On Monday, September 14, in addition to hearing oral arguments, the Supreme Court of Georgia released 27 opinions, three of which are within the scope of our coverage. Summaries of the cases and the opinions are below.
S15G0321 Foster v. Georgia Regional Transportation Authority
In a unanimous opinion by Justice Blackwell, the Supreme Court of Georgia held that the tolling provision in O.C.G.A. § 50-21-27(e) applies only to municipal corporations. The Georgia Regional Transportation is not a municipal corporation, so the running of the statute of limitations was not tolled while Foster’s demand for payment was pending before the Authority without action.
Foster claimed that she was injured in a bus accident on August 16, 2011. She gave notice of her claim to the Authority and the Georgia Department of Administrative Services before filing suit on September 18, 2013, more than two years after the alleged injury. Foster asserted that the statute of limitations was tolled while her claim was pending. After the trial court denied the Authority’s motion for judgment on the pleadings, the Authority filed an interlocutory appeal. The Georgia Court of Appeals reversed the trial court’s ruling, with Judge McMillian concurring in the result.
The Supreme Court disagreed with the Court of Appeals’ reasoning, but affirmed its judgment. In the context of this case, O.C.G.A. § 50-21-27(e) states, “[A]ll provisions relating to the tolling of actions, as provided elsewhere in this Code, shall apply to causes of action brought pursuant to [the Tort Claims Statute].” The Supreme Court explained that this provision “means just what it says: statutory tolling provisions apply to claims under the Tort Claims Act in the same way, in the same manner, and to the extent that those provisions would apply to claims not brought under the Tort Claims Act.” The tolling provision in question, O.C.G.A. § 36-33-6(d), is a subsection of a statutory provision that deals with claims against a “municipal corporation.”
The Supreme Court held, “By its own terms, OCGA § 36-33-5(d) permits the tolling of the period of limitation only for claims against municipal corporations. The Authority is not a municipal corporation, and for that reason, OCGA § 36-33-5(d) does not apply to any claims against the Authority, whether under the Tort Claims Act or otherwise.” The Court rejected Foster’s reliance on the Court of Appeals’ statement in Greene v. Team Properties, 544 SE 2d 726 (Ga. App, 2001) that, “giving ante litem notice under the statute involved in Howard [v. State of Ga.] automatically tolls the statute of limitation while the demand for payment is pending.” Because that statement “was dictum, and in any event, it was wrong,” the Supreme Court “disapprove[d]” it to the extent it suggested that O.C.G.A.§ 36-33-5(d) applies “to any claims other than those against municipal corporations.”
S15A0768 Debter, Caveator v. Stephens, Executor
In a unanimous opinion by Justice Melton, the Court dismissed Debter’s appeal from the trial court’s rejection of his challenge to the validity of William Stephens’ will. Debter and Vickie Estes were both fathered by Stephens and born out of wedlock, but Stephens provided only for Estes in his will. The trial court entered summary judgment against Debter in his challenge, and Debter filed a motion for new trial instead of an appeal. The Supreme Court held that a motion for new trial is not the proper vehicle for obtaining review of a ruling on summary judgment, so the filing of that motion was of no effect. In particular, it did not toll the running of the time for appeal even though it was based on the asserted discovery of new material evidence. Because Debter filed notice of appeal more than 30 days after the entry of summary judgment against him, his appeal was untimely.
S15A0833 Cochran v. Kendrick, et al.
In a unanimous opinion by Justice Benham, the Court affirmed the trial court’s entry of summary judgment against Cochran, a white woman who lost her position in the tax commissioner’s office in Augusta-Richmond County after that office was reorganized. The tax commissioner combined her position with another to improve the office’s efficiency and appointed an African-American woman to the new position. Cochran claimed that the Tax Commissioner failed to follow the applicable policies and procedures governing layoffs and reorganization and that she was the victim of racial discrimination. The trial court entered summary judgment against her.
The Supreme Court rejected Cochran’s reliance on the order of priority in Augusta-Richmond County’s Policies and Procedures Manual, because the policy manual of the tax commissioner’s office deemed that Manual only “guidance.” It noted that Cochran was not “a merit system employee with a vested interest in her continued employment.” In those circumstances, there was no ministerial duty that might be enforced through a writ of mandamus.
The Court also held that Kendrick had legitimate non-discriminatory reasons for abolishing Cochran’s position and for appointing her successor. In particular, the Court noted that the new position required a bachelor’s degree, which Cochran did not have. It rejected Cochran’s claims of race-based mistreatment by Kendrick reasoning, “Although it was clear that appellant did not like how she was, in her words, ‘handled’ by appellee, there is no evidence other than appellant’s own supposition that appellee was motivated by racial bias.”
The Supreme Court of Georgia did not issue any new opinions on August 24, 2015. The opinion issued on August 31, 2015 is not within the scope of our coverage. The next scheduled date for oral arguments is September 14, 2015.
The Supreme Court of Georgia did not issue any new opinions on August 17, 2015. The next scheduled date for oral arguments is September 14, 2015.
