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No Forthcoming Opinions

July 18, 2014
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The Supreme Court of Georgia will not be releasing any new opinions on Monday. The Court has concluded releasing its opinions for the April Term and will not hold oral argument again until September.

Released Opinions

July 11, 2014
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The Supreme Court of Georgia released the final opinions of the April Term this afternoon. Summaries of the six cases within the scope of our coverage are below with links to the opinions. The Court will next hold oral argument in September.

S13G1048. CARTER v. PROGRESSIVE MOUNTAIN INS.

This case began with a car wreck. Carter was injured and settled with the insurance carrier of the other driver for the $30,000 policy limit and provided a limited release under OCGA § 33-24-41.1, but with the added condition that $29,000 of the payment was allocated to punitive damages and $1,000 was allocated to compensatory damages. Carter then sued her underinsured motorst carrier, Progressive. The trial court granted Progressive’s motion for summary judgment, finding that, by imposing a condition on the settlement funds, Carter failed to comply with OCGA § 33-24-41.1 and was thus prevented from recovering underinsured motorist benefits.

The Court of Appeals (Andrews, Doyle, Boggs) unanimously affirmed the trial court decision, finding that the statute that allows for the limited release prior to seeking recovery from an underinsured carrier (OCGA § 33-24-41.1) only applies to actual losses, not punitive damages. The condition imposed to allocate $29,000 to punitive damages undermines the purpose of the statute and its requirement that the claimant must substantially exhaust other available coverage.

On September 23, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to consider the following issue:

  1. Did the Court of Appeals misconstrue OCGA § 33-24-41.1?

The case was heard on January 7, 2014.

On July 11, 2014, the Supreme Court unanimously reversed the Court of Appeals. Writing for the Court, Presiding Justice Hines explained that punitive damages cannot be covered under uninsured motorist coverage, but that does not prevent an allocation in the release at issue. Because punitive damages arise from a compensable injury, OCGA § 33-24-41.1 does not prevent a portion of the payment from being allocated to punitive damages.

S13G1127. COOK et al. v. GLOVER

This case involves the proper interpretation of federal law regarding individuals who purchase annuities while applying for Medicaid coverage of their nursing home costs. Glover lives in a nursing home and applied for Medicaid to cover his care. When he applied for Medicaid benefits, Glover had purchased an irrevocable annuity, which provides monthly benefits. The state asked for documentation that Glover had named the State of Georgia as the remainder beneficiary, as required by the state Medicaid Manual. Glover claimed that the requirement was not applicable and in violation of federal law. The state approved his application, but imposed a multi-month penalty precluding benefit payments during the asset transfer penalty period. Glover sought review before a state administrative hearing and the OSAH judge recommended reversing the penalty, finding the annuity did not fall within the definition of an asset for purposes of the penalty. The Department of Community Health reinstated its earlier decision imposing the penalty and Glove sought review. After the superior court affirmed the agency’s decision, Glover applied for discretionary review.

The Court of Appeals (Branch, Miller, Ray) unanimously reversed the trial court decision, finding that, although annuities are generally included under the asset transfer penalties if the state is not named as a remainder beneficiary, purchasing certain types of annuities (including those purchased by the applicant for Medicaid) is not considered a transfer of assets for purposes of the penalty. The state Medicaid Manual fails to exempt annuities that were purchased by the applicant and thus violates federal law.

On September 9, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals properly interpreted 42 U. S. C. 1396p concerning a Medicaid applicant’s purchase of an annuity?

The case was heard on January 21, 2014.

On July 11, 2014, the Supreme Court unanimously reversed the Court of Appeals (Nahmias and Blackwell concurring specially). Writing for the Court, Chief Justice Thompson explained that the statutory provisions are not clear regarding whether each section must be satisfied to exempt an annuity from the penalty. Because the statute is ambiguous, the reasonable regulations of DCH are entitled to Chevron-style deference. As a result, even though the Court of Appeals’ construction of the statute may be reasonable, the Supreme Court will defer to DCH’s interpretation instead. Concurring specially, Justice Nahmias would have found the CMS letter on which the DCH interpretation was based was only entitled to Skidmore deference.

S13G1197. MILLER et al. v. DEAL et al.

The plaintiffs in this case are fathers who sued the Governor and other officials, claiming that individuals facing jail time as a result of civil child support contempt proceedings are entitled to lawyers to protect their due process rights. The complaint sought class certification and on December 30, 2011, the trial court certified a class of “all indigent parents who, without appointed counsel and without constitutionally mandated procedural protections to ensure fundamentally fair proceedings, face incarceration for nonpayment or underpayment of child support in child support contempt proceedings where the Georgia Department of Human Services (DHR) is represented by [S]tate-funded counsel.” The State appealed the certification order.

The Court of Appeals (Ray and Branch, Miller concurring in judgment only) unanimously reversed the trial court decision, finding that the plaintiffs failed to demonstrate several necessary elements of a class action. While the trial court found the class consisted of those denied counsel, none of the plaintiffs requested counsel “at or prior to” the proceedings in question. Under precedent, the trial court is not under a duty to inquire whether the parties were entitled to counsel, and thus there can be no showing of a common injury. In addition, the Court of Appeals found the interests and injuries of the plaintiffs were not typical.

On September 23, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to review the following issue:

  1. Did the Court of Appeals err in reversing the trial court’s class certification order?

The case was heard on January 21, 2014.

