Released Opinions
This morning, the Supreme Court released opinions in 23 cases, two of which are civil within the scope of our coverage. Brief summaries of the cases and the opinions released are below.
S11G1069. Crowe v. Elder
This case is a breach of contract action arising from an alleged agreement regarding distribution of Walter Elder’s estate. Walter Elder died without a will in 2004, leaving an estate of $3 million. His widow (“Elder”) petitioned for a year’s support of $3 million and Crowe (Elder’s daughter) filed no objection. Crowe alleged she did not object in exchange for Elder’s agreement to divide the estate equally with her and the decedent’s grandsons.
Crowe initiated an action in probate court in 2007, attempting to set aside the year’s support. The probate court dismissed the action because it lacked equity jurisdiction and Crowe appealed. The superior court and the Court of Appeals both found in favor of Elder, finding Crowe had not demonstrated fraud. Crowe then filed a new action in superior court, alleging breach of contract based on the same facts as the first action. The trial court granted Elder’s motion for summary judgment that res judicata barred Crowe’s claim and Crowe appealed.
The Court of Appeals (Mikell, Smith, Adams) unanimously affirmed the trial court’s grant of summary judgment to Elder. The court found all the elements of res judicata exist. While Crowe contended the subject matters were not identical, the court found the same set of facts applied in both cases and Crowe could have raised the breach of contract claim in the first action.
Crowe filed a petition for certiorari alleging that res judicata does not apply because the probate court had no jurisdiction to hear the breach of contract issue and Elder responded.
On October 3, 2011, the Supreme Court unanimously granted the petition for certiorari to review the following issue:
- Did the Court of Appeals err in holding that res judicata bars Appellant’s action for breach of contract?
The case was heard at oral argument on January 10, 2012.
On February 27, 2012, the Supreme Court unanimously affirmed the Court of Appeals. Writing for the Court, Justice Hines explained that all three elements of res judicata were met: identity of the parties, identity of the causes of action, and prior adjudication on the merits. Crowe chose the probate court as a forum when she could have brought her claims in superior court originally. The case was determined by the superior court on appeal on the merits and res judicata barred her subsequent action.
S11G1201. Georgia Department of Community Health et al. v. Georgia Society of Ambulatory Surgery Centers
This case involves the authority of the Department of Community Health (DCH) to oversee the operations of ambulatory surgery centers (ASCs) in the state. As part of the exemption that many ASCs receive from Georgia’s Certificate of Need (CON) requirements, DCH collects data from ASCs each year for health planning purposes through an annual survey. Based on changes in the law in 2008, ASCs that are are exempt from the CON program must now provide the same survey information to DCH as facilities operating under CONs. When DCH issued its 2009 annual survey in early 2010, the Georgia Association of Ambulatory Surgery Centers (GSASC) filed this case, seeking a declaratory judgment that the survey went beyond the requirements of Georgia law and injunctive relief preventing DCH from penalizing ASCs that did not respond to the disputed items. The trial court denied GSASC’s request for an interlocutory injunction and GSASC appealed.
The Court of Appeals reversed the trial court’s decision in a split 4-3 decision (Barnes, Smith, Mikell, Adams; Blackwell, Andrews, Dillard, dissenting). Writing for the majority, Judge Barnes found the trial court abused its discretion in denying the injunction because the disputed items in the survey were not authorized by Georgia law. The majority further found that the GSASC was not required to exhaust its administrative remedies because those remedies would be futile and the case challenges the agency’s power to act. Writing in dissent, Judge Blackwell argued the trial court and the Court of Appeals lack jurisdiction and both the appeal and the case below should be dismissed. Judge Blackwell would not have reached the merits and instead found that an effective and available administrative remedy exists, preventing a court from hearing the case.
The DCH petitioned for a writ of certiorari, arguing that DCH is entitled to request the information and that GSASC was required to exhaust its administrative remedies. GSASC responded, arguing the Court of Appeals was correct in its findings.
On September 12, 2011, the Supreme Court unanimously granted the petition to consider the following issue:
- Did the Court of Appeals err in its determination that the Georgia Society of Ambulatory Service Centers and its members were not required to exhaust administrative remedies?
The case was heard at oral argument on January 9, 2012.
On February 27, 2012, the Supreme Court unanimously reversed and remanded with direction. Writing for the Court, Presiding Justice Carley explained that the Court of Appeals majority incorrectly found the exhaustion of administrative remedies would be futile because it based that finding on the statement of the administrative decision-maker outside of the administrative process. The Court also explained the exception to the exhaustion doctrine based on jurisdiction did not apply because the plaintiff did not attack the agency’s claim of jurisdiction. The Court also cited favorably from Judge Blackwell’s dissent in the Court of Appeals as part of the determination that the GSASC was required to exhaust its administrative remedies before a court was able to hear the case.