The Supreme Court of Georgia did not issue any new opinions on August 10, 2015. The next scheduled date for oral arguments is September 14, 2015.
The Supreme Court of Georgia did not issue any new opinions on August 3, 2015. While it did not issue any new opinions on July 27 either, it did issue a substitute opinion in Zaldivar v. Prickett, No. S14G1778, which was initially published on July 6, 2015. That amendment will be addressed in a separate post.
The next scheduled date for oral arguments has not been posted on the court’s website.
The Supreme Court of Georgia did not release any new opinions on July 20,2015. The next scheduled date for oral arguments has not been posted on the court’s website.
On Monday, July 13, the Supreme Court of Georgia released five opinions, three of which are within the scope of our coverage. Summaries of the cases and the opinions are below.
In a unanimous opinion by Justice Blackwell, the Supreme Court of Georgia held that a practicing surgeon who had performed many abdominal laparoscopic procedures in the previous five years was qualified to testify as an expert witness even though he had not used that procedure to repair an umbilical hernia during that time. The plaintiffs complained that David Dubois was the victim of medical malpractice after he developed acute pancreatitis and experienced other problems following an abdominal laparoscopy. The Supreme Court reversed the decision of the Georgia Court of Appeals, which reversed the trial court’s ruling denying Brantley’s motion to dismiss or, in the alternative, for summary judgment on the ground that Dubois’ expert was not competent to offer an opinion.
As required by O.C.G.A. § 9-11-9.1, Dubois offered a practicing general surgeon as an expert witness to support his claim of medical malpractice. That surgeon had done umbilical laparoscopies in the past, but now did open surgery. He opined that, if performed properly, no abdominal laparoscopic procedure should result in the puncture of the pancreas unless the pancreas is in an unusual location in the patient’s body.
The Supreme Court began with Georgia Rule of Evidence 702(c)(2), which requires, among other things, that an expert in a medical malpractice case be “a member of the same profession” as the defendant who is accused of medical malpractice and have particular knowledge and experience. It rejected Brantley’s contention that the plaintiff’s expert, who had done only one laparoscopy like the one involved in the case over the last five years, didn’t have the necessary experience in “performing the procedure” to serve as an expert. The Court explained that the statute and rule require “an appropriate level of knowledge,” which it defined to be “knowledge suitable or fitting for the rendering of the particular opinions to which the expert proposes to testify.” An expert has the necessary knowledge “to the extent the expert has knowledge about the performance of the procedure—however generally or specifically it is characterized, so long as it is the same procedure that the defendant is alleged to have performed negligently—to reliably give the opinions about the performance of the procedure that the expert proposes to give.” Accordingly, the Court held that the trial court did not abuse its discretion in allowing Dubois’ expert to testify.
In a unanimous opinion by Justice Hunstein, the Supreme Court rejected a challenge to Glynn County’s zoning ordinance. The Court upheld the trial court’s conclusion that the Burton’s use of their single-family oceanfront house as a venue for weddings and other large gatherings violated the zoning ordinance. It explained, “The frequency of the events and the apparently systematic manner in which the property has been marketed and utilized for large-scale gatherings support the conclusion that the property’s use an event venue has, as the trial court found, moved beyond that expected or customary for a one-family dwelling.”
In a unanimous opinion by Justice Blackwell, the Supreme Court of Georgia affirmed the trial court’s rejection of a retired teacher’s claim that she was entitled to more in the way of retirement income. She argued that the calculation’s use of “two consecutive years” meant 730 consecutive calendar days (unless a leap year was involved) not 24 consecutive calendar months. She also contested the calculation of “average compensation.” The trial court granted the Retirement Systems’ motion for summary judgment, and the Supreme Court affirmed.
In Chevron USA v. Natural Resources Defense Council, 467 U.S. 837 (1984), the United States Supreme Court set out a test for evaluating the validity of regulations promulgated by federal executive agencies. Under that test, a court looks first at whether Congress has directly addressed the question: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” If Congress has not spoken or has spoken ambiguously, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
The Georgia Supreme Court observed that, while it has not adopted the Chevron doctrine for state administrative law, “it often is useful to consult Chevron and its progeny in applying our own approach.” It explained, “[O]ur approach does closely resemble the Chevron approach in many respects, and both approaches reflect that same sorts of concerns about judicial respect for the legislative commitment of certain questions to the discretion of the Executive Branch and the special competence of officers and agencies of the Executive Branch.”
Under O.C.G.A § 47-3-120(a)(2), retirement income is calculated by reference to “average compensation over the two consecutive years of membership service producing the highest such average.” The Court determined that “two consecutive years” unambiguously meant 24 consecutive calendar months; that approach is consistent with the disposition of remittances of contributions and payment of allowances. Alternatively, if the statute was ambiguous, the Court noted that the General Assembly has given the Retirement System authority to resolve any statutory ambiguities. The System’s understanding of “two consecutive years” was not unreasonable, and the Court would defer to that understanding.