On July 11, 2014, the Supreme Court affirmed the Court of Appeals in a 6-1 decision (Benham, dissenting). Writing for the Court, Justice Blackwell explained that the plaintiffs did not waive their right to counsel by failing to insist on counsel in a proceeding where no one advised them they had such a right. But the U.S. Supreme Court has not created a categorical right to appointed counsel in civil proceedings, even when incarceration may result. Without a categorical right, the questions regarding civil contempt become highly individualized, precluding any showing of commonality, typicality, and common injury. Justice Benham in dissent would have found the Georgia constitution provided a categorical right.

S13G1582. DILLARD LAND INVESTMENTS, LLC v. FULTON COUNTY

This case arises out of an attempt by Fulton County to condemn land. In 2012, Fulton filed a petition to condemn 12 acres owned by Dillard Land Investments, for purposes of expanding its library facilities. After a hearing, the special master determined the land’s value was nearly $5.2 million. After the trial court entered the judgment adopting the award, but before the amount had been paid, Fulton filed a voluntary dismissal of its petition. Dillard then filed an emergency motion to vacate the voluntary dismissal, which the trial court granted, setting aside the dismissal and allowing the parties to file non-value exceptions to the award. Fulton filed an interlocutory appeal.

The Court of Appeals (Doyle, McFadden, Boggs) unanimously reversed the decision of the trial court, finding that Fulton had not yet paid any award or taken title to the land. Instead, Fulton dismissed the petition two days after the premature entry of the trial court’s judgment, which it was entitled to do.

On November 4, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Did the [Court of Appeals] err in holding that a condemnor is authorized to unilaterally dismiss a condemnation proceeding, which it instituted before a special master, after the special master entered its award, but before the amount of the award is paid into the county registry or to the condemnee?

The case was heard on February 17, 2014.

On July 11, 2014, the Supreme Court unanimously reversed the Court of Appeals. Writing for the Court, Justice Nahmias explained that a condemnor may not voluntarily dismiss a condemnation action unilaterally after the value of the property has been awarded by the assessors. While all special master proceedings require a formal judgment, the effect of an award determining the value of the property is the same as when it is rendered by assessors.

S13G1723 Georgia-Pacific Consumer Products, LP v. Ratner et al.

Georgia-Pacific operates a facility in Effingham County that includes a paper mill, a power plant, a wastewater treatment plan, a landfill, and sludge fields. The facility has operated since 1986, but in 1992 Georgia-Pacific began to receive complaints about noxious gases that came from the facility. After addressing these complaints, in 2006 the complaints began anew, especially from homeowners in a subdivision across the street from the facility. The complaints included personal discomfort, such as irritation to the skin and eyes, and damage to household equipment, such as air conditioners. Georgia-Pacific ultimately identified the gas a hydrogen sulfide fumes related to the wastewater treatment process and took a number of steps to resolve the situation, ultimately closing three of the sludge pits thought to be the source. Georgia-Pacific also paid to replace or repair air conditioning units for at least 20 homes.

The plaintiffs filed suit in 2010 and sought class certification for a class consisting of all citizens owning property within a half-mile of a particular geographic point near the facility. The area included 34 residential property and 33 industrial or agricultural properties. The trial court certified the class and Georgia-Pacific appealed.

A seven-judge panel of the Court of Appeals affirmed the decision in a 4-3 vote (Ellington, Phipps, Barnes, Miller voting to affirm; Andrews, Ray, Branch dissenting), adopting the analysis of the trial court and finding trial court did not abuse its discretion when it found the proposed class met the requirements of OCGA 9-11-23(a), particularly that the class was numerous, that there were common questions of fact and law, that the claims were typical, and the class was adequately represented. The Court of Appeals also found the requirement of OCGA 9-11-23(b)(3) applied, because the question of law or fact that were common predominated over any individual questions. In dissent, Judge Branch would have found the trial court abused its discretion because plaintiffs had not shown that the members of the class have suffered “the same injury” and, as a result, individualized determinations are necessary. She also would have found that the boundaries of the proposed class were drawn arbitrarily instead of based on evidence in the record.

On November 18, 2013 the Supreme Court granted the petition for certiorari in a 4-3 vote (Thompson, Benham, Hunstein dissenting) to consider the following issue:

  1. Did the Court of Appeals err in affirming the trial court’s class certification order?

The case was heard on February 17, 2014.

On July 11, 2014, the Supreme Court reversed the Court of Appeals in a 5-2 decision (Benham and Hunstein dissenting). Writing for the Court, Justice Blackwell explained that plaintiffs were required to show that class members “have suffered the same injury,” pointing out the same instance or course of wrongful conduct, and that this common contention is capable of classwide resolution.Plaintiffs pointed to a common contention about the release of hydrogen sulfide gas, but they cannot show the contention was capable of classwide resolution because of the lack of scientific evidence regarding the area of the release. Finding commonality not met, the Court did not reach questions regarding typicality and predominance. Justice Melton concurred, finding that typicality was also not met. Justice Hunstein in dissent would have found the trial court was within its discretion to certify the class.

S14Q0454 Federal Deposit Ins. Corp. v. Loudermilk et al.

This case began when the Buckhead Community Bank failed. Beginning in 2005, the Bank pursued an aggressive growth strategy, increasing its loan portfolio by 240% over the next two years, mostly in high-risk real estate and construction loans. The bank failed in December 2009 and the FDIC took over as the receiver. The FDIC then sued nine former officers and directors in federal court, alleging they were negligent and grossly negligent in violating the Bank’s loan policies, which resulted in $21.8 million in damage to the Bank. The former officers and directors moved to dismiss, arguing the business judgment rule protected them as directors and officers from claims of ordinary negligence. The federal court denied the motion without prejudice, but said it would certify the unsettled question of Georgia law.

