary.
(c)(1) A civil investigative demand issued under subsection (b) of this Code section shall not require the production of any documentary material, the submission of any answers to written interrogatories, or the giving of any oral testimony if such documentary material, answers, or testimony would be protected from disclosure under:
(A) Standards applicable to subpoenas or subpoenas duces tecum issued by a court of the state or of the United States to aid in a grand jury investigation; or
(B) Standards applicable to discovery requests under Chapter 11 of Title 9, the “Georgia Civil Practice Act,” to the extent that the application of such standards to any such demand is appropriate and consistent with the provisions and purposes of this Code section.
(2) Any such demand which is an express demand for any product of discovery supersedes any inconsistent order, rule, or provision of law, other than this Code section, preventing or restraining disclosure of such product of discovery to any person. Disclosure of any product of discovery pursuant to any such express demand shall not constitute a waiver of any right or privilege which the person making such disclosure may be entitled to invoke to resist discovery of trial preparation materials.
(d)(1) Any civil investigative demand issued under subsection (b) of this Code section may be served in this state by a false claims law investigator or by a sheriff, deputy sheriff, marshal, or deputy marshal at any place within the territorial jurisdiction of any court of this state.
(2) Any such demand or any petition filed under subsection (k) of this Code section may be served upon any person who is not found within the territorial jurisdiction of any court of this state in such manner as applicable law prescribes for service outside this state. To the extent that the courts of this state can assert jurisdiction over any such person consistent with due process, any such court shall have the same jurisdiction to take any action respecting compliance with this Code section by any such person that such court would have if such person were personally within the jurisdiction of such court. Compliance with this Code section may also be enforced in courts of other states, of the District of Columbia, and of the United States.
(e)(1) Service of any civil investigative demand issued under subsection (b) of this Code section or of any petition filed under subsection (k) of this Code section may be made upon a partnership, corporation, association, or other legal entity by:
(A) Delivering an executed copy of such demand or petition to any partner, executive officer, managing agent, or general agent of the partnership, corporation, association, or entity, or to any agent authorized by appointment or by law to receive service of process on behalf of such partnership, corporation, association, or entity;
(B) Delivering an executed copy of such demand or petition to the principal office or place of business of the partnership, corporation, association, or entity; or
(C) Depositing an executed copy of such demand or petition via the United States Postal Service by registered or certified mail or statutory overnight delivery, return receipt requested, addressed to such partnership, corporation, association, or entity at its principal office or place of business.
(2) Service of any such demand or petition may be made upon any natural person by:
(A) Delivering an executed copy of such demand or petition to the person; or
(B) Depositing an executed copy of such demand or petition via the United States Postal Service by registered or certified mail or statutory overnight delivery, return receipt requested, addressed to the person at the person's residence or principal office or place of business.
(f) A verified return by the individual serving any civil investigative demand issued under subsection (b) of this Code section or any petition filed under subsection (k) of this Code section setting forth the manner of such service shall be proof of such service. In the case of service by registered or certified mail or statutory overnight delivery, such return shall be accompanied by the return post office receipt or other receipt of delivery of such demand.
(g)(1) The production of documentary material in response to a civil investigative demand served under this Code section shall be made under a sworn certificate, in such form as the demand designates, by:
(A) In the case of a natural person, the person to whom the demand is directed; or
(B) In the case of a person other than a natural person, a person having knowledge of the facts and circumstances relating to such production and authorized to act on behalf of such person.
The certificate shall state that all of the documentary material required by the demand and in the possession, custody, or control of the person to whom the demand is directed has been produced and made available to the false claims law investigator identified in the demand.
(2) Any person upon whom any civil investigative demand for the production of documentary material has been served under this Code section shall make such documentary material available for inspection and copying to the false claims law investigator identified in such demand at the principal place of business of such person, or at such other place as the false claims law investigator and the person thereafter may agree and prescribe in writing, or as the court may direct under paragraph (1) of subsection (k) of this Code section. Such documentary material shall be made so available on the return date specified in such demand, or on such later date as the false claims law investigator may prescribe in writing. Such person may, upon written agreement between the person and the false claims law investigator, substitute copies for originals of all or any part of such documentary material.
