2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 3 - Pleadings and Motions
§ 9-11-9. Pleading Special Matters

1. Capacity. It is not necessary to aver the capacity of a party to bring or defend an action, the authority of a party to bring or defend an action in a representative capacity, or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to bring or defend an action, or the authority of a party to bring or defend an action in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
2. Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the circumstance constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
3. Conditions precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
4. Official document or act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law.
5. Judgment. In pleading a judgment or decision of a domestic or foreign court, of a judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.
6. Time and place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.
7. Special damage. When items of special damage are claimed, they shall be specifically stated.

(Ga. L. 1966, p. 609, § 9; Ga. L. 2016, p. 864, § 9/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (d).

- Form of complaint for money paid by mistake, see § 9-11-107.

- For provisions of Federal Rules of Civil Procedure, Rule 9, see 28 U.S.C.

- For article discussing liability of corporate directors, officers, and shareholders under the Georgia Business Corporation Code, and as affected by provisions of the Georgia Civil Practice Act, see 7 Ga. St. B.J. 277 (1971). For article, "Georgia's 'Door-Closing' Statute: Who Bears the Burden?," see 24 Ga. St. B.J. 141 (1988). For annual survey article on legal ethics, see 56 Mercer L. Rev. 315 (2004). For survey article on law of torts, see 59 Mercer L. Rev. 397 (2007). For article, "The Georgia Taxpayer Protection and False Claims Act," see 65 Mercer L. Rev. 1 (2013). For comment, "Pleading Constructive Fraud in Securities Litigation - Avoiding Dismissal for Failure to Plead Fraud With Particularity," see 33 Emory L.J. 517 (1984).

ANALYSIS

• General Consideration
• Capacity
• Fraud, Mistake, and Mental Condition
• Conditions Precedent
• Special Damages

General Consideration

Construction of pleadings to do justice.

- Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9) is not immune from the command of Ga. L. 1976, p. 1047, § 1 (see now O.C.G.A. § 9-11-8(f)) that pleadings be construed so as to do substantial justice. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

Principle that a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the plaintiff's claim which would entitle the plaintiff to relief is applicable to all pleadings, including special matters. Cochran v. McCollum, 233 Ga. 104, 210 S.E.2d 13 (1974); Bryant v. Bryant, 236 Ga. 265, 223 S.E.2d 662 (1976).

Complaint shall not be dismissed unless the averments disclose that the plaintiff would not be entitled to relief under any set of facts that could be proved in support of the claim. Hiller v. Culbreth, 139 Ga. App. 351, 228 S.E.2d 374 (1976).

Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the plaintiff's claim which would entitle the plaintiff to relief, and this principle is applicable to all pleadings, including special matters. Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

Pleading should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of the pleader's claim which would entitle the pleader to relief. This principle is applicable to all pleadings including special matters (fraud, mistake, and conditions precedent) under O.C.G.A. § 9-11-9. Skelton v. Skelton, 251 Ga. 631, 308 S.E.2d 838 (1983).

- Pleading should not be stricken if under any state of facts within its framework the pleader might prevail, but the trial court should grant a right to amend. Diversified Holding Corp. v. Clayton McLendon, Inc., 120 Ga. App. 455, 170 S.E.2d 863 (1969).

Proper remedy for seeking more particularity is by motion for more definite statement at the pleading stage or by discovery thereafter. Cochran v. McCollum, 233 Ga. 104, 210 S.E.2d 13 (1974); Moultrie v. Atlanta Fed. Sav. & Loan Ass'n, 148 Ga. App. 650, 252 S.E.2d 77 (1979).

Remedy for failure to plead special damages is to move for a more definite statement of the plaintiff's claim. Alta Anesthesia Assocs. of Ga., P.C. v. Gibbons, 245 Ga. App. 79, 537 S.E.2d 388 (2000).

Trial court erred in granting the defendants' motions to dismiss the plaintiffs' complaint for failure to state a claim upon which relief could be granted and for judgment on the pleadings because the trial court should have required the plaintiffs to amend the plaintiffs' complaint and provide a more definite statement of the plaintiffs' claims before passing upon the motions; the amended complaint was a "shotgun pleading" because the complaint was not a short and plain statement of the claims that the plaintiffs asserted as required by O.C.G.A. § 9-11-8(a)(2)(A) of the Civil Practice Act O.C.G.A. Ch. 11, T. 9, the complaint did not give the defendants fair notice of the nature of the claims, and the complaint did not conform to several of the specific pleading requirements of the Act, specifically O.C.G.A. §§ 9-11-8,9-11-9, and9-11-10. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 720 S.E.2d 370 (2011).

When a trial court orders a plaintiff to make a more definite statement of his or her claims, the court should identify the ways in which the complaint fails to conform to the pleading requirements of the Civil Practice Act O.C.G.A. Ch. 11, T. 9 and the court also should warn the plaintiff about the potential consequences of a failure to replead in a way that conforms to these requirements; if the court still cannot ascertain the nature of the claims that the plaintiff seeks to assert, the court may enter another order to replead again, but the trial court and the defendants need not become caught in an endless cycle of attempts to replead, and if it appears that a plaintiff is unable or unwilling to plead in conformance to the Civil Practice Act and the directions of the court, the court may be authorized in some cases to dismiss the complaint under O.C.G.A. § 9-11-41(b), not for a failure to state a claim, but for disregard of the rules and orders of the court. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 720 S.E.2d 370 (2011).

- Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9) itself contains no mechanism for enforcing its terms, and common practice has been to use Ga. L. 1966, p. 609, § 12 (see now O.C.G.A. § 9-11-12(e)) for that purpose. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

One context in which a somewhat liberal approach to granting a motion under Ga. L. 1966, p. 609, § 12 (see now O.C.G.A. § 9-11-12(e)) is appropriate is when a request for more definite statement is used to enforce special pleading requirements of subsection (c) of Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9). McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

- Affirmative defense of emergency vehicle need not be pled under Ga. L. 1976, p. 1047, § 1 (see now O.C.G.A. § 9-11-8(c)), nor is it one of the special matters listed under Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9). Walker v. Burke County, 149 Ga. App. 704, 256 S.E.2d 100 (1979).

- Defense of privilege need not be affirmatively pled under Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8(c)), nor specifically pled under Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9), and is sufficiently raised by a motion to dismiss. Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E.2d 862 (1975).

Mere misnomer of a party in the pleadings is a defect which may be waived when the misnamed party is in fact the legally cognizable proper party in interest. Block v. Voyager Life Ins. Co., 251 Ga. 162, 303 S.E.2d 742 (1983).

Damages for mental anguish as an element of general compensatory damages need not be specially pled. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 329 S.E.2d 900, cert. denied, 254 Ga. 349, 331 S.E.2d 879 (1985).

- When the plaintiff appealed from a magistrate court's decision dismissing the plaintiff's claim and awarding damages to the defendant on the defendant's counterclaim, and the plaintiff had notice of additional damages since the original counterclaim, the defendant could present evidence of additional damages of less than $5,000 relating to the defendant's counterclaim, without formal amendment of the defendant's pleadings. Jr. Mills Constr. v. Trichinotis, 223 Ga. App. 19, 477 S.E.2d 141 (1996).

