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.
On Monday, July 6, the Supreme Court of Georgia released nine opinions, two 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 the apportionment statute, O.C. G.A. § 51-12-33, requires the trier of fact to consider the fault of a “nonparty” in assessing damages for tortious injuries “only when the nonparty is shown to have committed a tort against a plaintiff that was a proximate cause of his injury.” The Court also held that negligent entrustment can be such a proximate cause and reversed the decision of a divided Georgia Court of Appeals.
After a traffic accident, Zaldivar and Prickett each blamed the other. Zaldivar asserted that Prickett was at fault and that his employer, Overhead Door Company, was guilty of negligently entrusting him with the truck involved in the accident. Zaldivar gave notice of the intent to ask the trier of fact to assign a portion of the damages attributable to Pickett to Overhead Door. The trial court granted Prickett’s motion for summary judgment asserting that negligent entrustment could not be a proximate cause of the injuries, and a divided Court of Appeals affirmed.
The Supreme Court reasoned that the apportionment statute addresses the fault of plaintiffs, defendants, and “all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” As for plaintiffs, they are responsible in proportion to their fault, but cannot recover if “50 percent or more responsible;” the statute, thus, codifies comparative negligence for plaintiffs. As for defendants, they are liable to the extent they are at fault, that is, to the extent there is “a breach of a legal duty that a defendant owes to a plaintiff that is a proximate cause of the injury for which the plaintiff now seeks to recover damages.”
With respect to O.C.G.A. § 51-12-33(c), which applies to “all persons or entities that contributed to the alleged injury or damages,” the Court explained that it “must refer to a breach of a legal duty in the nature of a tort that is owed for the protection of the plaintiff, the breach of which is a proximate cause of his injury.” That includes all persons or entities “regardless of their liability or potential liability to the plaintiff in tort.” The Court observes that not all tortfeasors can be held liable in tort; they may be protected by an affirmative defense or by immunity. “Subsection (c) , then, is properly understood to require the consideration of the ‘fault’ of four classes of persons or entities: plaintiffs (also covered in subsection (a)), defendants with liability (also covered in subsection (b)), defendants without liability, and nonparties.”
Measured against that standard, the claim of negligent entrustment directed at the nonparty Overhead Door could constitute a proximate cause of the injuries. To the extent that the Court of Appeals’ decision in Ridgeway v. Whisman, 210 Ga. App. 169, 435 S.E. 2d 624 (1993), could be read to say otherwise, as the majority in the Court of Appeals did, that understanding was “simply wrong.”
In a unanimous opinion by Justice Melton, the Supreme Court of Georgia held that a general contractor could not impose a constructive trust on funds paid to a bank on behalf of a subcontractor that did not pay its subcontractors and suppliers. The Court affirmed the decision of the Georgia Court of Appeals in part and reversed it in part.
The case arose out of a construction contract on which Brasfield & Gorrie was the general contractor and Wagner Enterprises, Inc. (“WEI”) was the drywall subcontractor. WEI pledged its receivables, including those from its contracts with Brasfield & Gorrie, to secure a loan from Vinings Bank. After WEI defaulted on the loan, Vinings Bank froze its accounts. WEI also failed to pay its subcontractors and suppliers, and Brasfield & Gorrie gave Vinings Bank general notice that some of the funds it was depositing in the bank for WEI’s benefit might be due to WEI’s subcontractors and suppliers. In the end, Vinings Bank applied the funds in WEI’s account to the debt, and Brasfield & Gorrie paid the subcontractors and suppliers of WEI to preserve the project from mechanic’s and materialmen’s liens.
The Supreme Court affirmed the denial of the Brasfield & Gorrie’s motion for summary judgment on its claim that the Bank converted the funds to the extent that they were due to WEI’s subcontractors and suppliers, asserting that they were held in a constructive trust. The Court held that Brasfield & Gorrie did not have standing to assert the counterclaim. It had no relationship to the Bank, was not one of WEI’s subcontractors or suppliers, and was not the beneficiary of an assignment of those subcontractors’ or suppliers’’ rights.
On Monday, June 29, the Supreme Court of Georgia issued 21 opinions, 9 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 police officer whose trained police dog escaped and attacked a child in the neighborhood was entitled to official immunity. Key’s son was attacked and injured by Eshleman’s police dog, which escaped from a portable kennel outside Eshleman’s home after she “evidently failed to secure the kennel door.” The Court outlined the difference between ministerial acts, which do not qualify for official immunity, and discretionary acts, which do. In reaching its decision that Eshleman was entitled to official immunity, the Court reversed the decisions of the trial court and the Court of Appeals.