(h) Each interrogatory in a civil investigative demand served under this Code section shall be answered separately and fully in writing under oath and shall be submitted under a sworn certificate, in such form as the demand designates, by:
(1) In the case of a natural person, the person to whom the demand is directed; or
(2) In the case of a person other than a natural person, the person or persons responsible for answering each interrogatory.
If any interrogatory is objected to, the reasons for the objection shall be stated in the certificate instead of an answer. The certificate shall state that all information required by the demand and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted. To the extent that any information is not furnished, the information shall be identified and reasons set forth with particularity regarding the reasons why the information was not furnished.
(i)(1) The examination of any person pursuant to a civil investigative demand for oral testimony served under this Code section shall be taken before an officer authorized to administer oaths and affirmations by the laws of this state, or of the United States, or of the place where the examination is held. The officer before whom the testimony is to be taken shall put the witness on oath or affirmation and shall, personally or by someone acting under the direction of the officer and in the officer's presence, record the testimony of the witness. The testimony shall be taken stenographically and shall be transcribed. When the testimony is fully transcribed, the officer before whom the testimony is taken shall promptly transmit a copy of the transcript of the testimony to the custodian. This subsection shall not preclude the taking of testimony by any means authorized by and in a manner consistent with Chapter 11 of Title 9, the “Georgia Civil Practice Act.”
(2) The false claims law investigator conducting the examination shall exclude from the place where the examination is held all persons except the person giving the testimony, the attorney for and any other representative of the person giving the testimony, the attorney for the state or local government, any person who may be agreed upon by the attorney for the state or local government and the person giving the testimony, the officer before whom the testimony is to be taken, and any stenographer taking such testimony.
(3) The oral testimony of any person taken pursuant to a civil investigative demand served under this Code section shall be taken in the county within which such person resides, is found, or transacts business, or in such other place as may be agreed upon by the false claims law investigator conducting the examination and such person.
(4) When the testimony is fully transcribed, the false claims law investigator or the officer before whom the testimony is taken shall afford the witness, who may be accompanied by counsel, a reasonable opportunity to examine and read the transcript, unless such examination and reading are waived by the witness. Any changes in form or substance which the witness desires to make shall be entered and identified upon the transcript by the officer or the false claims law investigator, with a statement of the reasons given by the witness for making such changes. The transcript shall then be signed by the witness, unless the witness in writing waives the signing, is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within 30 days after being afforded a reasonable opportunity to examine it, the officer or the false claims law investigator shall sign it and state on the record the fact of the waiver, illness, absence, or the refusal to sign of the witness, together with the reasons, if any, given therefor.
(5) The officer before whom the testimony is taken shall certify on the transcript that the witness was sworn by the officer and that the transcript is a true record of the testimony given by the witness, and the officer or false claims law investigator shall promptly deliver the transcript, or send the transcript by registered or certified mail, to the custodian.
(6) Upon payment of reasonable charges therefor, the false claims law investigator shall furnish a copy of the transcript to the witness only, except that the Attorney General or his or her designee may, for good cause, limit such witness to inspection of the official transcript of the witness's testimony.
(7)(A) Any person compelled to appear for oral testimony under a civil investigative demand issued under subsection (b) of this Code section may be accompanied, represented, and advised by counsel. Counsel may advise such person, in confidence, with respect to any question asked of such person. Such person or counsel may object on the record to any question, in whole or in part, and shall briefly state for the record the reason for the objection. An objection may be made, received, and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on the grounds of any constitutional or other legal right or privilege, including the privilege against self-incrimination. Such person may not otherwise object to or refuse to answer any question, and shall not, directly or through counsel, otherwise interrupt the oral examination. If such person refuses to answer any question, a petition may be filed in the superior court under paragraph (1) of subsection (k) of this Code section for an order compelling such person to answer such question.