Cited in Bazemore v. Burnet, 117 Ga. App. 849, 161 S.E.2d 924 (1968); Reiner v. David's Super Mkt., Inc., 118 Ga. App. 10, 162 S.E.2d 298 (1968); Hunter v. A-1 Bonding Serv., Inc., 118 Ga. App. 498, 164 S.E.2d 246 (1968); Neville v. Buckeye Cellulose Corp., 118 Ga. App. 439, 164 S.E.2d 257 (1968); O'Neil v. Moore, 118 Ga. App. 424, 164 S.E.2d 328 (1968); HFC v. Johnson, 119 Ga. App. 49, 165 S.E.2d 864 (1969); WSAV-TV, Inc. v. Baxter, 119 Ga. App. 185, 166 S.E.2d 416 (1969); Phoenix Ins. Co. v. Aetna Cas. & Sur. Co., 120 Ga. App. 122, 169 S.E.2d 645 (1969); Bill Heard Chevrolet Co. v. GMAC, 120 Ga. App. 328, 170 S.E.2d 454 (1969); Leachman v. Cobb Dev. Co., 226 Ga. 103, 172 S.E.2d 688 (1970); Butler v. Cochran, 121 Ga. App. 173, 173 S.E.2d 275 (1970); Georgia Educ. Auth. (Sch.) v. Davis, 227 Ga. 36, 178 S.E.2d 853 (1970); Smith v. Standard Oil Co., 227 Ga. 268, 180 S.E.2d 691 (1971); Beckwith v. Peterson, 227 Ga. 403, 181 S.E.2d 51 (1971); Elsner v. Cathcart Cartage Co., 124 Ga. App. 615, 184 S.E.2d 685 (1971); Butler v. Hicks, 229 Ga. 72, 189 S.E.2d 416 (1972); Stewart v. Jim Walter Homes, Inc., 229 Ga. 244, 190 S.E.2d 520 (1972); Fleet Transp. Co. v. Cooper, 126 Ga. App. 360, 190 S.E.2d 629 (1972); Porter-Lite Corp. v. Warren Scott Contracting Co., 126 Ga. App. 436, 191 S.E.2d 95 (1972); Commercial Credit Corp. v. Wilkes, 229 Ga. 665, 193 S.E.2d 811 (1972); Hancock v. Nashville Inv. Co., 128 Ga. App. 58, 195 S.E.2d 674 (1973); Aiken v. Bynum, 128 Ga. App. 212, 196 S.E.2d 180 (1973); Hawkins Iron & Metal Co. v. Continental Ins. Co., 128 Ga. App. 462, 196 S.E.2d 903 (1973); Schlicht v. Bincer, 230 Ga. 745, 199 S.E.2d 245 (1973); MacNerland v. Barnes, 129 Ga. App. 367, 199 S.E.2d 564 (1973); Management Search, Inc. v. Kinard, 231 Ga. 26, 199 S.E.2d 899 (1973); Smith v. Berry, 231 Ga. 39, 200 S.E.2d 95 (1973); Holder v. Brock, 129 Ga. App. 732, 200 S.E.2d 912 (1973); Wheat v. Montgomery, 130 Ga. App. 202, 202 S.E.2d 664 (1973); Applegarth Supply Co. v. Schaffer, 130 Ga. App. 353, 203 S.E.2d 277 (1973); Vulcan Materials Co. v. Douglas, 131 Ga. App. 21, 205 S.E.2d 84 (1974); Hendrix v. Scarborough, 131 Ga. App. 342, 206 S.E.2d 42 (1974); Baldwin v. Ariail, 232 Ga. 376, 207 S.E.2d 17 (1974); Hannah v. Shauck, 131 Ga. App. 834, 207 S.E.2d 239 (1974); Wallace v. Bleakman, 131 Ga. App. 856, 207 S.E.2d 254 (1974); Centennial Equities Corp. v. Hollis, 132 Ga. App. 44, 207 S.E.2d 573 (1974); Robinson Explosives, Inc. v. Dalon Contracting Co., 132 Ga. App. 849, 209 S.E.2d 264 (1974); Howard v. Dun & Bradstreet, Inc., 136 Ga. App. 221, 220 S.E.2d 702 (1975); Barrett v. Simmons, 235 Ga. 600, 221 S.E.2d 25 (1975); Key v. Bagen, 136 Ga. App. 373, 221 S.E.2d 234 (1975); Scata v. Pinnacle Enters., Inc., 136 Ga. App. 451, 221 S.E.2d 660 (1975); Filsoof v. West, 235 Ga. 818, 221 S.E.2d 811 (1976); Babcock v. Davis Realty Co., 138 Ga. App. 236, 225 S.E.2d 711 (1976); Phillips v. Hertz Com. Leasing Corp., 138 Ga. App. 441, 226 S.E.2d 287 (1976); Brannon v. Whisenant, 138 Ga. App. 627, 227 S.E.2d 91 (1976); Davis v. Ben O'Callaghan Co., 139 Ga. App. 22, 227 S.E.2d 837 (1976); Carroll v. Equico Lessors, 141 Ga. App. 279, 233 S.E.2d 255 (1977); Parker v. Centrum Int'l Film Corp., 141 Ga. App. 521, 233 S.E.2d 877 (1977); Chastain v. Simmons, 142 Ga. App. 615, 236 S.E.2d 678 (1977); Parks v. Parks, 240 Ga. 1, 239 S.E.2d 334 (1977); Boxwood Corp. v. Berry, 144 Ga. App. 351, 241 S.E.2d 297 (1977); Scroggins v. Harper, 144 Ga. App 548, 241 S.E.2d 648 (1978); Bloodworth v. Bloodworth, 240 Ga. 614, 241 S.E.2d 827 (1978); Nelson v. Fulton County Bank, 147 Ga. App. 98, 248 S.E.2d 173 (1978); Hough v. Johnson, 242 Ga. 698, 251 S.E.2d 288 (1978); Cooper v. Mason, 151 Ga. App. 793, 261 S.E.2d 738 (1979); Bradley v. Godwin, 152 Ga. App. 782, 264 S.E.2d 262 (1979); Windjammer Assocs. v. Hodge, 153 Ga. App. 758, 266 S.E.2d 540 (1980); Avery v. K.I., Ltd., 158 Ga. App. 640, 281 S.E.2d 366 (1981); Simpson v. Georgia State Bank, 159 Ga. App. 310, 283 S.E.2d 278 (1981); Hurst v. McDaniel, 159 Ga. App. 702, 285 S.E.2d 40 (1981); DeLoach v. Floyd, 160 Ga. App. 728, 288 S.E.2d 65 (1981); Goldstein v. GTE Prods. Corp., 160 Ga. App. 767, 287 S.E.2d 105 (1982); Dorsey Heating & Air Conditioning Co. v. Gordon, 162 Ga. App. 608, 292 S.E.2d 452 (1982); Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243, 296 S.E.2d 788 (1982); Borenstein v. Blumenfeld, 250 Ga. 606, 299 S.E.2d 727 (1983); Lenny's, Inc. v. Allied Sign Erectors, Inc., 170 Ga. App. 706, 318 S.E.2d 140 (1984); Capps v. Mullen, 172 Ga. App. 297, 322 S.E.2d 747 (1984); Rustin Stamp & Coin Shop, Inc. v. Ray Bros. Roofing & Sheet Metal Co., 175 Ga. App. 30, 332 S.E.2d 341 (1985); Alexie, Inc. v. Old S. Bottle Shop Corp., 179 Ga. App. 190, 345 S.E.2d 875 (1986); Kauka Farms, Inc. v. Scott, 256 Ga. 642, 352 S.E.2d 373 (1987); Jacobs v. Pilgrim, 186 Ga. App. 260, 367 S.E.2d 49 (1988); Guthrie v. Bank S., 195 Ga. App. 123, 393 S.E.2d 60 (1990); Hart v. Sullivan, 197 Ga. App. 759, 399 S.E.2d 523 (1990); Kennedy v. Johnson, 205 Ga. App. 220, 421 S.E.2d 746 (1992); Bryant v. Haynie, 216 Ga. App. 430, 454 S.E.2d 533 (1995); Cobb County v. Jones Group, 218 Ga. App. 149, 460 S.E.2d 516 (1995); NationsBank v. Tucker, 231 Ga. App. 622, 500 S.E.2d 378 (1998); Leroy v. Atlanta Protective Assocs., 255 Ga. App. 849, 567 S.E.2d 1819 (2002); Woody's Steaks, LLC v. Pastoria, 261 Ga. App. 815, 584 S.E.2d 41 (2003); Miller v. Lomax, 266 Ga. App. 93, 596 S.E.2d 232 (2004); Rooks v. Tenet Health Sys. GB, Inc., 292 Ga. App. 477, 664 S.E.2d 861 (2008); Weatherly v. Weatherly, 292 Ga. App. 879, 665 S.E.2d 922 (2008); Memar v. Styblo, 293 Ga. App. 528, 667 S.E.2d 388 (2008); Walker v. Walker, 293 Ga. App. 872, 668 S.E.2d 330 (2008); Osprey Cove Real Estate, LLC v. Towerview Constr., LLC, 343 Ga. App. 436, 808 S.E.2d 425 (2017); Zahler v. Nat'l Collegiate Student Loan Trust 2006-1, 355 Ga. App. 458, 844 S.E.2d 530 (2020).

Capacity

Specific negative averment required.

- In order to raise an issue as to plaintiff's capacity to sue, it is incumbent upon the defendant to set forth a defense by specific negative averment including all facts known to the defendant bearing on the plaintiff's lack of capacity. Patterson v. Duron Paints of Ga., Inc., 144 Ga. App. 123, 240 S.E.2d 603 (1977).