The Northern District of Georgia certified the following question to the Supreme Court along with its order on the motion to dismiss:

  1. Does the business judgment rule in Georgia preclude as a matter of law a claim for ordinary negligence against the officers and directors of a bank in a lawsuit brought by the FDIC as receiver for the bank?

The case was heard on April 21, 2014.

On July 11, 2014, the Supreme Court unanimously answered the question. Writing for the Court, Justice Blackwell first explained that the business judgment rule in Georgia common law generally prevents claims that sound in ordinary negligence against officers and directors for decisions they make, unless those decisions were made without deliberation, without requisite diligence, or in bad faith. The statutory provisions governing bank directors are consistent with the common law rule and thus the common law rule was not superseded by the statute. As a result, the business judgment rule precludes some claims against bank directors and officers. The statute presumes it is reasonable for an officer or director to rely on information laid out in OCGA § 7-1-490(a), and such good faith reliance on that information “cannot be questioned in court.” Directors and officers are presumed to have acted in good faith, although that presumption can be rebutted.

Forthcoming Opinions

July 10, 2014
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As it closes out the April Term, the Supreme Court of Georgia will be releasing 11 opinions tomorrow at 2:00 pm. Summaries of the six cases within the scope of our coverage are below and we will update tomorrow with links to the opinions.

S13G1048. CARTER v. PROGRESSIVE MOUNTAIN INS.

This case began with a car wreck. Carter was injured and settled with the insurance carrier of the other driver for the $30,000 policy limit and provided a limited release under OCGA § 33-24-41.1, but with the added condition that $29,000 of the payment was allocated to punitive damages and $1,000 was allocated to compensatory damages. Carter then sued her underinsured motorst carrier, Progressive. The trial court granted Progressive’s motion for summary judgment, finding that, by imposing a condition on the settlement funds, Carter failed to comply with OCGA § 33-24-41.1 and was thus prevented from recovering underinsured motorist benefits.

The Court of Appeals (Andrews, Doyle, Boggs) unanimously affirmed the trial court decision, finding that the statute that allows for the limited release prior to seeking recovery from an underinsured carrier (OCGA § 33-24-41.1) only applies to actual losses, not punitive damages. The condition imposed to allocate $29,000 to punitive damages undermines the purpose of the statute and its requirement that the claimant must substantially exhaust other available coverage.

On September 23, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to consider the following issue:

  1. Did the Court of Appeals misconstrue OCGA § 33-24-41.1?

The case was heard on January 7, 2014.

S13G1127. COOK et al. v. GLOVER

This case involves the proper interpretation of federal law regarding individuals who purchase annuities while applying for Medicaid coverage of their nursing home costs. Glover lives in a nursing home and applied for Medicaid to cover his care. When he applied for Medicaid benefits, Glover had purchased an irrevocable annuity, which provides monthly benefits. The state asked for documentation that Glover had named the State of Georgia as the remainder beneficiary, as required by the state Medicaid Manual. Glover claimed that the requirement was not applicable and in violation of federal law. The state approved his application, but imposed a multi-month penalty precluding benefit payments during the asset transfer penalty period. Glover sought review before a state administrative hearing and the OSAH judge recommended reversing the penalty, finding the annuity did not fall within the definition of an asset for purposes of the penalty. The Department of Community Health reinstated its earlier decision imposing the penalty and Glove sought review. After the superior court affirmed the agency’s decision, Glover applied for discretionary review.

The Court of Appeals (Branch, Miller, Ray) unanimously reversed the trial court decision, finding that, although annuities are generally included under the asset transfer penalties if the state is not named as a remainder beneficiary, purchasing certain types of annuities (including those purchased by the applicant for Medicaid) is not considered a transfer of assets for purposes of the penalty. The state Medicaid Manual fails to exempt annuities that were purchased by the applicant and thus violates federal law.

On September 9, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals properly interpreted 42 U. S. C. 1396p concerning a Medicaid applicant’s purchase of an annuity?

The case was heard on January 21, 2014.

S13G1197. MILLER et al. v. DEAL et al.

The plaintiffs in this case are fathers who sued the Governor and other officials, claiming that individuals facing jail time as a result of civil child support contempt proceedings are entitled to lawyers to protect their due process rights. The complaint sought class certification and on December 30, 2011, the trial court certified a class of “all indigent parents who, without appointed counsel and without constitutionally mandated procedural protections to ensure fundamentally fair proceedings, face incarceration for nonpayment or underpayment of child support in child support contempt proceedings where the Georgia Department of Human Services (DHR) is represented by [S]tate-funded counsel.” The State appealed the certification order.

The Court of Appeals (Ray and Branch, Miller concurring in judgment only) unanimously reversed the trial court decision, finding that the plaintiffs failed to demonstrate several necessary elements of a class action. While the trial court found the class consisted of those denied counsel, none of the plaintiffs requested counsel “at or prior to” the proceedings in question. Under precedent, the trial court is not under a duty to inquire whether the parties were entitled to counsel, and thus there can be no showing of a common injury. In addition, the Court of Appeals found the interests and injuries of the plaintiffs were not typical.

On September 23, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to review the following issue:

  1. Did the Court of Appeals err in reversing the trial court’s class certification order?

The case was heard on January 21, 2014.

