THIRD DIVISION

ELLINGTON, P. J.,

DILLARD and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

July 14, 2015

In the Court of Appeals of Georgia

A15A0055. MCCUMBER et al. v. PETROLEUM SERVICES

GROUP, LLC. 

A15A0056. MCCUMBER et al. v. K. C. PETROLEUM, INC. 

MCFADDEN, Judge.

These cases arise out of leakage of fuel from underground storage tanks on the

property of CoastalRetail Management, LLC – which is owned by appellants Andrew

McCumber and Rajendra Patel. Coastal’s claims arising out of that occurrence have

been resolved in earlier litigation. In these cases, McCumber and Patel now seek

personal damages arising out of the same occurrence. The trial court granted summary

judgment against McCumber and Patel on the basis of collateral estoppel, and they

appeal.

Asto the claimsresolved in the earlier litigation against Coastal, we agree with

the trial court that McCumber’s and Patel’s claims are barred by collateral estoppel.
As to the negligence claim resolved in favor of Coastal, we pretermit the issue of

collateral estoppel and hold that McCumber and Patel have shown no duty owed to

them as individuals. We therefore affirm. 

Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On

appeal froma grant of summary judgment, we apply a de novo standard of review and

view the evidence, and all reasonable conclusions and inferences drawn from it, in

the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226

Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the record shows that Coastal filed a lawsuit in the Superior Court

of Screven County, Georgia, against K. C. Petroleum, Inc. and Petroleum Services

Group, LLC, seeking damages arising from the leakage of fuel from underground

storage tanks on Coastal’s property. The suit asserted claims of negligence and fraud

against K. C. Petroleum, which had installed the tanks, and negligence against

PetroleumServices, which had monitored the tanks. The case proceeded to a non-jury

trial, after which the trial court entered judgment finding that PetroleumServices was

not liable for negligence, that K. C. Petroleum was not liable for fraud, but that K. C.

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Petroleumwasliable for negligence in the amount of $425,170. Coastal appealed, and

this court affirmed the judgment in an unpublished opinion. 

In the meantime, McCumber and Patel, the owners of Coastal, filed a separate

lawsuit in Liberty County, Georgia against K. C. Petroleum, its employee Loy

Sanders, and Petroleum Services, seeking personal damages arising from the leaking

fuel tanks. The complaint set forth claims of negligence and fraud against K. C.

Petroleum, fraud against Sanders and negligence against Petroleum Services. K. C.

Petroleum, Sanders and Petroleum Services moved for summary judgment on the

grounds of res judicata and collateral estoppel based on the final judgment from the

Screven County lawsuit. The trial court granted the motions, issuing one order

granting summary judgment to Petroleum Services and another order granting

summary judgment to K. C. Petroleum and Sanders. These appealsfollowed: in Case

No. A15A055, McCumber and Patel challenge the summary judgment order in favor

of Petroleum Services; and in Case No. A15A0056, they challenge the summary

judgment in favor of K. C. Petroleum and Sanders.

Case No. A15A0055 

1. Negligence claim against Petroleum Services.

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Contrary to the arguments of McCumber and Patel, their negligence claim

against Petroleum Services is barred by collateral estoppel. That doctrine 

precludes the re-adjudication of an issue that has previously been

litigated and adjudicated on the merits in another action between the

same parties or their privies. Like res judicata, collateral estoppel

requires the identity of the parties or their privies in both actions.

However, unlike res judicata, collateral estoppel does not require

identity of the claim – so long as the issue was determined in the

previous action and there is identity of the parties, that issue may not be

re-litigated, even as part of a different claim.

Coffee Iron Works v. QORE, Inc., 322 Ga. App. 137, 139 (1) (744 SE2d 114) (2013)

(citation and emphasis omitted). 

Here, the issue of Petroleum Services’ liability for negligence was previously

litigated and adjudicated in the Screven County action, with the trial court finding

that PetroleumServices was not liable and this court affirming that finding on appeal.

Although McCumber and Patel were not parties to the Screven County action, they

are the sole owners and privies of Coastal, the plaintiff in that prior suit who litigated

the same legal claim of negligence now asserted by McCumber and Patel in this suit.

Consequently they are in privity with Coastal. 

A privy is generally defined as one who is represented at trial and who

is in law so connected with a party to the judgment as to have such an

identity of interest that the party to the judgment represented the same

legal right. There is no definition of “privity” which can be

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automatically applied to all casesinvolving the doctrines of res judicata

and collateral estoppel, since privity depends upon the circumstances.