(B) If such person refuses to answer any question on the grounds of the privilege against self-incrimination, the testimony of such person may be compelled in accordance with the provisions of Title 24.
(8) Any person appearing for oral testimony under a civil investigative demand issued under subsection (b) of this Code section shall be entitled to the same fees and allowances which are paid to witnesses in the superior courts and state courts of Georgia.
(j)(1) The Attorney General shall designate a false claims law investigator to serve as custodian of documentary material, answers to interrogatories, and transcripts of oral testimony received under this Code section and shall designate such additional false claims law investigators as the Attorney General determines from time to time to be necessary to serve as deputies to the custodian.
(2)(A) A false claims law investigator who receives any documentary material, answers to interrogatories, or transcripts of oral testimony under this Code section shall transmit them to the custodian. The custodian shall take physical possession of such documentary material, answers, or transcripts and shall be responsible for the use made of them and for the return of documentary material under paragraph (4) of this subsection.
(B) The custodian may cause the preparation of such copies of such documentary material, answers to interrogatories, or transcripts of oral testimony as may be required for official use by any false claims law investigator or other officer or employee of the Attorney General or any other agency of the state or local government participating in an investigation of the matters in question. Such documentary material, answers, and transcripts may be used by any such authorized false claims law investigator or other officer or employee in connection with the taking of oral testimony under this Code section.
(C) Except as otherwise provided in this subsection, no documentary material, answers to interrogatories, or transcripts of oral testimony, or copies thereof, while in the possession of the custodian, shall be available for examination by any individual other than a false claims law investigator or other officer or employee of the Attorney General or any other agency of the federal government or of a state or local government participating in an investigation of the matters in question authorized under subparagraph (B) of this paragraph. The prohibition in the preceding sentence on the availability of documentary material, answers, or transcripts shall not apply if consent is given by the person who produced such documentary material, answers, or transcripts, or, in the case of any product of discovery produced pursuant to an express demand for such documentary material, consent is given by the person from whom the discovery was obtained. Nothing in this subparagraph is intended to prevent disclosure to the General Assembly, including any committee or subcommittee of the General Assembly, or to any other agency of the state or local government or the United States for use by such agency in furtherance of its statutory responsibilities.
(D) While in the possession of the custodian and under such reasonable terms and conditions as the Attorney General shall prescribe:
(i) Documentary material and answers to interrogatories shall be available for examination by the person who produced such documentary material or answers, or by a representative of that person authorized by that person to examine such documentary material and answers; and
(ii) Transcripts of oral testimony shall be available for examination by the person who produced such testimony, or by a representative of that person authorized by that person to examine such transcripts.
(3) Whenever the Attorney General, an attorney for a local government, or an attorney for any agency of a local government participating in an investigation of the matter in question has been designated to appear before any court, grand jury, or state or local government or federal agency in any case or proceeding, the custodian of any documentary material, answers to interrogatories, or transcripts of oral testimony received under this Code section may deliver to such attorney such documentary material, answers, or transcripts for official use in connection with any such case or proceeding as such attorney determines to be required. Upon the completion of any such case or proceeding, such attorney shall return to the custodian any such documentary material, answers, or transcripts so delivered which have not passed into the control of such court, grand jury, or agency through introduction into the record of such case or proceeding.
(4) If any documentary material has been produced by any person in the course of any false claims law investigation pursuant to a civil investigative demand under this Code section, and:
(A) Any case or proceeding before the court or grand jury arising out of such investigation, or any proceeding before any state or local government or federal agency involving such documentary material, has been completed; or
(B) No case or proceeding in which such documentary material may be used has been commenced within a reasonable time after completion of the examination and analysis of all documentary material and other information assembled in the course of such investigation,
the custodian shall, upon written request of the person who produced such documentary material, return to such person any such documentary material, other than copies furnished to the false claims law investigator under paragraph (2) of subsection (g) of this Code section or made for the state under subparagraph (B) of paragraph (2) of this subsection, which has not passed into the control of any court, grand jury, or agency through introduction into the record of such case or proceeding.