S13G1582. DILLARD LAND INVESTMENTS, LLC v. FULTON COUNTY

This case arises out of an attempt by Fulton County to condemn land. In 2012, Fulton filed a petition to condemn 12 acres owned by Dillard Land Investments, for purposes of expanding its library facilities. After a hearing, the special master determined the land’s value was nearly $5.2 million. After the trial court entered the judgment adopting the award, but before the amount had been paid, Fulton filed a voluntary dismissal of its petition. Dillard then filed an emergency motion to vacate the voluntary dismissal, which the trial court granted, setting aside the dismissal and allowing the parties to file non-value exceptions to the award. Fulton filed an interlocutory appeal.

The Court of Appeals (Doyle, McFadden, Boggs) unanimously reversed the decision of the trial court, finding that Fulton had not yet paid any award or taken title to the land. Instead, Fulton dismissed the petition two days after the premature entry of the trial court’s judgment, which it was entitled to do.

On November 4, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Did the [Court of Appeals] err in holding that a condemnor is authorized to unilaterally dismiss a condemnation proceeding, which it instituted before a special master, after the special master entered its award, but before the amount of the award is paid into the county registry or to the condemnee?

The case was heard on February 17, 2014.

S13G1723 Georgia-Pacific Consumer Products, LP v. Ratner et al.

Georgia-Pacific operates a facility in Effingham County that includes a paper mill, a power plant, a wastewater treatment plan, a landfill, and sludge fields. The facility has operated since 1986, but in 1992 Georgia-Pacific began to receive complaints about noxious gases that came from the facility. After addressing these complaints, in 2006 the complaints began anew, especially from homeowners in a subdivision across the street from the facility. The complaints included personal discomfort, such as irritation to the skin and eyes, and damage to household equipment, such as air conditioners. Georgia-Pacific ultimately identified the gas a hydrogen sulfide fumes related to the wastewater treatment process and took a number of steps to resolve the situation, ultimately closing three of the sludge pits thought to be the source. Georgia-Pacific also paid to replace or repair air conditioning units for at least 20 homes.

The plaintiffs filed suit in 2010 and sought class certification for a class consisting of all citizens owning property within a half-mile of a particular geographic point near the facility. The area included 34 residential property and 33 industrial or agricultural properties. The trial court certified the class and Georgia-Pacific appealed.

A seven-judge panel of the Court of Appeals affirmed the decision in a 4-3 vote (Ellington, Phipps, Barnes, Miller voting to affirm; Andrews, Ray, Branch dissenting), adopting the analysis of the trial court and finding trial court did not abuse its discretion when it found the proposed class met the requirements of OCGA 9-11-23(a), particularly that the class was numerous, that there were common questions of fact and law, that the claims were typical, and the class was adequately represented. The Court of Appeals also found the requirement of OCGA 9-11-23(b)(3) applied, because the question of law or fact that were common predominated over any individual questions. In dissent, Judge Branch would have found the trial court abused its discretion because plaintiffs had not shown that the members of the class have suffered “the same injury” and, as a result, individualized determinations are necessary. She also would have found that the boundaries of the proposed class were drawn arbitrarily instead of based on evidence in the record.

On November 18, 2013 the Supreme Court granted the petition for certiorari in a 4-3 vote (Thompson, Benham, Hunstein dissenting) to consider the following issue:

  1. Did the Court of Appeals err in affirming the trial court’s class certification order?

The case was heard on February 17, 2014.

S14Q0454 Federal Deposit Ins. Corp. v. Loudermilk et al.

This case began when the Buckhead Community Bank failed. Beginning in 2005, the Bank pursued an aggressive growth strategy, increasing its loan portfolio by 240% over the next two years, mostly in high-risk real estate and construction loans. The bank failed in December 2009 and the FDIC took over as the receiver. The FDIC then sued nine former officers and directors in federal court, alleging they were negligent and grossly negligent in violating the Bank’s loan policies, which resulted in $21.8 million in damage to the Bank. The former officers and directors moved to dismiss, arguing the business judgment rule protected them as directors and officers from claims of ordinary negligence. The federal court denied the motion without prejudice, but said it would certify the unsettled question of Georgia law.

The Northern District of Georgia certified the following question to the Supreme Court along with its order on the motion to dismiss:

  1. Does the business judgment rule in Georgia preclude as a matter of law a claim for ordinary negligence against the officers and directors of a bank in a lawsuit brought by the FDIC as receiver for the bank?

The case was heard on April 21, 2014.

This Week at the Court

July 7, 2014

The Supreme Court of Georgia is hearing one day of oral argument today. None of the six cases are within the scope of our coverage.

The Court also will not be releasing any new opinions this week. The Court has not yet set its next date for oral argument.

Released Opinions

June 30, 2014
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This morning, the Supreme Court of Georgia released opinions in 14 cases, six of which are within the scope of our coverage. Summaries of the cases and opinions are below.

The Court’s next scheduled date for oral argument is July 7, 2014.

S13G1167. RODRIGUEZ v. THE STATE

This case is a criminal case, but raises procedural issues related to the jurisdiction of the Supreme Court and the Court of Appeals. (A reader alerted us to this case.) The case began when Sonia Rodriguez was stopped based on an automated scan of her license plate. During the stop, the officer found marijuana in the vehicle. Rodriguez moved to suppress the marijuana found during the stop, claiming the officer lacked a sufficient basis for the stop and unreasonably prolonged the detention after stopping her. The trial court denied her motion and Rodriguez filed an interlocutory appeal.

