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No Forthcoming Opinions

June 22, 2015

The Supreme Court of Georgia did not release any new opinions on June 22, 2015. The next scheduled date for oral arguments is July 13, 2015.

Released Opinions

June 17, 2015

On Monday, June 15, the Supreme Court of Georgia released opinions in 19 cases, seven of which are within the scope of our coverage. The next scheduled date for oral arguments is July 13, 2015.

Summaries of the cases and the opinions are below

S14G1611 Kautz, Mayor v. Powell, et al.

In a unanimous opinion by Justice Melton, the Supreme Court of Georgia held that, under the terms of the City of Snellville’s Charter, the Mayor had the sole power to remove the city attorney. The Court reversed the decisions of the trial court and a divided Court of Appeals, which put the power to remove the city attorney in the city council’s hands.

In pertinent part, the Snellville city charter gave the Mayor the sole power to appoint the city attorney but was silent as to removal. The Supreme Court of Georgia held that those provisions meant that the power of removal was “incident to” and traveled with the power of appointment, invoking Atlanta R. & Power Co. v. Atlanta Rapid-Transit Co., 113 Ga. 481, 482, 39 SE 12 (1901), and other venerable decisions to that effect. That general rule was not changed even though the city charter reserved the powers of government to the city council “[e]xcept as otherwise provided by law or this Charter.” The Court held that that reservation was “simply not specific enough” to override the general rule.

S14G1632 Bowden v. The Medical Center, Inc.

In a unanimous opinion by Justice Nahmias, the Supreme Court of Georgia held that an uninsured injured person charged with a hospital lien for the cost of treatment can pursue discovery including information and documents related to the hospital’s charges for insured persons receiving the same care in contesting the reasonableness and validity of that lien. The Court held that “where the subject matter of a lawsuit includes the validity and amount of a hospital lien for the reasonable charges for a patient’s care, how much the hospital charged other patients, insured or uninsured, for the same type of care during the same time period is relevant for discovery purposes.” It reversed the decision of the Georgia Court of Appeals, which found the proposed discovery irrelevant.

The Court observed that the broad scope of discovery does not mean that the information generated will be admissible as evidence. Rather, the scope of discovery extends to matters “relevant to the subject matter in the pending action,” which “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” (Quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S.351 (1978)).

Even so, the Court warned that care needs to be taken in considering it. The probative value of the documents and information for the “reasonableness” of the charges turns on the degree to which the injured party is “similarly situated in … economically meaningful ways” to other recipients of the hospital’s services.

The Court explained, “The fair and reasonable value of services is often determined by considering what similar buyers and sellers have paid and received for the same product in the same market, with adjustments upward or downward made to account for pertinent differences, and we see no reason why the same cannot be true of health care.” The hospital could then show that any difference in charges to insured and uninsured patients was the result of contractual provisions or government-established rates. But, a patient’s contractual agreement does not make the resulting charges “automatically ‘reasonable.’” The Court emphasized that discovery, not admissibility on summary judgment or at trial, was before it.

S14G1780 Turner v. Georgia River Network et al.

In an opinion by Justice Benham, the Supreme Court of Georgia held that O.C.G.A. § 12-7-6(b)15(A) requires a buffer of 25 feet for those state waters that are adjacent to banks with wrested vegetation. It reversed the Court of Appeals, which held that the buffer was required for all state waters, whether there was wrested vegetation or not.

The extent of the buffer affects land-disturbing activities in the vicinity of state waters. Without a variance, no such activities could be conducted within the buffer. Grady County’s construction of a fishing lake, the construction of which would require the flooding of wetlands and streams, was one project that depended on the outcome of the case.