The Supreme Court explained that, while public officials, including county law enforcement officers like Eshleman, are generally entitled to official immunity from tort claims, there are two exceptions. Key did not invoke the first exception, that the official acted with malice or the intent to injure. Instead, he contended that a state law addressing liability for the owners of dangerous or vicious animals and two county ordinances imposed an “absolute and sufficiently specific duty” on Eshleman.
The Supreme Court noted that an officer performing a function that had no duty of care associated with it, such that the officer “is equally entitled to do anything or nothing at all,” is performing a discretionary function and is entitled to immunity. It explained, “[E]ven when an officer clearly owes a duty of care and is absolutely required to do something, unless she has been commanded—by law or by the policy or directive of her employer—to do a particular thing, she is still engaged in the performance of a discretionary function.” (Emphasis in original.) The state law did no more than impose a general duty of ordinary care, which left the method of compliance up to Eshleman’s reasoned judgment. The county ordinances likewise imposed only a general duty of reasonable care.
In a unanimous opinion by Justice Nahmias, the Supreme Court of Georgia held that a covenant running with the land binds only those downstream purchasers of land with actual or constructive knowledge of the restriction. The Court affirmed the decision of the Georgia Court of Appeals and joined it in distinguishing that portion of Wardlaw v. Southern Railway Co., 199 Ga. 97, 98, 33 S.E. 2d 304 (1945), which stated that covenants running with the land bind future purchasers “with or without notice.” In the Court’s judgment, that statement was “poorly articulated” and dicta.
The covenant at issue was a 1971 family agreement to dig a well on one part of a family’s property and supply water to another subdivided portion. The burdened portion of the land was transferred by deed, then sold in 1996. The deed of sale included a “Special Agreement,” pursuant to which the purchasers agreed to provide water to McLeod’s house as long as he continued to occupy it in exchange for McLeod’s payment of a reasonable fee for electricity and well maintenance costs. Later in 1996, McLeod recorded the 1991 agreement. In addition, the pipes and water line connection have been visible and marked since 1971.
The well property was sold to Clements in 2007. The deed made the transfer “subject to that certain Special Agreement” contained in the 1996 deed. Clements stated that he didn’t know about the 1971 Agreement, but was aware of the 1996 agreement through the pipes that were visible on the burdened land. In 2008, McLeod stopped paying the costs, so Clements cut off the water, provoking the lawsuit.
The trial court granted Clements summary judgment with respect to the 1971 Agreement, but denied it as to the 1996 Agreement. The Court of Appeals affirmed the partial grant of summary judgment, and the Supreme Court affirmed. It held that the 1971 Agreement could not be enforced against Clements because he did not have either actual or constructive notice of it.
In a unanimous opinion by Presiding Justice Hines, the Supreme Court of Georgia addressed, among other things, the standard for evaluating a claim of spoliation of evidence and the circumstances in which a rebuttable presumption or adverse inference instruction should be given. It held that a duty to preserve evidence can arise even without actual notice of a claim or litigation from the prospective plaintiff. It reversed the decision of the Georgia Court of Appeals in part because it and the trial court applied the wrong legal standard to the spoliation claim.
Phillips claimed that her son suffered oxygen deprivation shortly before birth, resulting in severe, permanent neurological injuries. She sued Harmon and others for medical malpractice, and the jury returned a verdict in favor of the Defendants. In a motion for new trial, Phillips complained that the trial judge erred in communicating with the jury outside the presence of Phillips and her attorneys and in refusing to give an instruction on spoliation of evidence. The trial court denied the motion. The Court of Appeals held that Phillips was entitled to a new trial on the jury communication issue, but affirmed the denial of the requested spoliation instruction.
After lunch on the first day of deliberations, the jury asked what would happen if they could not reach a unanimous verdict. Without consulting counsel, the trial judge wrote, “Please continue deliberating” and sent the note back. That note disappeared, and its content had to be reconstructed. The Supreme Court explained that, insofar as it “cannot sanction communications of a substantive nature between a trial judge and the jury outside the presence of the defendant and counsel in a criminal trial, … it should not do so in a civil trial as such actions are no less a violation of a party’s right to be present during trial.”
The spoliation claim involved printed paper strips of the electronic monitoring of Phillips’ fetal heart rate. While the medical center’s records were maintained electronically, the nurses “often” made notes on the paper strips and referred to them in completing the official record. The medical center retained the strips for 30 days, then destroyed them in accordance with its standard procedure.
Phillips asked for an instruction of a rebuttable presumption that the notations would have been prejudicial to the Defendants. The trial court denied the request because the Defendants had “no knowledge or notice of potential litigation,” and the Court of Appeals affirmed that ruling. Phillips argued that the medical center’s triggering of an internal investigation was sufficient to give rise to a duty to preserve evidence.