The Court of Appeals (Doyle, Andrews, Boggs) initially affirmed the trial court decision, but after a motion for reconsideration, issued a new, fractured decision, which still apparently affirmed the trial court ruling. The 12-member Court of Appeals issued a per curiam decision joined by two judges, and with respect to division 2 and the judgment by two other judges. Two additional judges concurred in the judgment only and six judges dissented, but on varying grounds. The per curiam opinion found that Rodriguez waived her claim that the initial stop was invalid, because the written amended motion did not make that assertion. But that opinion also found that Rodriguez had failed to show the search was not allowed because of an improper expansion of the duration of the stop. Judge Doyle (joined by three other judges) would have reversed the decision, finding that there was not a sufficient basis for the initial stop. Judge Dillard would have found that Rodriguez’s failure to give the state pre-hearing notice regarding the legal issues to be considered justifies vacating and remanding the case.

On September 9, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to consider the following issues:

  1. Whether the Court of Appeals was equally divided in this case and, therefore, ought to have transferred the case to this Court? See Ga. Const. of 1983, Art. VI, Sec. V, Par. V.
  2. If so, whether the trial court erred when it denied the motion to suppress?

The case was heard on January 7, 2014.

On June 30, 2014, the Supreme Court  vacated and remanded the case, voting 7-0 on the issue of jurisdiction and 5-2 on the search issues (Benham and Hunstein dissenting). Writing for the Court, Justice Blackwell explained that the Court of Appeals was equally divided on whether the denial of the motion to suppress should be affirmed, with six judges in favor and six judges opposed. While the Court recognized that the six judges who supported reversal did so on different grounds (or did not specify a basis) and may have differed about what should happen next in the trial court, this did not affect the outcome. The result was that six judges would have upheld the trial court judgment and six would have reversed. For that reason, the Court of Appeals was equally divided and should have transferred the case to the Supreme Court without rendering an opinion.

On the motion to suppress, the Court concluded that the process of inquiring and determining if Rodriguez or Williams were the subjects of outstanding warrants was minimally intrusive and justified by a reasonable investigation. Thus, the trial court correctly denied the motion to suppress and its judgment is affirmed.

S13G1651. MURPHY v. MURPHY

This case is purportedly an appeal of a ruling on a recusal motion, but hinges on the jurisdiction of Georgia appellate courts to hear direct appeals of child custody provisions of divorce decrees. Nancy and John Murphy were divorced in 2006, but John sought to modify the child support provisions of the decree in 2012. Nancy moved to disqualify the judge to whom the modification case was assigned and after the motion was denied, Nancy filed a notice of appeal.

The entire Court of Appeals dismissed the appeal in a 12-0 decision. Writing for the Court of Appeals, Judge McFadden explained that the statute previously allowed appeals from “[a]ll judgments or orders in child custody cases” but that in May 2013 (after Nancy filed her notice of appeal), the legislature limited the types of orders that were directly appealable to orders that awarded, refused to change, or modified child custody. Because the denial of the motion to disqualify did not award, refuse to change, or modify child custody, it was not immediately appealable and the appeal must be dismissed because the amended statute applied retroactively to the notice filed by Nancy. The Court of Appeals then explained why the collateral order doctrine did not apply to give it jurisdiction.

On November 4, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals erred when it concluded that the 2013 amendment of OCGA § 5-6-34 (a) (11) applies retroactively in an appeal filed before the enactment of the amendment.

The case was heard on February 4, 2014.

On June 30, 2014, the Supreme Court  unanimously affirmed the Court of Appeals. Writing for the Court, Justice Nahmias explained that the Court of Appeals reached the correct result, but applied the wrong analysis when it considered retroactivity. Under the prior version of OCGA § 5-6-34 (a) (11), there was no right of direct appeal from the recusal order because the statute limited those rights to orders in a case “regarding which parent has custody.” Because the recusal ruling was not that type of order, dismissal of the appeal was correct.

S14G0341 Georgia Dept. of Community Health v. Northside Hospital, Inc.S14G0346 Kennestone Hospital, Inc. v. Northside Hospital, Inc.

This case involves the placement of an ambulatory surgery center in Cobb County. Kennestone Hospital sought a certificate of need (CON) for an ambulatory surgery center. After the Department of Community Health granted initial approval based on the determination that the center would be part of a hospital, Northside Hospital sought administrative review. An appeal panel upheld the initial approval and Northside sought review in superior court. The superior court reversed the approval, finding the “case by case” provision of the Department’s rules regarding CONs to be unconstitutionally vague. The Department and Kennestone sought review and the Court of Appeals granted the applications.

The Court of Appeals (Miller, Barnes, Ray) unanimously affirmed the trial court ruling, finding that the Department’s rule is unconstitutionally vague. The rule does not provide anyone with a common understanding of how the Department would apply its “case by case” determinations in situations involving hospitals. The lack of guidelines and unlimited discretion make the regulation unconstitutionally vague.

On February 24, 2014, the Supreme Court of Georgia granted the petition for certiorari in a 4-2 vote (Hunstein and Melton, dissenting; Blackwell, not participating) to consider the following question:

  1. Did the Court of Appeals err in holding that Ga. Comp. R. & Regs. r. 111-2-2-.40(1) (a) was unconstitutionally vague?

The case was heard on May 5, 2014.

On June 30, 2014, the Supreme Court  unanimously reversed the Court of Appeals (Blackwell, not participating). Writing for the Court, Justice Melton explained that the rule at issue had to be read in context with the underlying statute and the surrounding language. A straightforward construction of the rule gives fair notice to those to whom it is directed and enables them to determine how to comply. Thus, the rule is not unconstitutionally vague on its face.