Section 12-7-6(b)15(A) provides, “There is established a 25 foot buffer along the banks of all state waters, as established horizontally from the point where vegetation has been wrested by normal stream flow or wave action ….” The Supreme Court of Georgia held that “the literal language of the statute does not require a buffer for state waters alongside banks without wrested vegetation” and declined to read the statute in any way other than literally. Justice Melton dissented, asserting that the Environmental Protection Division of the Georgia Department of Natural Resources should be allowed to cure the ambiguity in § 12-7-6(b)15(A), which left those banks without wrested vegetation uncovered.

S14G1862 BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing v. Wedereit

In a unanimous opinion by Justice Melton, the Supreme Court of Georgia held that the trial court erred in granting summary judgment sua sponte to a borrower who complained that, among other things, the mortgage lender failed to give proper pre-acceleration notice to him. The Court reversed the decision of the Georgia Court of Appeals.

BAC, as the successor to Countrywide, accelerated Wedereit’s loan and instituted foreclosure proceedings after Wedereit started missing his monthly payments. In his lawsuit against BAC for wrongful foreclosure, Wedereit alleged that BAC failed to comply with the provisions of the Security Deed when it gave notice of acceleration, but did not specify any defect in his complaint. BAC moved for summary judgment on that claim; Wedereit “submitted no evidence to affirmatively show that he could carry his burden of proving the merits of his breach of contract claim.” The trial court denied BAC’s summary judgment motion and went on to affirmatively grant summary judgment sua sponte to Wedereit even though he hadn’t asked for that relief.

The Supreme Court of Georgia noted that, while a trial court can grant summary judgment to a party that hadn’t asked for it “in limited circumstances,” the issues must be “identical to” those raised in the moving party’s motion, “such that it would make the nonmovant’s filing of a separate motion for summary judgment on those same issues a pure formality. (Internal quotation omitted.) In addition, the sua sponte grant must be “proper in all other respects,” including “full and fair notice and opportunity to respond.”

The Court held that those requirements were not met in this case. It noted that, “[A] defendant’s inability to show at the summary judgment phase that a plaintiff cannot prevail as a matter of law has nothing to do with a plaintiff’s entirely separate burden to show that he or she is entitled to prevail as a matter of law.” (Emphasis in original.) Wedereit did not carry that burden because he failed to show that he was entitled to summary judgment in his own right.

S15A0177 Lue, Mayor v. Eady, et al.

This case arises out of an attempt by two members of the Gordon city council and five citizens to remove Lue, the Mayor, from office. After a hearing (and her temporary suspension from office), the trial court reinstated Mayor Lue subject to certain conditions.

In a unanimous opinion by Justice Benham, the Supreme Court of Georgia affirmed the trial court’s rulings in part and reversed them in part. The Court rejected Lue’s claim that the trial judge should have recused himself, holding that a party’s ex parte contacts with a judge or the judge’s staff with respect to administrative or scheduling matters is not improper. It reversed the trial court’s prohibition on Lue’s meeting privately with three or more councilmembers to discuss city business because Lue, as Mayor, was not a council member within the meaning of the city’s Charter; in pertinent part, the charter made four council members a quorum and barred private meetings of “[f]our or more members of the city council.” The Court did not “agree … that the Charter section granting the mayor the authority to vote in the case of a tie vote of councilmembers means the Charter must be construed as granting the mayor the status of a councilmember for purposes of creating a quorum.”

S15A0146 Oasis Goodtime Emporium I d/b/a Oasis et al. v. City of Doraville, et al.

In a unanimous decision by Justice Nahmias, the Supreme Court of Georgia rejected constitutional challenges to the City of Doraville’s ordinance regulating sexually-oriented businesses. That ordinance prohibits the sale of alcohol in such businesses and prohibits the employees from appearing totally nude.

The Court first rejected a challenge to Doraville’s annexation of the land on which Oasis operates, holding that Oasis lacked standing to challenge that annexation. It explained that O.C.G.A. § 28-1-14(b), which Oasis claimed was not satisfied, was for the benefit of the governing authority, municipality, or consolidated government that would be affected by proposed local legislation, not the general public. Section 28-1-14(a), which was satisfied, requires notice by publication for local legislation, and it was for the benefit of the public, including businesses like Oasis.