- Effect of the procedural rule in subsection (a) of O.C.G.A. § 9-11-9 that lack of capacity must be pled by specific negative averment is to insure that the plaintiff will have an opportunity to correct the misnomer by amendment. Youmans v. Riley Properties, 180 Ga. App. 176, 349 S.E.2d 1 (1986).

- General denial by the defendant or denial for lack of knowledge or information is insufficient to raise an issue as to the defendant corporation's legal existence, and failure to raise such issue by direct negative averment results in waiver of the defense. Stuckey's Carriage Inn v. Phillips, 122 Ga. App. 681, 178 S.E.2d 543 (1970).

- Waiver occurs only when the defendant fails to raise issue of capacity any time before judgment. Patterson v. Duron Paints of Ga., Inc., 144 Ga. App. 123, 240 S.E.2d 603 (1977).

By failing to raise issue of legal existence or capacity by specific negative averment any time before judgment, the defendant waives the objection. Prince & Paul v. Don Mitchell's WLAQ, Inc., 127 Ga. App. 502, 194 S.E.2d 269 (1972).

When a party desires to raise an issue as to the capacity or authority of a party to bring an action, the party must do so by specific negative averment in the responsive pleadings. Otherwise, the defense is deemed waived. Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 304 S.E.2d 442 (1983), overruled on other grounds; Adams v. Cato, 175 Ga. App. 28, 332 S.E.2d 355 (1985).

- On appeal, the defendant could not challenge the mother's right to sue for medical expenses, etc., on the theory that such action lay with the father, when the defendant did not question the mother's capacity to sue at the outset. Johnson v. Daniel, 135 Ga. App. 926, 219 S.E.2d 579 (1975) (case decided prior to amendment of § 19-7-1, relating to parental control of child).

In the absence of any negative averment, including supporting particulars, the issue of the plaintiff's capacity to sue is not properly raised in the trial court and may not be raised on appeal. Vanelzas v. Pallardy, 166 Ga. App. 264, 304 S.E.2d 429 (1983).

- Defense of individual defendants, who offered evidence to show that the owner of the vehicle and the employer of the driver involved in an accident was a corporation, and made a motion to be dismissed as defendants, did not involve an issue which must be raised by specific negative averment under subsection (a) of this section; closest category into which this defense fits is that of "mistaken identity." Calhoun v. Herrin, 125 Ga. App. 518, 188 S.E.2d 273 (1972).

- When a contractor has not complied with the provisions of O.C.G.A. § 48-13-37 requiring nonresident contractors to register with the state revenue commissioner in order to maintain an action to recover payment in state courts, the defense of the contractor's lack of capacity to maintain the suit may be asserted at trial without being specially pled under O.C.G.A. § 9-11-9. Gorrell v. Fowler, 248 Ga. 801, 286 S.E.2d 13, appeal dismissed, 457 U.S. 1113, 102 S. Ct. 2918, 73 L. Ed. 2d 1324 (1982).

Defendant was not estopped from asserting the improper party defense on grounds that the defendant did not comply with O.C.G.A. §§ 9-11-9 and9-11-19, since those sections, which govern the issue of legal capacity and joinder of parties, have no bearing on this matter. Benschoter v. Shapiro, 204 Ga. App. 56, 418 S.E.2d 381, cert. denied, 204 Ga. App. 921, 418 S.E.2d 381 (1992).

Fraud, Mistake, and Mental Condition

Subsection (b) is exception to general liberality of pleading.

- Subsection (b) of this section is an exception to general liberality of pleading permitted under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), and although it is construed in pari materia with the remainder of the chapter, it in effect retains a long-standing rule obtaining at common law and in many states, requiring that facts must be alleged which if proved would lead clearly to the conclusion that fraud had been committed. Continental Inv. Corp. v. Cherry, 124 Ga. App. 863, 186 S.E.2d 301 (1971).

Purpose of subsection (b) of this section is to insure that the defendant has sufficient notice to enable the defendant to prepare a responsive pleading. Hayes v. Hallmark Apts., Inc., 232 Ga. 307, 207 S.E.2d 197 (1974).

Lack of "good faith" is not same as "fraud" under this section. McLendon v. Hartford Accident & Indem. Co., 119 Ga. App. 459, 167 S.E.2d 725 (1969) (see now O.C.G.A. § 9-11-9).

"Ulterior motive" is not required to be stated with particularity. Ace-Hi Elec., Inc. v. Steinberg, 133 Ga. App. 917, 213 S.E.2d 71 (1975).

There is no presumption of fraud; fraud must be pled and proved. Henry v. Allstate Ins. Co., 129 Ga. App. 223, 199 S.E.2d 338 (1973), overruled on other grounds, Tucker v. Chung Studio of Karate, Inc., 142 Ga. App. 818, 237 S.E.2d 223 (1977).

General allegation of fraud amounts to nothing; it is necessary that complainant show, by specifications, wherein fraud consists. Issuable facts must be charged. Candler v. Clover Realty Co., 125 Ga. App. 278, 187 S.E.2d 318 (1972).

- In claiming fraud and negligent misrepresentation, a shareholder did not fail to allege facts showing reasonable reliance as required by O.C.G.A. § 9-11-9(b); the amended complaint alleged that the shareholder detrimentally relied upon misrepresentations allegedly made in a press release, "as any similarly situated shareholder and investor would reasonably rely on similar press releases," and thus it could not be said that the shareholder was bound to fail to establish reasonable reliance. Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 284 Ga. App. 387, 643 S.E.2d 864 (2007).

- Plaintiff alleged that an attorney's statements induced the attorney's client to breach the contract; the plaintiff does not contend that the plaintiff personally relied on any misrepresentations by the attorney, who was the defendant. Thus, because the plaintiff's pleading shows on the pleading's face that the plaintiff was not damaged as a result of the plaintiff's own reliance on any false misrepresentation made by the attorney, the plaintiff's fraud claim failed and was properly dismissed. Fortson v. Hotard, 299 Ga. App. 800, 684 S.E.2d 18 (2009).