S14A0433 Lilly et al. v. Heard

This case involves an attempt to remove a member of the Baker County Board of Education. The plaintiffs brought this quo warranto action, seeking to remove the Board chair, claiming that he did not meet the residency requirements at the time he was elected. The trial court ruled in favor of the chair and the plaintiffs appealed.

The case was heard on March 3, 2014.

On June 30, 2014, the Supreme Court unanimously affirmed the decision of the trial court. Writing for the Court, Justice Hunstein explained that the trial court correctly dismissed the complaint based on the doctrine of res judicata. Because the General Assembly authorized local boards of elections to resolve factual disputes on candidate eligibility and prescribed rules of procedure, the board constitutes a “court of competent jurisdiction” for purposes of res judicata. The remaining elements of res judicata were met and thus the complaint was properly dismissed.

S14A0792 Avery et al. v. State of Georgia et al.

This case is an appeal of a bond validation proceeding involving an expansion of the taxiway at the Paulding County Airport. The Paulding County Airport Authority approved a bond resolution in September 2013 to expand the taxiway at the airport, allowing it to accommodate commercial aircraft. Paulding County agreed to pay the principal and interest on the bonds and the State filed a petition to validate the bonds. After a hearing, including allowing some residents to intervene, the judge validated the bonds and the residents appealed.

The case was heard on May 6, 2014.

On June 30, 2014, the Supreme Court unanimously affirmed the decision of the trial court (Nahmias, not participating). Writing for the Court, Justice Melton explained that the contract with Paulding County and the Airport Authority was an enforceable intergovernmental agreement and did not violate the Lending Clause or the Gratuities Clause of the constitution. In addition, sufficient notice of the meeting was provided and the meeting did not violate the Open Meetings Act. Thus, the bonds were properly validated.

S14A0926 Cooksey v. Landry et al.

This case involves whether a psychiatrist can refuse to turn over mental health records after a patient’s death. Dr. Crit Cooksey treated Christopher Landry for eight years. While under Cooksey’s care, Christopher committed suicide. Christopher had given his parents an authorization allowing Cooksey to disclose his protected health information to them, plus Christopher’s father was appointed the administrator of his estate. When the Landrys requested Christopher’s records, Cooksey refused, stating that he was prohibited from disclosing the records due to psychiatrist-patient privilege. The Landrys sued and the trial court ruled against Cooksey, requiring the records to be disclosed. Cooksey appealed.

The case was heard on June 2, 2014.

On June 30, 2014, the Supreme Court affirmed in part and reversed in part in a 5-2 vote (Benham and Hunstein dissenting). Writing for the Court, Chief Justice Thompson explained that the trial court exceeded its authority to order the production of information protected from disclosure by Georgia law. Because there is no statutory basis to force the production of the records, the Landrys brought an action in equity. But the equitable considerations cited by the trial court did not support the order to require production of privileged communications. By statute, the psychiatrist-patient privilege survives the death of the patient and a court sitting in equity cannot exercise its equitable powers to afford relief contrary to law. Thus, the trial court order is reversed to the extent it requires disclosure of privileged records, but affirmed to the extent it requires disclosure of non-privileged records.

Forthcoming Opinions

June 27, 2014
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On Monday, June 30, 2014, the Supreme Court of Georgia will release opinions in 14 cases, six of which are within the scope of our coverage. Summaries of the cases are below and we will update on Monday morning with links to the opinions.

S13G1167. RODRIGUEZ v. THE STATE

This case is a criminal case, but raises procedural issues related to the jurisdiction of the Supreme Court and the Court of Appeals. (A reader alerted us to this case.) The case began when Sonia Rodriguez was stopped based on an automated scan of her license plate. During the stop, the officer found marijuana in the vehicle. Rodriguez moved to suppress the marijuana found during the stop, claiming the officer lacked a sufficient basis for the stop and unreasonably prolonged the detention after stopping her. The trial court denied her motion and Rodriguez filed an interlocutory appeal.

The Court of Appeals (Doyle, Andrews, Boggs) initially affirmed the trial court decision, but after a motion for reconsideration, issued a new, fractured decision, which still apparently affirmed the trial court ruling. The 12-member Court of Appeals issued a per curiam decision joined by two judges, and with respect to division 2 and the judgment by two other judges. Two additional judges concurred in the judgment only and six judges dissented, but on varying grounds. The per curiam opinion found that Rodriguez waived her claim that the initial stop was invalid, because the written amended motion did not make that assertion. But that opinion also found that Rodriguez had failed to show the search was not allowed because of an improper expansion of the duration of the stop. Judge Doyle (joined by three other judges) would have reversed the decision, finding that there was not a sufficient basis for the initial stop. Judge Dillard would have found that Rodriguez’s failure to give the state pre-hearing notice regarding the legal issues to be considered justifies vacating and remanding the case.

On September 9, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to consider the following issues:

  1. Whether the Court of Appeals was equally divided in this case and, therefore, ought to have transferred the case to this Court? See Ga. Const. of 1983, Art. VI, Sec. V, Par. V.
  2. If so, whether the trial court erred when it denied the motion to suppress?

The case was heard on January 7, 2014.

S13G1651. MURPHY v. MURPHY

This case is purportedly an appeal of a ruling on a recusal motion, but hinges on the jurisdiction of Georgia appellate courts to hear direct appeals of child custody provisions of divorce decrees. Nancy and John Murphy were divorced in 2006, but John sought to modify the child support provisions of the decree in 2012. Nancy moved to disqualify the judge to whom the modification case was assigned and after the motion was denied, Nancy filed a notice of appeal.