With respect to the ordinance, the Court concluded that it was content-neutral and subject to intermediate scrutiny for that reason. A content-neutral regulation has purposes unrelated to the content of expression even though it may incidentally affect some speakers or messages but not others. Quoting Goldrush II v. City of Marietta, 267 Ga. 683, 690, 482 SE 2d 347 (1997), the Court noted, “An ordinance designed to combat the undesirable secondary effects of sexually oriented businesses is content-neutral.” The ordinance and its legislative record attested to the city’s desire to control the secondary effects of businesses like Oasis.

Content-neutral regulations are constitutionally permissible if they (1) serve an important governmental interest; (2) are unrelated to the suppression of speech or other First-Amendment activity; and (3) incidentally restrict speech no more than necessary to further the important governmental interest to be served. The Court rejected Oasis’s challenge to the factual basis for its governmental interest in fighting secondary effects. While it found the ban on total nudity to present a closer constitutional question, it looked to U.S. Supreme Court decisions for support and agreed with those upholding such a ban.

S15A0183 Tafel v. Lion Investment Cars, Inc., a/k/a Lion Antique Investments & Consulting Services, Inc.   

In a unanimous opinion by Chief Justice Thompson, the Supreme Court of Georgia affirmed the trial court’s ruling establishing the value of two Ferrari race cars that served as collateral for Tafel’s lease-purchase of those vehicles. After Tafel defaulted on his agreement to purchase the cars, Lion Antique obtained a stipulated judgment that set $1,444,603.38 as the agreed purchase price. In January 2009, on Lion Antique’s motion, the trial court entered a turnover order, pursuant to which Tafel surrendered the cars and Lion Antique agreed to market them immediately and sell them. In April 2010, Tafel filed a motion for satisfaction of the judgment, asserting that Lion Antique had failed to immediately market and sell the cars. After denying Tafel’s motion, the trial court set a jury trial to establish the value of the cars as of the date of the turnover order. While the jury found the cars to be worth some $693,000, Tafel learned that Lion had insured them for $900,000. The trial court used the insured value as the cars’ value, set it off against Lion Antique’s judgment, and declared Lion Antique’s judgment liquidated.

The Supreme Court of Georgia affirmed the trial court’s judgment. It held that, while Lion Antique styled its motion as one ne exeat which is meant to keep people from leaving a court’s jurisdiction, the substance of its motion seeking the cars controlled. The Court rejected Tafel’s contention that, under the Uniform Commercial Code and Georgia law, Lion Antique forfeited its right to seek a deficiency by failing to immediately market and sell the cars. It held that, “[E]ven assuming that Lion Antique’s actions were commercially unreasonable, under the correct UCC rule, Lion Antique did not forfeit its right to recover a deficiency so long as it showed, as the trial court found, that the value of the race cars was less than the judgment.” As for Lion Antique’s failure to comply with the turnover order, the remedy was contempt, but Tafel did not seek a contempt finding and the trial court had no duty to proceed sua sponte.

Finally, the Supreme Court of Georgia affirmed the denial of Tafel’s request for attorney fees. Tafel presented a summary of the hours worked by his attorneys and their paralegals to the trial court. The Court observed that O.C.G.A. § 24-10-1006 of Georgia’s new evidence code provides that, while summaries of voluminous documents may be presented, “[t]he originals, or duplicates, shall be made available for inspection or copying, or both, by other parties at a reasonable time and place.” It also suggested that the required production must be made “prior to the admission of the summary,” (citing and quoting United States v. Arias-Izquierdo, 449 F. 3d 1168, 1184 (11th Cir. 2006)).

No Forthcoming Opinions

June 9, 2015

The Supreme Court of Georgia did not release any new opinions on June 8, 2015. The next scheduled date for oral arguments is July 13, 2015.