- Petition which sets forth circumstances to show that the defendant made misrepresentations knowing the misrepresentations were false, with the intention of deceiving the plaintiff, and that the plaintiff did in fact rely on the representations, was deceived thereby, and suffered damage as a result, met requirements of subsection (b) of this section. Johnson v. Cleveland, 131 Ga. App. 560, 206 S.E.2d 704 (1974).

Circumstances constituting alleged fraud must be pled with sufficient definiteness so as to advise adversary of claim which the adversary must meet. Continental Inv. Corp. v. Cherry, 124 Ga. App. 863, 186 S.E.2d 301 (1971).

- Under subsection (b) of this section, circumstances constituting fraud must be stated with particularity; at the very least, pleader should designate occasions on which affirmative misstatements were made and by whom and in what way the statements were acted upon. Diversified Holding Corp. v. Clayton McLendon, Inc., 120 Ga. App. 455, 170 S.E.2d 863 (1969).

Face of a complaint failed to allege any specific facts to support a finding that an engineer intentionally made false statements about the condition of a retaining wall on the plaintiff's property when the engineer sent an inspection letter to a builder, that the engineer sent the letter to the builder with the intention of inducing the plaintiff, a third party, to rely on the letter or that the plaintiff justifiably relied on the letter; as a result, the plaintiff's complaint was legally insufficient to present a fraud claim. Dockens v. Runkle Consulting, Inc., 285 Ga. App. 896, 648 S.E.2d 80 (2007), cert. denied, 2007 Ga. LEXIS 668 (2007).

In a suit brought by a golf course development company against two other members of a limited liability company and a housing authority, the trial court erred by dismissing one of the member's counterclaim asserting fraud as that member pled in detail numerous instances of false representations by the golf course development company that, when taken as true for purposes of the motion to dismiss, supported a claim of fraud. Perry Golf Course Dev., LLC v. Hous. Auth., 294 Ga. App. 387, 670 S.E.2d 171 (2008).

- Construing the pleadings in the light most favorable to the pleader, although unfavorable constructions are possible, a claim of fraud and deceit is stated with particularity when a false representation is alleged to have been made by the defendant, knowing the representation to be false (or knowledge equivalent thereof), with intent to deceive the plaintiff, who relied on such fraudulent representation and sustained loss as a result thereof. Hiller v. Culbreth, 139 Ga. App. 351, 228 S.E.2d 374 (1976).

Allegations of fraud must be specific and factual as to acts comprising the fraud, under both present and former rules of pleading. Continental Inv. Corp. v. Cherry, 124 Ga. App. 863, 186 S.E.2d 301 (1971).

When a company sued the company's attorneys and accountants for fraud and aiding and abetting fraud regarding their participation in a sale of the company's assets because they did not notify the company's principal of the sale, summary judgment was properly granted in favor of the attorneys and accountants because the employee who conducted the sale had apparent authority to do so and actual fraud was insufficiently pled, under O.C.G.A. § 9-11-9(b), as a response to the attorneys' and accountants' motion for summary judgment. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004).

Student's allegations of fraud and perjury contained in a one sentence complaint were insufficient and the student did not carry the burden simply by making assertions in an appellate brief. Majeed v. Randall, 279 Ga. App. 679, 632 S.E.2d 413 (2006).

Homeowner failed to state a claim for fraud by overbilling by a lender, which resulted in the wrongful foreclosure of the homeowner's home by a law firm, because the homeowner did not allege fraud with particularity as required by O.C.G.A. § 9-11-9(b). The homeowner failed to state a claim under the Fair Credit Billing Act because the statute applied solely to creditors of open end credit plans pursuant to 15 U.S.C. § 1602. Fairfax v. Wells Fargo Bank, N. A., 312 Ga. App. 171, 718 S.E.2d 16 (2011).

While a client's complaint contained a count for fraud, the client failed to allege any specific facts to state a cause of action for fraud pursuant to O.C.G.A. §§ 9-11-9,51-6-1, and51-6-2(b) because the complaint failed to allege any specific facts indicating that a former attorney intentionally made false statements to the client during the course of the representation of the client. Fortson v. Freeman, 313 Ga. App. 326, 721 S.E.2d 607 (2011).

Allegations of fraud in the complaint were well-pled and met the requirements of O.C.G.A. § 9-11-9 based on the plaintiff's allegations that showed that the defendant made a promise and did not intend to perform pursuant to the promise. Mecca Constr., Inc. v. Maestro Invs., LLC, 320 Ga. App. 34, 739 S.E.2d 51 (2013).

Trial court's dismissal of fraud and negligent misrepresentation claims was improper because a more definite statement under O.C.G.A. § 9-11-12(e) was required as it was necessary for the plaintiff to designate occasions on which affirmative misrepresentations or omissions were made and by whom and in what way the misrepresentations were acted upon. Villa Sonoma at Perimeter Summit Condo. Ass'n v. Commercial Indus. Bldg. Owners Alliance, Inc., 349 Ga. App. 666, 824 S.E.2d 738 (2019).

- General allegation that the plaintiff was unable to read is a conclusory allegation, in that it does not specify why the plaintiff was unable to read, but such allegations are permissible under this section. Simmons v. Wooten, 241 Ga. 518, 246 S.E.2d 639 (1978).

- Conclusory statements which allege improper representation and lack of good faith must be followed by supporting facts, and categorical assertions of fraud amounting only to conclusions are not deemed admitted by a motion to dismiss. Continental Inv. Corp. v. Cherry, 124 Ga. App. 863, 186 S.E.2d 301 (1971).