Forthcoming Opinions
On Monday, February 27, 2012 the Supreme Court will release opinions in 23 cases, two of which are civil within the scope of our coverage. Brief summaries of the opinions to be released are below.
S11G1069. Crowe v. Elder
This case is a breach of contract action arising from an alleged agreement regarding distribution of Walter Elder’s estate. Walter Elder died without a will in 2004, leaving an estate of $3 million. His widow (“Elder”) petitioned for a year’s support of $3 million and Crowe (Elder’s daughter) filed no objection. Crowe alleged she did not object in exchange for Elder’s agreement to divide the estate equally with her and the decedent’s grandsons.
Crowe initiated an action in probate court in 2007, attempting to set aside the year’s support. The probate court dismissed the action because it lacked equity jurisdiction and Crowe appealed. The superior court and the Court of Appeals both found in favor of Elder, finding Crowe had not demonstrated fraud. Crowe then filed a new action in superior court, alleging breach of contract based on the same facts as the first action. The trial court granted Elder’s motion for summary judgment that res judicata barred Crowe’s claim and Crowe appealed.
The Court of Appeals (Mikell, Smith, Adams) unanimously affirmed the trial court’s grant of summary judgment to Elder. The court found all the elements of res judicata exist. While Crowe contended the subject matters were not identical, the court found the same set of facts applied in both cases and Crowe could have raised the breach of contract claim in the first action.
Crowe filed a petition for certiorari alleging that res judicata does not apply because the probate court had no jurisdiction to hear the breach of contract issue and Elder responded.
On October 3, 2011, the Supreme Court unanimously granted the petition for certiorari to review the following issue:
- Did the Court of Appeals err in holding that res judicata bars Appellant’s action for breach of contract?
The case was heard at oral argument on January 10, 2012.
S11G1201. Georgia Department of Community Health et al. v. Georgia Society of Ambulatory Surgery Centers
This case involves the authority of the Department of Community Health (DCH) to oversee the operations of ambulatory surgery centers (ASCs) in the state. As part of the exemption that many ASCs receive from Georgia’s Certificate of Need (CON) requirements, DCH collects data from ASCs each year for health planning purposes through an annual survey. Based on changes in the law in 2008, ASCs that are are exempt from the CON program must now provide the same survey information to DCH as facilities operating under CONs. When DCH issued its 2009 annual survey in early 2010, the Georgia Association of Ambulatory Surgery Centers (GSASC) filed this case, seeking a declaratory judgment that the survey went beyond the requirements of Georgia law and injunctive relief preventing DCH from penalizing ASCs that did not respond to the disputed items. The trial court denied GSASC’s request for an interlocutory injunction and GSASC appealed.
The Court of Appeals reversed the trial court’s decision in a split 4-3 decision (Barnes, Smith, Mikell, Adams; Blackwell, Andrews, Dillard, dissenting). Writing for the majority, Judge Barnes found the trial court abused its discretion in denying the injunction because the disputed items in the survey were not authorized by Georgia law. The majority further found that the GSASC was not required to exhaust its administrative remedies because those remedies would be futile and the case challenges the agency’s power to act. Writing in dissent, Judge Blackwell argued the trial court and the Court of Appeals lack jurisdiction and both the appeal and the case below should be dismissed. Judge Blackwell would not have reached the merits and instead found that an effective and available administrative remedy exists, preventing a court from hearing the case.
The DCH petitioned for a writ of certiorari, arguing that DCH is entitled to request the information and that GSASC was required to exhaust its administrative remedies. GSASC responded, arguing the Court of Appeals was correct in its findings.
On September 12, 2011, the Supreme Court unanimously granted the petition to consider the following issue:
- Did the Court of Appeals err in its determination that the Georgia Society of Ambulatory Service Centers and its members were not required to exhaust administrative remedies?
The case was heard at oral argument on January 9, 2012.
No Forthcoming Opinions
The Supreme Court of Georgia will not release any new opinions on Monday. The next oral argument date is set for March 5, 2012.
New Petition of Certiorari Granted in Civil Case
The Supreme Court of Georgia has granted one new petition for certiorari in a civil case in the last two weeks.
S11G1708. A FAST SIGN COMPANY, INC. d/b/a FASTSIGNS v. AMERICAN HOME SERVICES, INC.
This case involves faxed advertisements sent to businesses. In 2003, Fastsigns sued AHS, a construction company, for violations of the Telephone Consumer Protection Act (TCPA) related to the “junk faxes” that were being sent to its Fastsigns’ fax machine. The trial court certified a class consisting of every person to whom AHS sent the particular faxed advertisement received by Fastsigns. The Court of Appeals affirmed the class certification in 2007.