The Supreme Court noted, “[T]he duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party.” For a plaintiff, contemplation of litigation alone is enough. For a defendant, “the duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of ‘notice’ to the defendant.” Notice can be actual or constructive. It can also be inferred from a defendant’s actions or other circumstances. The Court explained, “The defendant’s duty does not arise merely because the defendant investigated the incident, because there may be many reasons to investigate incidents causing injuries, from simple curiosity to quality assurance to preparation for possible litigation.”
The Supreme Court reversed because the spoliation rulings of the trial court and the Court of Appeals “appear to rest on the legally incorrect premise that a defendant’s duty to preserve evidence required notice of a claim or litigation from the plaintiff, i.e., actual notice, without regard to other circumstances.…” (Emphasis in original) It observed that the issue might recur on retrial and reminded the parties that a rebuttable presumption or adverse inference instruction should be given “only in exceptional cases.” (Quoting Cotton States Fertilizer Co. v. Childs, 179 Ga. 22, 23, 174 S.E. 708 (1934)). In addition, the Court noted that the medical center’s good or bad faith was “a relevant consideration.”
In a unanimous opinion by Chief Justice Thompson, the Supreme Court of Georgia rejected complaints from both parties about the trial court’s handling of a dispute over the disposition of the assets of several medical treatment companies.
In a unanimous opinion by Justice Nahmias, the Supreme Court of Georgia affirmed the validation of the revenue bonds that will be used to help finance the construction of a new stadium for the Atlanta Braves in Cobb County. The Court observed that “it is evident” the parties relied on the Court’s precedents, but “[t]here is nothing wrong with that.” It stated, “While aspects of the deal structure may push the law as far as it can go, it does not cross the line into illegality.” It did not “discount” the Appellants’ concerns about the wisdom of the deal, but viewed them as public policy concerns that are to be addressed politically, not legally.
The Court first upheld the intergovernmental agreement (IGA) between Cobb County and the Cobb-Marietta Coliseum and Exhibit Hall Authority, under which the Authority would issue revenue bonds, and the County would cover the portion of the bond payments not covered by the Atlanta Braves. It rejected the contention that the IGA was constitutionally invalid because it did not involve joint services or the joint or separate use of facilities or equipment and because it was not in pursuit of a activities its participants can lawfully provide. The Court held that the IGA qualified as a contract for services because the Authority and the County were each taking on some service obligations. In addition, it held that the stadium “certainly qualifies” as a recreational facility that the Authority can lawfully construct.
The Supreme Court also rejected the contention that the expenditures were not for a public purpose because the project was said to be exclusively for the benefit of the Braves. It noted that the Authority and County specifically determined that the project would be “a significant and much needed catalyst for revitalization and continuing redevelopment of the property in the vicinity of the stadium.” The determinations of public purpose were not overridden by the fact that the Braves would be providing some of the benefits or by the fact that admission fees would be charged.
The Supreme Court also rejected the contention that the revenue bonds violated the debt limitation provision of the Georgia Constitution, Ga. Const. of 1983, Art. IX, Sec. V, Par. I. It noted that the bond terms complied with the revenue bond laws. In addition, the County’s pledge to pay the Authority up to $25 Million a year for 30 years fell outside the debt limitation clause because the pledge was part of a valid intergovernmental agreement. The Court observed that it had repeatedly recognized that intergovernmental agreements are outside the debt limitation clause in construing the 1945, 1976, and 1983 Constitutions.
The Court also rejected the claim that the IGA violated the gratuities clause of the Constitution, Ga. Const. of 1983, Art. III, Sec. VI, Para. VI(a)(1). It noted that the County was receiving a substantial benefit from the IGA. It was not the Court’s job to decide whether the benefit was sufficient.
The Court likewise rejected the argument that the IGA violated the lending clause of the Constitution, Ga. Const. of 1983, Art. IX, Sec. II, Para. VIII, because “[t]he County is not paying, with appropriated funds or credit, for anything to be owned by the Braves parties.”
Finally, the Court rejected the contention that the revenue bonds did not comply with constitutional and statutory standards. The stadium project “fits squarely” within the range of allowable “revenue producing undertakings.” The bond obligations would be covered by license fees from the Braves and payments pursuant to the IGA, which have been held to constitute project revenue. The County’s promise to levy ad valorem taxes if necessary did not turn the revenue bonds into general obligation bonds; it put the County’s “full faith and credit” behind its contractual commitments.
In a unanimous opinion by Presiding Justice Hines, the Supreme Court of Georgia reversed a probate court’s decision denying a petition to probate a will. The probate court dismissed the petition reasoning that the will’s proponent failed to produce the subscribing witnesses for examination at the hearing or show that they were deceased or unavailable. The Supreme Court of Georgia pointed out that the law now permits self-proving wills, codicils, and affidavits, and that this will included a self-proving affidavit. Accordingly, the appearance of the subscribing witnesses was unnecessary, and the burden of proof shifted to the caveator making the objection.