Mere conclusory allegations that defendants defrauded by course of dealing in which unspecified property was purchased too dearly or sold too cheaply, without indicating what transactions were referred to, do not meet statutory standards. Continental Inv. Corp. v. Cherry, 124 Ga. App. 863, 186 S.E.2d 301 (1971).

Averments of fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law. Robbins v. National Bank, 241 Ga. 538, 246 S.E.2d 660 (1978).

Remedy for failure to plead fraud with particularity, as required by subsection (b) of Ga. L. 1966, p. 609, § 6 (see now O.C.G.A. § 9-11-9), is not a motion to dismiss but a motion for a more definite statement under Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12). Tucker v. Chung Studio of Karate, Inc., 142 Ga. App 818, 237 S.E.2d 223 (1977).

Although fraud is required to be pled with particularity, failure to do so renders a complaint vulnerable to a motion for a more definite statement, but not, as an initial matter, to a motion to dismiss. Signal Knitting Mills, Inc. v. Roozen, 150 Ga. App. 552, 258 S.E.2d 261 (1979).

When there is a failure to plead fraud with particularity, the correct remedy is not a motion to dismiss or strike but a motion for more definite statement under Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12(e)). White v. Johnson, 151 Ga. App. 345, 259 S.E.2d 731 (1979).

Failure to assert a fraud claim with particularity, as required by subsection (b) of O.C.G.A. § 9-11-9, does not authorize an automatic dismissal, rather, the defendant's initial remedy in such a situation is to move for a more definite statement. Irvin v. Lowe's of Gainesville, Inc., 165 Ga. App. 828, 302 S.E.2d 734 (1983).

Proper remedy for seeking more particularity is by a motion for more definite statement (O.C.G.A. § 9-11-12(e)) at the pleading stage or by the rules of discovery thereafter. Skelton v. Skelton, 251 Ga. 631, 308 S.E.2d 838 (1983).

Although O.C.G.A. § 9-11-9 requires that averments of fraud be pled with particularity, failure to do so does not authorize automatic dismissal. International Indem. Co. v. Terrell, 178 Ga. App. 570, 344 S.E.2d 239 (1986).

Appellants' alleged failure to plead fraud with specificity did not warrant a grant of summary judgment when the appellees had not filed a motion for a more definite statement in the trial court. Falanga v. Kirschner & Venker, P.C., 286 Ga. App. 92, 648 S.E.2d 690 (2007).

Pro se borrower's claims that a loan servicing company, rather than the claimed assignee, was the actual successor in interest to the lender, that it fraudulently transferred the property for the purpose of foreclosing on the property, and that the promissory note misrepresented the amount of the loan, were insufficient to satisfy the requirement that fraud be pled with particularity; the trial court should have granted the borrower a chance to replead. Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 751 S.E.2d 545 (2013).

Trial court erred by dismissing the plaintiff's mail and wire fraud claims as a predicate offense under the RICO statute because the proper remedy was allowing the plaintiff to file a more definite statement as to those claims. Z-Space, Inc. v. Dantanna's CNN Center, LLC, 349 Ga. App. 248, 825 S.E.2d 628 (2019).

- With respect to an initial motion to dismiss or motion to strike, a claim of fraud should not be dismissed unless it appears beyond doubt that the pleader can prove no set of facts in support of the claim which would entitle the pleader to relief. Tucker v. Chung Studio of Karate, Inc., 142 Ga. App. 818, 237 S.E.2d 223 (1977).

In cases involving fraud, conspiracy to defraud, and conversion of personal property, the complaint is not subject to be dismissed upon a motion unless averments therein disclose with certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved in support of the claim. Vickery v. General Fin. Corp., 126 Ga. App. 403, 190 S.E.2d 833 (1972).

Allegations made by wife that she was brainwashed by husband, that he assured her he had dropped a divorce action, and that she was suffering from severe emotional difficulties when agreements pertinent to the divorce were made, were sufficient allegations of fraud and duress to require an evidentiary hearing. Thompson v. Thompson, 237 Ga. 509, 228 S.E.2d 886 (1976).

- Allegation of devise that executor of estate attempted to convey entire tract without authority and in complete defiance of terms of will, without giving heirs an opportunity to purchase, was a sufficient allegation of fraud. Cook v. Cook, 225 Ga. 779, 171 S.E.2d 568 (1969).

- Evidence of defendants that the defendants did not read the instrument and relied on information given the defendants by the plaintiff and the plaintiff's attorney was insufficient to show fraud on the plaintiff's part when there was no fiduciary relationship between the plaintiff and the defendants and they dealt with each other at arm's length. Venable v. Payne, 138 Ga. App. 237, 225 S.E.2d 716 (1976).

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) does not require specific allegations when liability is attempted to be established by third person to independent contractor on theory that construction was so defective as to be imminently dangerous to third persons. Welding Prods. v. S.D. Mullins Co., 127 Ga. App. 474, 193 S.E.2d 881 (1972).

- When defendants do not specially plead affirmative defenses of failure of consideration and mistake, as required by Ga. L. 1976, p. 1047, § 1 (see now O.C.G.A. § 9-11-8) and subsection (b) of Ga. L. 1966, p. 609, § 9 (see now O.C.G.A. § 9-11-9), but on motion for summary judgment offer evidence in support of such defenses, thus creating issues of fact on motion for summary judgment, the moving party is not entitled to judgment as a matter of law. Bailey v. Polote, 152 Ga. App. 255, 262 S.E.2d 551 (1979).

Will propounder's claim in a motion for a directed verdict that caveators failed to plead fraud with particularity was procedurally improper as the proper remedy to seek more particularity was by a motion for a more definite statement or by the rules of discovery. Odom v. Hughes, 293 Ga. 447, 748 S.E.2d 839 (2013).