(5) In the event of the death, disability, or separation from service of the custodian of any documentary material, answers to interrogatories, or transcripts of oral testimony produced pursuant to a civil investigative demand under this Code section, or in the event of the official relief of such custodian from responsibility for the custody and control of such documentary material, answers, or transcripts, the Attorney General or his or her designee shall promptly:
(A) Designate another false claims law investigator to serve as custodian of such documentary material, answers, or transcripts; and
(B) Transmit in writing to the person who produced such documentary material, answers, or testimony notice of the identity and address of the successor so designated.
Any person who is designated to be a successor under this paragraph shall have, with regard to such documentary material, answers, or transcripts, the same duties and responsibilities as were imposed by this Code section upon that person's predecessor in office, except that the successor shall not be held responsible for any default or dereliction which occurred before that designation.
(k)(1) Whenever any person fails to comply with any civil investigative demand issued under subsection (b) of this Code section, or whenever satisfactory copying or reproduction of any documentary material requested in such demand cannot be done and such person refuses to surrender such documentary material, the Attorney General or local government may file in any county or district in which such person resides, is found, or transacts business and serve upon such person a petition for an order of such court for the enforcement of the civil investigative demand.
(2)(A) Any person who has received a civil investigative demand issued under subsection (b) of this Code section may file in the appropriate court and serve upon the false claims law investigator identified in such demand a petition for an order of the court to modify or set aside such demand. In the case of a petition addressed to an express demand for any product of discovery, a petition to modify or set aside such demand may be brought only in the superior court for any county in which the proceeding in which such discovery was obtained is or was last pending. Any petition under this subparagraph shall be filed:
(i) Within 20 days after the date of service of the civil investigative demand, or at any time before the return date specified in the demand, whichever date is earlier; or
(ii) Within such longer period as may be prescribed in writing by any false claims law investigator identified in the demand.
(B) The petition shall specify each ground upon which the petitioner relies in seeking relief under subparagraph (A) of this paragraph and may be based upon any failure of the demand to comply with the provisions of this Code section or upon any constitutional or other legal right or privilege of such person. During the pendency of the petition in the court, the court may stay, as it deems proper, the running of the time allowed for compliance with the demand, in whole or in part, except that the person filing the petition shall comply with any portions of the demand not sought to be modified or set aside.
(3)(A) In the case of any civil investigative demand issued under subsection (b) of this Code section which is an express demand for any product of discovery, the person from whom such discovery was obtained may file in the superior court for the county in which the proceeding in which such discovery was obtained is or was last pending and serve upon any false claims law investigator identified in the demand and upon the recipient of the demand a petition for an order of such court to modify or set aside those portions of the demand requiring production of any such product of discovery. Any petition under this subparagraph shall be filed:
(i) Within 20 days after the date of service of the civil investigative demand, or at any time before the return date specified in the demand, whichever date is earlier; or
(ii) Within such longer period as may be prescribed in writing by any false claims law investigator identified in the demand.
(B) The petition shall specify each ground upon which the petitioner relies in seeking relief under subparagraph (A) of this paragraph and may be based upon any failure of the portions of the demand from which relief is sought to comply with the provisions of this Code section or upon any constitutional or other legal right or privilege of the petitioner. During the pendency of the petition, the court may stay, as it deems proper, compliance with the demand and the running of the time allowed for compliance with the demand.
(4) At any time during which any custodian is in custody or control of any documentary material or answers to interrogatories produced by, or transcripts of oral testimony given by, any person in compliance with any civil investigative demand issued under subsection (b) of this Code section, such person and, in the case of an express demand for any product of discovery, the person from whom such discovery was obtained, may file in the superior court for any county within which the office of such custodian is situated and serve upon such custodian a petition for an order of such court to require the performance by the custodian of any duty imposed upon the custodian by this Code section.