The entire Court of Appeals dismissed the appeal in a 12-0 decision. Writing for the Court of Appeals, Judge McFadden explained that the statute previously allowed appeals from “[a]ll judgments or orders in child custody cases” but that in May 2013 (after Nancy filed her notice of appeal), the legislature limited the types of orders that were directly appealable to orders that awarded, refused to change, or modified child custody. Because the denial of the motion to disqualify did not award, refuse to change, or modify child custody, it was not immediately appealable and the appeal must be dismissed because the amended statute applied retroactively to the notice filed by Nancy. The Court of Appeals then explained why the collateral order doctrine did not apply to give it jurisdiction.

On November 4, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals erred when it concluded that the 2013 amendment of OCGA § 5-6-34 (a) (11) applies retroactively in an appeal filed before the enactment of the amendment.

The case was heard on February 4, 2014.

S14G0341 Georgia Dept. of Community Health v. Northside Hospital, Inc.S14G0346 Kennestone Hospital, Inc. v. Northside Hospital, Inc.

This case involves the placement of an ambulatory surgery center in Cobb County. Kennestone Hospital sought a certificate of need (CON) for an ambulatory surgery center. After the Department of Community Health granted initial approval based on the determination that the center would be part of a hospital, Northside Hospital sought administrative review. An appeal panel upheld the initial approval and Northside sought review in superior court. The superior court reversed the approval, finding the “case by case” provision of the Department’s rules regarding CONs to be unconstitutionally vague. The Department and Kennestone sought review and the Court of Appeals granted the applications.

The Court of Appeals (Miller, Barnes, Ray) unanimously affirmed the trial court ruling, finding that the Department’s rule is unconstitutionally vague. The rule does not provide anyone with a common understanding of how the Department would apply its “case by case” determinations in situations involving hospitals. The lack of guidelines and unlimited discretion make the regulation unconstitutionally vague.

On February 24, 2014, the Supreme Court of Georgia granted the petition for certiorari in a 4-2 vote (Hunstein and Melton, dissenting; Blackwell, not participating) to consider the following question:

  1. Did the Court of Appeals err in holding that Ga. Comp. R. & Regs. r. 111-2-2-.40(1) (a) was unconstitutionally vague?

The case was heard on May 5, 2014.

S14A0433 Lilly et al. v. Heard

This case involves an attempt to remove a member of the Baker County Board of Education. The plaintiffs brought this quo warranto action, seeking to remove the Board chair, claiming that he did not meet the residency requirements at the time he was elected. The trial court ruled in favor of the chair and the plaintiffs appealed.

The case was heard on March 3, 2014.

S14A0792 Avery et al. v. State of Georgia et al.

This case is an appeal of a bond validation proceeding involving an expansion of the taxiway at the Paulding County Airport. The Paulding County Airport Authority approved a bond resolution in September 2013 to expand the taxiway at the airport, allowing it to accommodate commercial aircraft. Paulding County agreed to pay the principal and interest on the bonds and the State filed a petition to validate the bonds. After a hearing, including allowing some residents to intervene, the judge validated the bonds and the residents appealed.

The case was heard on May 6, 2014.

S14A0926 Cooksey v. Landry et al.

This case involves whether a psychiatrist can refuse to turn over mental health records after a patient’s death. Dr. Crit Cooksey treated Christopher Landry for eight years. While under Cooksey’s care, Christopher committed suicide. Christopher had given his parents an authorization allowing Cooksey to disclose his protected health information to them, plus Christopher’s father was appointed the administrator of his estate. When the Landrys requested Christopher’s records, Cooksey refused, stating that he was prohibited from disclosing the records due to psychiatrist-patient privilege. The Landrys sued and the trial court ruled against Cooksey, requiring the records to be disclosed. Cooksey appealed.

The case was heard on June 2, 2014.

New Grants of Petitions for Certiorari in Civil Cases

June 26, 2014

The Supreme Court of Georgia has granted petitions for certiorari in several new cases over the past few weeks. Summaries of the new grants are below.

S14G0599. PETRAKOPOULOS et al. v. VRANAS

This case involves the breakup of a partnership. Petrakopolous, Mellas, and Vranas formed a MVP Investment Company as a partnership in 1991 to invest in real estate. Petrakopolous and Mellas owned Alpha Soda, which leased space from MVP. In December 2008, Petrakopolous told Vranas that Alpha Soda would have to reduce the rent it paid to MVP. While that disagreement was ongoing, Vranas signed a guaranty of MVP’s refinancing of its own debt at Petrakopolous’ prompting. Shortly after Vranas agreed to the new guaranty, Petrakopolous informed Vranas that Alpha Soda could no longer pay its rent and asked Vranas to invest additional capital in MVP. Petrakopolous then notified Vranas that if he did not invest additional capital in MVP within 10 days, Petrakopolous and Mellas would buy Vranas out. Vranas refused, and Petrakopolous then declared him in default. Vranas then sued Petrakopolous, Mellas, and Alpha Soda. The trial court denied Vranas’ motions for summary judgment and appointed an attorney as receiver and special master to handle the assets of the partnership. Petrakopolous, Mellas, and Alpha Soda appealed.