Privity may be established if the party to the first suit represented the

interests of the party to the second suit. 

Id. at 141 (3) (citation omitted). 

McCumber and Patel contend that they are not privies of their corporation

because the Screven County trial court issued an order noting their separate lawsuit

in Liberty County and prohibiting Coastal from seeking damages pertaining to them

individually in the Screven County action. That order was appropriate because

McCumber and Patel were not parties to the Screven County suit; it is irrelevant for

purposes of collateral estoppel analysis. The fact remains that Coastal asserted and

litigated the same claimof negligence against PetroleumServices that McCumber and

Patel alleged in their separate action. Thus, McCumber and Patel are so connected in

law and have such an identity of interest with their corporation that they are in privity

with Coastal. Because the issue of Petroleum Services’ liability for negligence was

determined in the previous action and there is identity of the parties, that issue may

not be re-litigated and the trial court therefore correctly granted summary judgment

to Petroleum Services. 

Case No. A15A0056

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2. Fraud claims against K. C. Petroleum and Sanders. 

The issue of liability for fraud by K. C. Petroleum and Sanders was also

previously decided in the Screven County action and is thus barred by collateral

estoppel. After the bench trial in Screven County, the trial court expressly found as

part of its judgment that there was no liability for any alleged acts of fraud by

employees of K. C. Petroleum. Although Sanders was not a party to that first action,

his alleged acts of fraud were in issue and were actually litigated in the prior case.

Indeed, on appeal, this court reviewed the evidence pertaining to the claim of fraud

by Sanders and K. C. Petroleum, and we concluded that “the trial court’s judgment

in favor of [K. C. Petroleum] on that claim was authorized.” Accordingly, since the

issue of liability for fraud was determined in the previous action and there is identity

of the parties, collateral estoppel “preclude[s] re-litigation of the same issue here.

[Cit.]” See Minnifield v. Wells Fargo Bank, 331 Ga. App. 512, 517 (3) (771 SE2d

188) (2015). 

3. Negligence claim against K. C. Petroleum. 

McCumber and Patel argue that they cannot be estopped from pursuing the

same negligence claim against K. C. Petroleum that was litigated in the previous

action since K. C. Petroleum was actually found liable for negligence in that prior

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suit. But pretermitting the issue of collateral estoppel is the fact that McCumber and

Patel have not shown any duty owed to them, as individuals, by K. C. Petroleum

which would support their negligence claim. On the contrary, the only duty identified

in their complaint wasthe duty owed by K. C. Petroleum to Coastal to properly install

the fuel tanks on Coastal’s gas station site. 

“The threshold issue in any cause of action for negligence is whether, and to

what extent, the defendant owes the plaintiff a duty of care.” City of Rome v. Jordan,

263 Ga. 26, 27 (1) (426 SE2d 861) (1993) (citation and footnote omitted). Absent a

duty owed by K. C. Petroleum to McCumber and Patel, they have not shown a viable

negligence claim against K. C. Petroleum for any purported indirect injuries. See

Crittenton v. Southland Owners Assn., 312 Ga. App. 521, 524 (2) (718 SE2d 839)

(2011) (indirect injuriesto a corporate member or director resulting fromdirect injury

to the corporation do not give rise to a direct action); Dunn v. Ceccarelli, 227 Ga.

App. 505, 509 (1) (a) (489 SE2d 563) (1997) (physical precedent). 

That threshold issue controls our decision today. “A grant of summary

judgment must be affirmed if it is right for any reason, whether stated or unstated in

the trial court’s order, so long as the movant raised the issue in the trial court and the

nonmovant had a fair opportunity to respond.” Georgia-Pacific v. Fields, 293 Ga.

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499, 504 (2) (748 SE2d 407) (2013) (citations, punctuation and emphasis omitted).

Here, K. C. Petroleum raised this very issue of lack of evidence of duty in a prior

summary judgment motion, which the trial court denied before later granting the

renewed motion for summary judgment. Under these circumstances, the issue was

properly raised in the trial court, and even though not the stated reason for the trial

court’s eventual grant of summary judgment, it mandates affirmance of the summary

judgment ruling. See McPherson v. City of Ft. Oglethorpe, 200 Ga. App. 129, 131 (1)

(407 SE2d 99) (1991) (absent evidence of duty, essential element of negligence is

missing and trial court properly granted summary judgment to defendant). 

Judgments affirmed. Dillard, J., concurs; Ellington, P. J., concurs in the

judgment only. 

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