After remand, the case proceeded to the merits of the TCPA claim. After a trial, the court determined that AHS sent 306,000 unsolicited faxes in violation of the TCPA and further found it had done so in willful violation of the statute. The court then awarded $1,500 per fax, or $459 million, to Fastsigns and AHS appealed.
The Court of Appeals (McFadden, Phipps, Andrews) unanimously vacated the trial court’s ruling, finding that even assuming the evidence showed that AHS sent 306,000 faxes, the trial court improperly based its damage calculation on the numbers of faxes “sent” instead of the number “received.” The panel noted that while some courts do not require receipt to award damages, other courts including the Georgia Supreme Court do. Because the damage award was based on sending instead of receiving, the trial court’s judgment was vacated and remanded.
On February 6, 2012, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:
- Did the Court of Appeals err in finding that recovery under the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (b) (1) (C) et seq., depends upon proof that an unsolicited advertisement sent by facsimile was actually received by the plaintiffs?
The case has been placed on the May 2012 oral argument calendar.
No Forthcoming Opinions
The Supreme Court of Georgia will not be releasing any new opinions on Monday. The Court will also not hear any additional oral argument for the month of February.
Released Opinions
This morning the Supreme Court of Georgia released opinions in 23 cases, three of which are civil within the scope of our coverage. Brief summaries with links to the opinions are below.
S11A1960. Final Exit Network, Inc., et al. v. The State
This case began when a Forsyth County grand jury charged four individuals and the Final Exit Network of violating a number of state laws centering around violations of O.C.G.A. § 16-5-5, which prohibits offering to assist in a suicide. The defendants allegedly assisted in the suicide of John Celmer at his request by helping him breathe helium and then disposing of evidence.
Defendants sought to dismiss the indictment by alleging the statute is unconstitutional. The trial court denied the motion in an extensive order on April 19, 2011 and granted the defendants a certificate of immediate review on April 27, 2011.
Defendants applied for interlocutory review by the Supreme Court, alleging that the statute only prohibits advertising or assisting in a suicide, not assisting in a suicide itself. For that reason, defendants argue the statute is a “content-based restriction on the free speech rights of Georgia citizens,” in addition to being unconstitutionally vague.
On June 14, 2011, the Supreme Court granted unanimously granted the petition (Nahmias not participating) to consider the following issue:
- Did the trial court err in ruling that OCGA § 16-5-5 (b) is constitutional?
The Final Exit Network argues that the statute does not generally prohibit suicide, but rather focuses on speech – those who “publicly” advertise or hold themselves out as assisting with suicide. The State responds that the statute does not prohibit freedom of speech at all, but rather focuses on actors who assist in suicide.
The Court heard oral argument on the case on November 7, 2011.
On Monday, February 6, 2012, the Supreme Court unanimously reversed the trial court’s judgment, finding the assisted suicide law is unconstitutional (Nahmias, not participating). Writing for the Court, Justice Thompson found the law was unconstitutional as a violation of free speech. The law targets speech based on its particular content, and did not meet the standard of strict scrutiny because the state was unable to show that the provisions related to advertising were an actual problem in need of solving. The law did not ban all assisted suicides with no restriction on protected speech nor did it prohibit offers to assist in suicide accompanied by an act to accomplish that goal. Thus, the law violates the free speech clauses of the US and Georgia constitutions.
S11G1047. Cardinale v. City of Atlanta et al.
This case concerns the enforcement of Georgia’s Open Meetings Act. The Atlanta City Council held an elected officials’ retreat and advertised it as a public meeting. During the retreat, Council members voted on whether to amend their rules on public comment at committee meetings. The minutes do not reflect how the individuals voted, but merely state that the membership was “not in support of amending the existing law.”
Cardinale was unable to obtain the exact vote and filed a pro se action, claiming he had a right to detailed information on which members voted for and against the rule change. The trial court granted the City’s motion to dismiss, finding that the Open Meetings Act did not require a detailed vote.
The Court of Appeals (McFadden, Phipps, Andrews) unanimously affirmed the trial court ruling, finding that the Open Meetings Act did not require the disclosure of names in a non-roll-call vote, and that Cardinale’s complaint did not contain an allegation of an advertising violation.
Cardinale filed a pro se petition for certiorari and the City did not respond.
On July 11, 2011, the Supreme Court granted certiorari in a 5-2 vote to consider the following question:
- Whether the Court of Appeals erred in interpreting the Open Meetings Act to allow the minutes of a public meeting not to record “the name of the persons voting against a proposal or abstaining” where the vote was not taken by roll-call and was not unanimous. See OCGA § 50-14-1 (e) (2).
Cardinale filed his principal brief, alleging the Act requires minutes to include the names of individuals voting for or against proposals in non-roll-call votes that are not unanimous. The City responded, arguing the plain language of the statute supports the Court of Appeals’ determination.