Released Opinions

June 2, 2015

On Monday, June 1, in addition to hearing oral argument, the Supreme Court of Georgia issued 29 opinions, three of which are within the scope of our coverage. Summaries of the cases and the opinions are below.

S14G1202 Considine v. Murphy, et al.

In a unanimous opinion by Justice Nahmias, the Supreme Court of Georgia affirmed the dismissal of Considine’s lawsuit against the receivers appointed in her lawsuit against a third-party Michael Affatato, albeit on different grounds than those relied on by the Georgia Court of Appeals. Relying on DeGraffenreid v. Brunswick & Albany R.R. Co., 57 Ga. 22 (1876), the Court held that Considine’s failure to obtain leave to file her lawsuit from the court that appointed the receivers barred her action. “[W]ithout prior leave being properly granted, the trial court had no jurisdiction over this separate lawsuit against the receivers.”

Considine’s lawsuit against Affatato arose out of a dispute over the management and control of a company named Model Master that specialized in engineering and 3D modeling technology. The circuit court found the appointment of a receiver to be appropriate, and Considine and Affatato agreed to the appointment of George Murphy and his accounting firm, Murphy & McInvale, P.C. In 2010, Considine filed suit against the receivers claiming gross negligence and breach of fiduciary duty, but she did so without obtaining leave of court from the appointing court. She voluntarily dismissed that lawsuit before the trial court ruled on the receivers’ motion to dismiss. She refiled in 2011, though, and, this time, the trial court dismissed her lawsuit holding that the receivers were entitled to official immunity. The Georgia Court of Appeals reversed on procedural grounds, but the trial court again dismissed the lawsuit on immunity grounds. The Court of Appeals affirmed, holding, in Division 3 of its opinion, that the receivers were entitled to official immunity.

Without addressing the immunity claim, the Supreme Court of Georgia held that dismissal was warranted given Considine’s failure to obtain leave from the appointing court to file her lawsuit. As noted above, that failure is a jurisdictional defect. After setting out the prevailing rule, the Court explained, “In states like Georgia that treat the rule as jurisdictional, the prior-leave requirement applies even to a separate lawsuit filed in the same court that appointed the receiver.” As a result, “the only ‘Court of competent jurisdiction’ to decide a separate lawsuit against the receivers would be a court hearing an action that a party in the Affatato case had asked for and received leave to file from the court in that case.”

Even though the Supreme Court of Georgia declined to rule on whether the receivers were entitled to immunity, it noted that the immunity might be judicial, constitutional official, or statutory immunity. Accordingly, while it affirmed the judgment of the Court of Appeals, it vacated Division 3 of its opinion in which the court set forth its immunity holding.

S14G1878 Travelers Home and Marine Ins. Co. v. Castellanos

In a unanimous opinion by Justice Hunstein, the Supreme Court of Georgia held that Castellanos, an insured driver, not Travelers, the uninsured motorist carrier, had the burden of proof to show both that the other driver was an uninsured motorist and that his carrier had legally denied him coverage. The Court reversed the decision of the Georgia Court of Appeals, which had divided 4-3 in assigning that burden to Travelers.

After a 2009 car accident, Castellanos filed suit against the other driver, Santiago, who was defended by United, his insurance carrier, but Santiago did not appear at trial. Castellanos was awarded compensatory and punitive damages, but United denied coverage for that award because Santiago did not cooperate in his defense. Castellanos then sought compensation from Travelers, under his uninsured motorist coverage. When Travelers did not respond to his demand, Castellanos filed suit claiming a bad faith failure to pay. In its defense, Travelers contended that United did not “legally deny” coverage to Santiago, which would make him uninsured, and that, as a result, Castellanos had no claim under the policy.