The Court of Appeals (McMillian, Dillard, Andrews) unanimously affirmed in part and reversed in part, finding first that it had jurisdiction because the trial court entered injunctive relief. The Court of Appeals then determined that the trial court abused its discretion in the appointment of a receiver/special master, because it did not give the parties notice and an opportunity to be heard, along with not including the required findings in the appointment order. Finally, the Court of Appeals found that the trial court properly denied summary judgment because of disputes of fact that remain regarding the claims of fraud and misrepresentation, breach of contract, unjust enrichment, and wrongful dissolution. The Court of Appeals found that Alpha Soda failed to establish that no contract existed and thus was not entitled to summary judgment on the unjust enrichment claim.

On June 16, 2014, the Supreme Court granted the petition for certiorari in a 6-1 vote (Hunstein, dissenting) to consider the following question:

  1. Did the Court of Appeals err in affirming the trial court’s denial of summary judgment on the respondent’s claim for unjust enrichment?

The case has been assigned to the October 2014 argument calendar.

S14G0919. GALA et al. v. FISHER et al.

This case involves whether a plaintiff can cure a defect in an affidavit filed with a medical malpractice complaint. In 2010, Fisher sought treatment for a back injury. Dr. Gala diagnosed an intradural spinal cord tumor and recommended removal. But when Gala performed the surgery, there was no tumor–instead there was a bundle of clumping nerve roots. Fisher claimed that, as a result of the negligence of Gala during the surgery, he suffered permanent damage to his nerves. Fisher sued Gala and several other doctors in 2012, attaching an affidavit from a family practice doctor. The neurosurgeons moved to dismiss the complaint, challenging the doctor’s competency to testify on neurosurgical care. In response, Fisher filed an amended complaint with an affidavit of a board-certified neurosurgeon. The trial court granted the motion to dismiss, finding Fisher could not comply with the requirements of OCGA § 9-11-9.1 by filing an amended complaint.

The Court of Appeals (Ellington and Phipps; Branch concurring in the judgment only) unanimously reversed, finding that under OCGA § 9-11-9.1 (e), a plaintiff has the opportunity to cure a defect in the expert affidavit. Because Fisher cured the problem with the affidavit, the trial court improperly dismissed the complaint.

On June 2, 2014, the Supreme Court granted the petition for certiorari in a 4-3 vote (Thompson, Benham, and Blackwell dissenting) to consider the following question:

  1. In a professional malpractice action, where the plaintiff files his complaint with an affidavit by a person not competent to testify as an expert in the action, does OCGA § 9-11-9.1 (e) permit the plaintiff to cure this defect by filing an amended complaint with an affidavit by a competent expert? See, e.g., Piscitelli v. Hosp. Auth. of Valdosta, 302 Ga. App. 746 (691 SE2d 746) (2010)

The case has been assigned to the September 2014 oral argument calendar.

S14G0619. CITY OF ATLANTA et al. v. MITCHAM

This case involves medical care for a prisoner. In 2010, Mitcham was arrested for hit and run. While incarcerated, Mitcham was taken to a hospital because of “low blood sugar associated with diabetes.” When Mitcham was discharged, the hospital notified the City of the need to monitor his blood sugar and provide him with insulin. When the City failed to monitor and regulate Mitcham’s insulin levels, he suffered serious and permanent injuries. Mitcham sued, and the City moved to dismiss the claim based on sovereign immunity. The trial court denied the motion and the City appealed.

The Court of Appeals (Phipps and Ellington; Branch, concurring specially) unanimously affirmed the trial court, finding that the provision of medical care to inmates is a ministerial act and, as a result, sovereign immunity was waived. Judge Branch, concurring specially, would have further clarified the standards related to whether a city providing medical care to an inmate was a governmental duty or a ministerial duty.

On May 19, 2014, the Supreme Court granted the petition for certiorari in a 5-2 vote (Hines and Melton dissenting) to consider the following question:

  1. What is the proper analysis for determining whether a municipality is entitled to sovereign immunity for an inmate’s claim for failure to provide medical care?

The case has been assigned to the September 2014 oral argument calendar.

S14G0753. PRIMUS v. CITY OF MILLEDGEVILLE

This case involves whether a city is liable for an injury to a corrections officer. The City of Milledgeville has a contract with the Georgia Department of Corrections to provide vehicles to transport prison inmates if those inmates were working for the City. In 2007, a corrections officer, Primus, was driving an inmate transport bus when the brakes failed. Primus steered the bus off the road and ran into a utility pole, suffering neck and shoulder injuries. A post-crash inspection of the bus showed that the front brake line burst, causing the failure. There was no apparent defect in the line and the mechanic who maintained the bus said the line would not typically be replaced in routine maintenance. Primus sued for negligence and the City moved to dismiss on sovereign immunity grounds. The trial court denied the motion, but certified the order for immediate review.

The Court of Appeals (Ellington, Phipps, Branch) unanimously reversed the trial court decision, finding that the decision on whether to replace the brake lines was a discretionary act and thus Primus’ suit is barred by sovereign immunity. While the City had a ministerial duty to inspect the lines, the issue is whether the specific act from which liability arose was ministerial or discretionary. Negligent inspection cases turn on whether there was a specific standard for inspections. There was no evidence that the City failed to follow a specific rule, procedure, or law, and thus the act was discretionary and the City was entitled to sovereign immunity.

On May 19, 2014, the Supreme Court granted the petition for certiorari in a 5-2 vote (Hines and Melton dissenting) to consider the following question:

  1. What is the proper analysis for determining whether a municipality is entitled to sovereign immunity under OCGA 36-33-1 (b)?

The case has been assigned to the September 2014 oral argument calendar.

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