In a unanimous opinion by Justice Blackwell, the Supreme Court of Georgia held that the doctrine of virtual adoption does not apply to a case in which a decedent has disposed of his or her entire estate by will. Mrs. Johnson dies and left a will in which she gave interests to Mr. Johnson, her husband, and contingent residual interests to Rogers, her grandniece who had lived with the Johnsons for 37 years. Rogers sought an intestate share of the estate claiming that she had been adopted. The probate court admitted Mrs. Johnson’s will to probate and granted the intestate share to Rogers on the ground that she had been virtually adopted. The Supreme Court of Georgia reversed.
The Supreme Court explained that the doctrine of virtual adoption can fill a gap where someone has agreed to adopt another, but does not complete the formal process. The doctrine is meant to “avoid an unfair result from the application of intestacy statutes.” (Quoting Sanders v. Riley, 296 Ga. 693,698, 770 S.E. 2d 570 (2015)). The Court noted that it had “previously held” that “where a will gives all of the real and personal property of the alleged adoptive parents to someone other than the alleged virtual adoptee, except for a certain bequest of personal property, there no longer remains in the estate any property subject to enforcement of the virtual adoption claim.” (Citing Banes v. Derricotte, 215 Ga. 892, 896, 114 S.E. 2d 12 (1960)).
The Court also held that the 2002 amendment to O.C.G.A. § 53-4-48 did not do away with the intestacy requirement. That amendment changed the law so that a subsequent adoption no longer revoked a will. Rather, the subsequently adopted child is entitled to an intestate share. The Court reasoned that the amendment covered lawful statutory adoptions, which have “almost no relationship” to a virtual adoption.
In a unanimous opinion by Presiding Justice Hines, the Supreme Court of Georgia reversed a trial court ruling that struck down Elbert County’s solid waste ordinance as unconstitutional. The Court remanded the case for the trial court to apply the balancing test of Pike v. Bruce Church, Inc., 307 U.S. 137, 142 (1970), under which a statute or ordinance that “regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, … will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”
In 2009, Sweet City applied for a special use permit that would allow it to establish a solid-waste facility in Elbert County. The County voted not to enter into a host agreement with Sweet City in 2012, and Sweet City filed suit seeking a declaration that the County’s solid waste ordinance was unconstitutional and an injunction permitting it to go forward with its plan. The trial court granted Sweet City’s motion for summary judgment and awarded the requested relief.
The Supreme Court reversed the trial court’s ruling. It held that the trail court erred in concluding that it would be futile for Sweet City to exhaust its remedies. Instead, the Court noted that its “long-standing procedure is to address … vested right claims only after the local zoning authority has refused to issue the necessary permits for the proposed project, or has imposed unconstitutional restrictions on an existing project.” Sweet City needed to get a final decision from Elbert County before filing suit.
In addition, the Supreme Court rejected Sweet City’s attack on the constitutionality of Elbert County’s ordinance. It pointed out that the lack of solid waste facilities in Elbert County did not make the ordinance facially discriminatory against Sweet City and similar uses. Instead, it was necessary to apply the balancing test of Pike.
In a unanimous opinion by Justice Hunstein, the Supreme Court of Georgia affirmed a trial court ruling ousting the new attorney for the City of Gordon. In its June 15 opinion in Lue v. Eady, the Court noted that the City’s Charter empowered the Mayor to participate in the city council’s discussions, but could vote only in the event of a tie and in the election of those officials elected by the council. In order to move forward, four affirmative votes are needed. The Charter also provides that the city council appoints the city attorney and that the attorney serves at council’s pleasure.
When a motion was made to terminate Boone’s services as city attorney, the vote was 3-2, with one abstention. Mayor Lue then voted in favor of the motion. She also voted in favor of the appointment of an interim attorney, after that vote came in at 3-2 in favor, with one abstention. Jones was appointed
Boone challenged the appointment of Jones through a quo warranto petition, contending that the Mayor was not entitled to vote to turn a 3-2 majority with an abstention into the required four votes. The Court affirmed the trial court’s ruling ousting Jones, rejecting the contention that an abstention was the equivalent of a no vote. Relying on its decision in Merry v. Williams, 281 Ga. 571, 642 S.E. 2d 46 (2007), the Court noted, “The requirement of a specific number of affirmative votes exhibits a legislative intent that abstentions not be counted with the majority of votes cast.…” Abstentions do not count, as either affirmative or negative votes. Because there was no tie vote, Mayor Lue was not entitled to vote.