The trial court ruled in favor of Travelers, concluding that Castellanos “failed to present evidence that there was a ‘legal denial’ of coverage by United.” The Court of Appeals reversed, holding that “once Castellanos met his threshold burden of showing he was entitled to UM benefits, Travelers had the burden of presenting such evidence [of Santiago’s failure to cooperate] to justify its denial of coverage, as it would for any other affirmative defense.” In dissent, Judge McMillan contended that Castellanos had the burden to show that Santiago was an uninsured motorist within the meaning of the Travelers policy.

The Supreme Court of Georgia took the case to “clarify the burden of proof issue” and “adopt[ed] the straightforward analysis of the Court of Appeals dissent.” It explained, “Castellanos bears the burden of producing evidence that (1) United reasonably requested Santiago’s cooperation in the tort litigation; (2) Santiago willfully and intentionally refused to cooperate; and (3) prejudice resulting therefrom.” While prejudice might be presumed from Santiago’s absence from trial, evidence to support Castellanos’ claim was lacking as to the other two elements.

S15A0406 Land USA LLC v. Georgia Power Co.

In a unanimous opinion by Chief Justice Thompson, the Supreme Court of Georgia reversed the trial court’s finding that Georgia Power had a valid and enforceable written easement over certain property, but affirmed the trial court’s denial of an ejectment. The Court remanded the case for further proceedings on those and other issues.

In conjunction with a road-widening project undertaken by the Georgia Department of Transportation, Georgia Power had to relocate an electrical transmission line. It sought to obtain an easement from Fuller through negotiations, then by a condemnation lawsuit; among other things, Georgia Power wanted to block Fuller and any future owners from building any structure within 25 feet of the line’s center. Georgia Power and Fuller reached an agreement, but not before Fuller’s property was sold at a tax sale. The road project was completed and the transmission line re-energized in January 2010.

The purchaser served notice of foreclosure of the right to redeem on, among others, Georgia Power, but the company took no action. The purchaser then sold the property to Land USA, which filed suit challenging the validity of the easement. The trial court ruled in favor of Georgia Power, holding that it had a valid and enforceable easement and rejecting Land USA’s claims for trespass and ejectment.

The Supreme Court of Georgia reversed in part, affirmed in part, and remanded the case. It held that, while Fuller retained an interest in the property even after the tax sale, that interest was insufficient to give Georgia Power the “perpetual, express easement it sought.” Instead, it gave Georgia Power a right of redemption, which it did not exercise. The Court explained, “Had the property been redeemed by any party, title thereto would have reverted to Fuller and the easement Georgia Power purchased would have been validated.” When no party exercised the right of redemption, fee simple title vested in the purchaser.

The Court further concluded that, insofar as O.C.G.A § 44-9-7 expressly provides that easements recorded before the recording of a tax fieri facias are not extinguished by a tax sale, it “implicitly provides that any easement not so recorded is extinguished if the property is not redeemed.” Because Georgia Power’s easement was recorded after the recording of both the tax fieri facias and the tax deed, that easement was subject to and extinguished by the interests acquired through the tax sale process.

The Court reversed the trial court’s decision in part, holding that Land USA had standing to sue Georgia Power in trespass. In particular, it is entitled to complain that the easement and any related building restrictions constitute a continuing trespass. Even so, the Court affirmed the trial court’s rejection of an ejectment remedy, concluding that Land USA’s remedy was limited to money damages and remanded the case for that determination.

No Forthcoming Opinions

May 22, 2015

The Supreme Court of Georgia will not be releasing any new opinions next week. The next scheduled date for oral arguments is June 1, 2015.

Released Opinions

May 13, 2015

On Monday, May 11, 2015, in addition to hearing oral argument, the Supreme Court of Georgia issued 24 opinions, five of which are within the scope of our coverage. Summaries of the cases and the opinions are below.

S14G1184 Estate of Callaway, et al. v. Garner, et al.

This case arose of out the breach of an oral contract to purchase stock in a closely-held corporation at a stated price. The trial court granted specific performance of the agreement directing the purchase to go forward and awarded prejudgment interest. The Court of Appeals affirmed.