- In a medical negligence, wrongful death, and fraud action, a trial court properly denied a hospital's motion to dismiss the fraud claim against the hospital and allowed the suing spouse to amend the complaint to include the specificity for a fraud claim required by O.C.G.A. § 9-11-9 as sufficient allegations were made that the hospital concealed certain events leading to the death of the decedent/patient and that hospital employees intentionally made false statements about the decedent's condition with the intention of inducing the spouse to rely on the statements or that the spouse justifiably relied on the alleged false statements, which involved the improper placement of a feeding tube into the lung of the decedent/patient. Roberts v. Nessim, 297 Ga. App. 278, 676 S.E.2d 734 (2009).

Suit by former controlling shareholders of an LLC alleging that an investor/lender had wrestled control from them and delayed a pending sale of the LLC to obtain a greater personal financial benefit adequately alleged a special injury, allowing a direct rather than derivative claim, and stated a claim for fraud and breach of fiduciary duty. TMX Finance, LLC v. Goldsmith, 352 Ga. App. 190, 833 S.E.2d 317 (2019), cert. denied, No. S20C0427, 2020 Ga. LEXIS 405 (Ga. 2020); cert. denied, No. S20C0415, 2020 Ga. LEXIS 414 (Ga. 2020).

While the court refused to recognize a tort of aiding and abetting fraud, a complaint by investors against a fraudster's attorney adequately set forth the elements of a fraud claim in alleging that the attorney drafted many of the transaction documents that evidenced the many phony deals that the fraudster pretended to undertake, which conveyed the false impression to the investors that their purported investments were legitimate, causing damage to the investors. Siavage v. Gandy, 350 Ga. App. 562, 829 S.E.2d 787 (2019).

- Trial court erred by dismissing the fraud claims against the co-owner of the Georgia company, the co-owner's business manager, and the Georgia company as the plaintiff might be able to prove a set of facts that would support the plaintiff's fraud claims because the plaintiff's complaint alleged that the co-owner, the business manager, and the Georgia company knowingly made misrepresentations about placing the proceeds of the sale of the Georgia company into an allegedly nonexistent trust and that the plaintiff would be paid $250,000 from that trust within 30 days; and the plaintiff allegedly relied on those misrepresentations, and, as a result of not being paid, the plaintiff lost revenue and other business opportunities. Weathers v. Dieniahmar Music, LLC, 337 Ga. App. 816, 788 S.E.2d 852 (2016).

Conditions Precedent

Requirements inapplicable to contractual claims.

- Pleading and proof requirements relating to conditions precedent, O.C.G.A. §§ 9-11-9 and13-3-4, are inapplicable to contractual claims. Cowen v. Snellgrove, 169 Ga. App. 271, 312 S.E.2d 623 (1983).

- Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), a complainant can plead a claim for breach of contract without alleging performance or occurrence of conditions precedent; however, in order to prevail at trial the complainant would be required to prove performance or occurrence of conditions precedent. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) it is no longer necessary for a plaintiff in a contract action to allege performance or occurrence of a condition precedent in the plaintiff's complaint. Olympic Constr., Inc. v. Drywall Interiors, Inc., 180 Ga. App. 142, 348 S.E.2d 688 (1986).

- When complainant alleges generally that all conditions precedent have been performed or have occurred, and the defendant denies that allegation generally, but the complainant fails to insist upon the right to specific and particular denial, general allegation stands denied by general denial and requirement of proof of performance of conditions precedent remains in effect just as it would if there had been no allegation in the complaint as to the conditions precedent. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

Mere general denial of allegation that all conditions precedent have been performed does not constitute admission of performance of those conditions precedent. McLendon Elec. Co. v. McDonough Constr. Co., 149 Ga. App. 115, 253 S.E.2d 772 (1979).

- While bringing in affirmative defense of denial of performance or occurrence of conditions precedent 15 months after original answer was filed is not beneficial to orderly disposition of case, it is, nevertheless, permitted under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974).

Special Damages

Special damages to be pled with particularity.

- Subsection (g) of this section requires that items of special damage shall be pled with particularity. Signal Oil & Gas Co. v. Conway, 126 Ga. App. 711, 191 S.E.2d 624, rev'd on other grounds, 229 Ga. 849, 194 S.E.2d 909 (1972).

Since the appellee did not include in an amended complaint a plea for special damages under O.C.G.A. § 9-11-9(g), the defamation count of the amended complaint was limited to a claim alleging slander per se; employment of the Milkovich factors determined only that the alleged opinion was actionable as slander, but the Milkovich factors had no bearing on whether the words used constituted slander per se; statements which could have been interpreted as having the purpose of injuring the appellee's business by stating or implying that the appellee was going out of the real estate development business in which the appellee was still engaged and leaving the area were not recognizable as injurious on their face, and the appellant was entitled to summary judgment on the appellee's slander per se claim. Bellemeade, LLC v. Stoker, 280 Ga. 635, 631 S.E.2d 693 (2006).

- Special damages could not be recovered since the complaint did not specifically state what special damages were sought. Tri-County Inv. Group v. Southern States, Inc., 231 Ga. App. 632, 500 S.E.2d 22 (1998).

By failing to plead special damages with particularity as required by O.C.G.A. § 9-11-9(g), the scoutmaster did not state a claim for defamation. McGee v. Gast, 257 Ga. App. 882, 572 S.E.2d 398 (2002).

- When the plaintiffs amended the plaintiff's complaint to plead special damages by dollar amount pursuant to a court order which gave no deadline for compliance, the amendment, filed prior to the entry of a pretrial order, was proper, timely, and should have been considered by the trial court. Torok v. Yost, 194 Ga. App. 94, 389 S.E.2d 793 (1989).