(5) Whenever any petition is filed under this subsection in any superior court for any county, such court shall have jurisdiction to hear and determine the matter so presented and to enter such order or orders as may be required to carry out the provisions of this Code section. Any final order so entered shall be subject to appeal. Any disobedience of any final order entered under this Code section by any court shall be punished as a contempt of the court.
(6) Chapter 11 of Title 9, the “Georgia Civil Practice Act,” shall apply to any petition filed in this state under this subsection, to the extent that such rules are not inconsistent with the provisions of this Code section.
(l) Any documentary material, answers to written interrogatories, or oral testimony provided under any civil investigative demand issued under subsection (b) of this Code section shall be exempt from disclosure under Article 4 of Chapter 18 of Title 50.
(a) The provisions of this article shall not be deemed exclusive, and the remedies provided for in this article shall be in addition to any other remedies provided for in any other law or available under common law.
(b) This article shall be broadly construed and applied to promote the public's interest in combating fraud and false claims directed at the public's funds.
If a civil action can be commenced pursuant to Article 7B of Chapter 4 of Title 49, the “State False Medicaid Claims Act,” the claimant shall proceed under Article 7B of Chapter 4 of Title 49.
Where there is one common claim to be asserted by or against several, and one is asserting the claim against many, or many against one, the court may utilize equitable powers to consolidate and determine the whole matter in one action.
A claim for extraordinary relief or remedy to aid an action or defense may be asserted either by original pleading or by amendment.
A defendant to any action in the superior court or in the Georgia State-wide Business Court, whether the action is for legal or equitable relief, may claim legal or equitable relief, or both, by framing proper pleadings for that purpose and sustaining them by sufficient evidence.
All ex parte proceedings or proceedings for the execution of the protective powers of equity over trust estates or the estates of wards of equity shall be initiated by presenting a petition to the court. The court may order such other proceedings as the necessity of each case demands.
The judge may receive and act upon the petitions described in Code Section 23-4-4 at chambers, always transmitting the entire proceedings to the clerk to be entered on the minutes or other records of the court.
Any person who may not bring an action at law may complain in equity and every person who is remediless elsewhere may claim the protection and assistance of equity to enforce any right recognized by the law.
A decree is the judgment of the judge in equitable proceedings upon the facts ascertained and should be signed by him and entered on the minutes of the court.
A superior court shall have full power to mold its decrees so as to meet the exigencies of each case and shall have full power to enforce its decrees when rendered.
Equity may decree in cases of fraud, trust, or contract, although property not within the jurisdiction may be affected by the decree.
When it becomes impossible to carry out any last will and testament in whole or in part, and in all matters of contract, the judges of the superior courts, and the judge of the Georgia State-wide Business Court in matters of contract only, shall have power to render any decree that may be necessary and legal, provided that all parties in interest shall consent thereto in writing and there shall be no issue as to the facts or, if there is such an issue, that there shall be a like consent in writing that the judge presiding may hear and determine such facts, subject to a review on appeal, as in other cases. In all cases where minors are interested, the consent of the guardian at law or the guardian ad litem shall be obtained before the decree is rendered.
At any stage in the progress of an action seeking equitable relief, if any portion of the same is ready for or requires a decree, the court may hear and determine such matters and pass such interlocutory decree or order as may advance the cause and expedite a final hearing. If no issue of fact is involved, the verdict of a jury shall be unnecessary.
Sales under decrees in equity shall be subject to confirmation by the judge, who has a large discretion vested in him in reference thereto. Such sales shall not be consummated until confirmed by him.
A decree shall be transferable like other judgments and, when for money, shall constitute a like lien.
Every decree or order of a superior court or the Georgia State-wide Business Court in equitable proceedings may be enforced by attachment against the person for contempt. Decrees for money may be enforced by execution against the property. If a decree is partly for money and partly for the performance of a duty, the former may be enforced by execution and the latter by attachment or other process.
Injunction, ne exeat, prohibition, and other extraordinary remedies may be enforced by attachment for contempt.
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