In a decision by Justice Hunstein, the Supreme Court of Georgia unanimously reversed the award of prejudgment interest, but remanded the case for a determination whether prejudgment interest might be awarded on a different theory. The Court noted that, while O.C.G.A. § 13-6-13 allows for the recovery of “legal interest” in cases “where an amount ascertained would be the damages at the time of the breach,” that provision applies to the legal remedy for breach of contract. In contrast, specific performance is an equitable remedy. Moreover, the measure of contract damages is “very different” from an award of specific performance.

The Court remanded the case for a determination whether prejudgment interest might have been awarded under O.C.G.A. § 7-4-15. That provision allows for the recovery of interest on “[a]ll liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain.” On remand, whether a sufficient demand for prejudgment interest was made and whether the terms of  § 7-4-15 were met are to be determined.

S14G1223 Bostick v. CMM Properties, Inc., et al.

This case involves the application of res judicata. It arose out of a commercial lease that Bostick subleased to CMM. The lessor’s successor filed suit against CMM, but not Bostick, claiming that CMM was in default and seeking an award of liquidated damages. The trial court granted summary judgment to CMM concluding that the liquidated damages provision was a void and unenforceable penalty.

The lessor’s successor then filed suit against Bostick seeking the same damages it had sought in the earlier case. Bostick then filed a third-party complaint against CMM passing through the lessor’s claims. After CMM moved for summary judgment, but before the trial court ruled on its motion, Bostick settled with the lessor, agreeing to split whatever Bostick recovered from CMM. The trial court then ruled in favor of CMM, concluding, among other things, that Bostick’s claim was barred by res judicata. The Court of Appeals affirmed.

In a unanimous opinion by Presiding Justice Hines, the Supreme Court of Georgia reversed the decision of the Court of Appeals. It explained that for res judicata to apply the cause of action must be the same, the parties or their privies must be the same, and the decision must be made by a court of competent jurisdiction. Those requirements weren’t met in this case for two reasons. Bostick and CMM were not adversaries in the first lawsuit; CMM can’t assert res judicata against a party that was on its side in that case. In addition, Bostick was not a party to the first lawsuit.

S14G1775 Oliver et al. v. McDade, et al.

This appeal addresses the circumstances in which claims for emotional distress can be made pursuant to the pecuniary loss rule. In 1989, the Supreme Court of Georgia stated, “[F]or a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must result as a tort involving an injury to the person even though this injury may not be physical.” OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 667 (B), 386 S.E. 2d 186 (1989). Even so, “[i]n a claim involving negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” Ryckeley v. Calloway, 261 Ga. 828, 412 S.E. 2d 826 (1992).

McDade was seriously injured and a friend was killed in a traffic accident. He sought damages for emotional distress which he attributed in full to the defendants and said they were caused by both his own injuries and having to witness his friend’s death. The latter will not support a claim for emotional distress damages. The trial court denied Oliver’s motion for partial summary judgment with respect to McDade’s claim for damages for emotional distress. The Court of Appeals affirmed the denial of Oliver’s motion in Division 1 of its opinion, but divided to go on to assert that McDade could seek damages for emotional distress under the pecuniary loss rule in Division 2.

The Supreme Court of Georgia affirmed the denial of Oliver’s motion, explaining that “it is currently not possible to determine, as a question of fact, whether any portion of McDade’s emotional distress arises solely from witnessing the injuries to his friend.” The Court vacated Division 2 of the Court of Appeals’ decision because it “assume[d] facts not fully developed and opine[d] as to how the law would apply to assumed facts.”

S15Q0286 FCCI Insurance Co. v. McClendon Enterprises, Inc., et al.