RESEARCH REFERENCES

Am. Jur. 2d.

- 6 Am. Jur. 2d, Associations and Clubs, § 57. 19 Am. Jur. 2d, Corporations, §§ 1655, 1658, 1660. 37 Am. Jur. 2d, Fraud and Deceit, § 441 et seq. 61A Am. Jur. 2d, Pleading, § 195 et seq. 66 Am. Jur. 2d, Reformation of Instruments, § 10 et seq.

16 Am. Jur. Pleading and Practice Forms, Labor, § 2. 19B Am. Jur. Pleading and Practice Forms, Pleading, § 422.

- 35A C.J.S., Federal Civil Procedure, §§ 162, 243, 244, 250, 265, 267, 273, 294 et seq., 308. 71 C.J.S., Pleading, §§ 5, 11, 19, 20, 23, 29, 72, 78, 79, 80, 94, 153, 606.

- Form of pleading necessary to raise issue of corporate existence, 55 A.L.R. 510.

Right of foreign corporation to plead statute of limitations, 59 A.L.R. 1336; 122 A.L.R. 1194.

Necessity of alleging permanency of injury in order to recover damages as for a permanent injury, 68 A.L.R. 490.

Amendment of pleadings after limitation has run by change in capacity in which suit is prosecuted, 74 A.L.R. 1269.

Amendment of pleading after limitation period by substituting new defendant, or changing allegations as to capacity in which defendant is sued or the theory upon which defendant is sought to be held responsible for another's wrong, as stating a new cause of action, 74 A.L.R. 1280.

Sufficiency of allegations of loss of patronage or profits to permit recovery of special damages from false publication, 86 A.L.R. 848.

May payment be proved under general issue or general denial, or must it be specially pleaded, 100 A.L.R. 264.

Time requirements prescribed by statute granting right to sue United States or a state as a condition of jurisdiction which renders it unnecessary to plead specially their breach in defense, 106 A.L.R. 215.

Form and particularity of allegations to raise issue of undue influence, 107 A.L.R. 832.

Pleading duress as a conclusion, 119 A.L.R. 997.

Manner and sufficiency of pleading foreign law, 134 A.L.R. 570.

Necessary allegations in a declaration or complaint in action against physician or surgeon based on wrong diagnosis, 134 A.L.R. 683.

Necessity and sufficiency of pleading custom or usage, 151 A.L.R. 324.

Pleading aggravation of a pre-existing physical condition, 32 A.L.R.2d 1447.

Sufficiency of plaintiffs allegations in defamation action as to defendant's malice, 76 A.L.R.2d 696.

Necessity and manner, in personal injury or death action, of pleading special damages in the nature of medical, nursing, and hospital expenses, 98 A.L.R.2d 746.

Propriety and prejudicial effect of reference by plaintiff's counsel, in jury trial of personal injuries or death action, to amount of damages claimed or expected by his client, 14 A.L.R.3d 541.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly D.C. Circuit Cases, 37 A.L.R. Fed. 3d Art. 1.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Fourth Circuit Cases, 37 A.L.R. Fed. 3d Art. 2.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Sixth Circuit Cases, 37 A.L.R. Fed. 3d Art. 3.

Effect of 8 U.S.C.A. § 1252(g) Upon Jurisdiction to Hear Federal Tort Claims Act Claims of Noncitizen Wrongfully Removed in Violation of Court Order or Automatic Stay, 37 A.L.R. Fed. 3d Art. 4.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Tenth Circuit Cases, 37 A.L.R. Fed. 3d Art. 14.

What Constitutes Insolvency in Bankruptcy Preference Statute, 11 U.S.C.A. § 547(b)(3), 40 A.L.R. Fed. 3d Art. 2.

"Covered Person" Under the Consumer Financial Protection Act of 2010 (12 U.S.C.A. § 5481(6)(A)), 40 A.L.R. Fed. 3d Art. 3.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Second Circuit Cases, 40 A.L.R. Fed. 3d Art. 5.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Seventh Circuit Cases, 41 A.L.R. Fed. 3d Art. 3.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Eleventh Circuit Cases, 41 A.L.R. Fed. 3d Art. 4.

Issues Arising Under Enumeration Clause, U.S. Const. Art. I, § 2, cl. 3, 41 A.L.R. Fed. 3d Art. 6.

2018 to 2019 A.L.R. United States Supreme Court Review, 42 A.L.R. Fed. 3d Art. 1.

Actions Under Medicaid Federally Qualified Health Center (FQHC) Reimbursement Statute, 42 U.S.C.A. § 1396a(bb), 42 A.L.R. Fed. 3d Art. 4.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Third Circuit Cases, 42 A.L.R. Fed. 3d Art. 5.

Application of National Environmental Policy Act (NEPA) Anti-segmentation Principle to Natural Gas, Oil, or Petroleum Products Pipeline Projects, 42 A.L.R. Fed. 3d Art. 6.

Claims of Sentencing Factor Manipulation and Sentencing Entrapment Under Federal Sentencing Guidelines in Drug Prosecutions, 42 A.L.R. Fed. 3d Art. 7.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Ninth Circuit Cases, 43 A.L.R. Fed. 3d Art. 2.

Housing Protections for Victims of Intimate Partner Violence Under Violence Against Women Act, 34 U.S.C.A. § 12491, 43 A.L.R. Fed. 3d Art. 4.

Derivative Standing in Chapters 7, 11, and 13 Bankruptcy Proceedings, 43 A.L.R. Fed. 3d Art. 6.

Suggestion of Immunity from Executive Branch for Foreign Sovereigns and Officials, 43 A.L.R. Fed. 3d Art. 7.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Fifth Circuit Cases, 46 A.L.R. Fed. 3d Art. 4.