In a unanimous opinion by Presiding Justice Hines, the Supreme Court of Georgia responded to a question certified by the Eleventh Circuit Court of Appeals. The Supreme Court of Georgia held that, under Georgia law, “[a]n insured party can recover under an uninsured-motorist insurance policy providing that the insurer will pay sums ‘the insured is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle’ despite the partial sovereign immunity of the tortfeasor.”

The underlying case arose out of a traffic accident involving a McClendon Enterprises truck and an Evans County school bus. The Evans County school district exhausted its insurance coverage without satisfying all of the claims arising out of the accident, but it and its driver had sovereign immunity from any excess claim. An injured McClendon employee sought additional compensation from McClendon’s uninsured motorist coverage.

In Tinley v. Worldwide Ins. Co., 212 Ga. App. 809, 442 S.E. 2d 877 (1994), the Georgia Court of Appeals held that an injured couple could recover under their uninsured motorist coverage even though the party responsible had complete sovereign immunity. In such a case, the defendant’s sovereign immunity bars both a lawsuit against the sovereign defendant and the entry of a judgment against it, both of which are necessary to the pursuit of an insurer. The Georgia Supreme Court reasoned that it made no sense to allow an uninsured motorist claim when the defendant had complete immunity and to deny the claim when immunity was only partial.

S15A0362 and S15A0641 McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC

This case arose from an advertisement that McHugh Fuller, a Mississippi law firm, placed in the Toccoa GA newspaper claiming that the local PruittHealth facility had been cited for deficiencies by the government and inviting those who suspected abuse to call. PruittHealth responded with a lawsuit seeking injunctive relief under the Georgia Deceptive Trade Practices Act. PruittHealth also sought a temporary restraining order to block any further advertisements, which the trial court granted. After a subsequent hearing to “determine whether injunctive relief should continue,” the trial court enjoined McHugh Fuller from publishing such an advertisement in the future and directing it to remove all electronic postings of it.

After the trial court entered its order, McHugh Fuller filed an answer and a motion in which it contended that the trial court erred in granting what was, in effect, a permanent injunction. The trial court did not act on the motion, and McHugh Fuller filed notice of appeal. After parties disagreed on whether McHugh Fuller’s answer and motion were to be part of the record on appeal, the trial court ruled that they would not. McHugh Fuller also filed notice of appeal from that order.

In a unanimous opinion by Justice Hunstein, the Supreme Court of Georgia held that the trial court erred “by granting permanent injunctive relief at the conclusion of the interlocutory hearing without giving McHugh Fuller clear notice at the time that it was doing so.” A trial court can consolidate trial on the merits with the interlocutory hearing, but it must provide notice to the parties before doing so. There was no such notice in the record. The Court also rejected the contention that permanent relief could be granted because McHugh Fuller did not object to the order when it was announced.

With respect to the appellate record, the Supreme Court of Georgia reversed the trial court’s exclusion of documents filed after it ruled. The Court explained that it is the appellant’s duty to designate the appellate record, and the appellee’s right to supplement it with anything it sees as missing. Even if the trial court rules on any disputes over the contents, all of the documents go forward. The Court explained,”[W]e discern no support for the notion of omitting from the appellate record any portion of the trial court’s record, designated for inclusion by either the appellant or the appellee, that was filed in the trial court as of the time the notice of appeal was filed.”

Next Week at the Court

May 8, 2015

On Monday and Tuesday, the Supreme Court of Georgia will hear oral argument in nine cases, four of which appear to be within the scope of our coverage. The Court will also issue opinions, and we will summarize them after they have been released. Summaries of the pertinent cases to be argued are below.

Monday, May 11, 2015, 10:00 am sitting

S15G0621 Nguyen v. Southwestern Emergency Physicians, P.C., et al.

This case is a medical malpractice claim directed at emergency medical providers by the parents of a child who suffered brain damage. After a six-month old baby fell off a bed, her mother took her to the emergency room. There, a physician’s assistant diagnosed a “minor injury” consisting of a “scalp contusion” without consulting a physician or ordering radiology studies. Several days later, however, on a return visit, the injury was identified as a large subdural hematoma.

The trial court granted Nguyen’s motion for partial summary judgment, holding that the physician’s assistant did not provide medical emergency care. OCGA § 51-1-29.5 establishes that claims arising from the provision of “bona-fide emergency services” provided in a “hospital emergency department” must be “proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.” Under the trial court’s ruling, Nyugen’s claims would be evaluated under an ordinary negligence standard.

The Court of Appeals unanimously reversed, holding that whether the medical providers provided “emergency medical care” presented a question of fact. Pointing to the Supreme Court of Georgia’s decision in Abdel-Samed v. Dailey, 294 Ga. 758, 755 S.E. 2d 805 (2014), the Court of Appeals observed that actual or genuine examination and diagnosis in an emergency room setting could constitute emergency medical care even if the diagnosis was incorrect. At the very least, it was up to a jury to consider the circumstances reflecting the emergency and the delivery of care.

S15G0321 Foster v. Georgia Regional Transportation Authority

This case arises from Foster’s fall on a commuter bus owned and operated by the Authority. She contends that the driver accelerated unexpectedly. The accident occurred on August 16, 2011, Foster provided ante litem notice of her intent to file suit on February 10, 2012, and she filed suit on September 18, 2013.

OCGA § 50-2-27 establishes a two-year statute of limitations for tort actions against state government entities. OCGA § 36-33-5 allows for the tolling of the statute of limitations for claims against local government entities, like municipalities, while the claim for payment is pending.

The trial court denied the Authority’s motion for judgment on the pleadings which was based on the contention that the statute of limitations was not tolled, but ran in August 2013, two years after the accident. The Court of Appeals reversed, holding that the Georgia Tort Claims Act “allows for the application of tolling provisions found elsewhere in the [Georgia] Code to the GTCA only if those tolling provisions can be harmonized with the express purposes of the GTCA.” (emphasis in original) Because State entities do not have to respond to ante litem notices and municipalities do, the court concluded that it could not impose a duty of response on the State. “Rather, the GTCA squarely places the burden on the complainant to timely file suit within the limitation period, even though a notice of claim remains pending.”

15A0816 Borders, et al. v. City of Atlanta, et al.

This case involves a class action filed by firefighters and employees of the City of Atlanta over changes to their pension programs. In June 2011, the City increased the contributions required from the firefighters and employees to their pension plans from those required when they signed up. The plaintiffs contend that the change unconstitutionally impairs their contracts in violation of the Georgia Constitution. The trial court rejected those claims and ruled in favor of the City. In addition, the trial court denied a motion for new trial based on a 2009 letter in which then-Mayor Shirley Franklin told the President of the City Council, “As you will recall from previous discussions on pensions, the City cannot legally decrease the benefits provide [sic] to current City employees.”

Monday, May 11, 2015, 2:00 pm sitting

S15A0833 Cochran v. Kendrick, et al.

This case involves a claim of racial discrimination by a white woman arising from the termination of her job by the Tax Commissioner of Augusta-Richmond County. In 2010, the Tax Commissioner, who is African-American, reorganized the office eliminating ten positions, creating three new ones, and restructuring eight others. In particular, he consolidated Cochran’s job of Director of Motor Vehicles and the Deputy Director of Motor Vehicles into a single position of Division Manager of Motor Vehicles. That new position required a Bachelor’s Degree in business, accounting, or a related field.

Cochran did not have such a degree, and her former deputy, who is African-American, had a college education. The African-American candidate got the new job, and Cochran filed suit. She contended that the elimination of her position violated the applicable procedures and that her termination “was motivated by racial prejudice.” The trial court granted Kendrick’s motion for summary judgment, concluding that Kendrick was immune from suit and that there was insufficient evidence of racial motivation in the decision to terminate Cochran’s employment.


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