According to Cardinale, the Court has also requested an amicus brief from Attorney General Sam Olens on the Open Meetings issue. The Attorney General filed the requested amicus briefon September 28, arguing that the numerical vote did not have to be recorded. The Georgia First Amendment Foundation filed an amicus brief in support of Cardinale.
The case was heard at oral argument on October 4, 2011.
On Monday, February 6, 2012, the Supreme Court affirmed in part and reversed in part in a 4-3 decision (Carley, Benham, Melton dissenting). Writing for the majority, Chief Justice Hunstein explained that the Open Meetings Act requires that minutes include the names of those voting for and against proposals on roll call and non-roll call votes. To find otherwise, according to the majority, would deny information to non-attending members of the public. Thus, the Court of Appeals erred when it dismissed this portion of Cardinale’s complaint. The majority also found that the criminal portion of the complaint was dismissed. Writing in dissent, Justice Melton would have found the clear language of the statute did not require names to be recorded on non-roll call votes.
S11A1435 Robbins et al., d/b/a Supermarket Speciality Products v. Supermarket Equipment Sales,LLC., et al.; S11A1583 Smith v. Supermarket Equipment Sales, LLC
This case involves the appeal of an injunction related to mechanical drawings in a case involving the metal coverings for commercial refrigerators. Supermarket Equipment Sales, LLC purchased some of the equipment from Supermarket Equipment Resale, Inc., which closed in 2009. Several former employees of SER created TCD Squared, which also dealt with coverings for refrigerators. SES sued TCD, alleging that the former employees took 1,500 mechanical drawings from SES and used those proprietary information and trade secrets and used them to compete against SES. The trial court issued a temporary injunction prohibiting TCD from using the 1,500 drawings, even though it concluded that the drawings were not trade secrets, and the defendants appealed to the Supreme Court.
TCD and its employees argue that SES lacked standing and the injunction was not appropriate because no trade secrets were taken from SES. SES responded by arguing that the company has standing and the injunction was appropriate to protect the proprietary information.
The Court heard oral argument on November 7, 2011.
On Monday, February 6, 2012, the Supreme Court unanimously affirmed in part and reversed in part. Writing for the Court, Justice Benham explained that SES had standing to pursue this case because of the unique facts involved, but that the trial court abused its discretion by granting equitable relief to SES beyond the scope of the Georgia Trade Secrets Act because that Act preempts other laws.
Next Week at the Court
On Monday, February 6, 2012, the Supreme Court will be returning for its two days of scheduled oral argument for the month. Brief summaries of the six cases within the scope of our coverage being argued are below, including the much-discussed alligator attack case.
Monday, February 6, 2012 10:00 am Sitting
S11G1728. Tampa Investment Group, Inc., et al. v. Branch Banking and Trust Company, Inc.; S11G1729. Legacy Communities Group, Inc., et al. v. Branch Banking and Trust Company, Inc.
These cases involve efforts by BB&T to collect on 16 promissory notes executed between 2005 and 2008 to two different entities for the development of residential subdivisions. BB&T originally foreclosed on nine of the notes and was the sole and winning bidder at the foreclosure auction. The bank then rescinded its foreclosure actions and filed suit asserting claims for the amount due under each of the notes. The trial court granted the borrowers’ and guarantors’ motion for partial summary judgment as to the notes that BB&T originally foreclosed upon (finding them unenforceable), and granted BB&T’s motion for partial summary judgment regarding the remaining notes (finding them enforceable in spite of Statute of Frauds claims).
The Court of Appeals (Ellington, Miller, Doyle) unanimously affirmed in part and reversed in part, finding that the bank abandoned foreclosure proceedings before any foreclosure sale was consummated, allowing BB&T to proceed with its recovery under the first groups of notes, reversing the trial court. The Court of Appeals also found that although the Statute of Frauds applied, partial performance saved the failure to satisfy the requirements of the Statute of Frauds, affirming the trial court’s decision on the remaining notes. The Court of Appeals thus found the bank’s claims regarding all the notes were not barred by any legal theory.
On November 7, 2011, the Supreme Court unanimously granted the petitions for certiorari to review the following issues reflecting the two divisions of the opinion:
- Whether the Court of Appeals erred in reversing the trial court’s grant of partial summary judgment by holding that BB&T failed to satisfy the Statute of Frauds so that no valid foreclosure sale occurred and the confirmation process under OCGA § 44-14-161 did not apply
- Whether the Court of Appeals erred by affirming the trial court’s grant of partial summary judgment.
S11G1263. The Landings Association, Inc. v. Williams et al.; S11G1277. The Landings Club, Inc. v. Williams et al.
This case began with an alleged alligator attack that resulted in the death of Gwyneth Williams. Williams’ estate and heirs sued the joint owners of the lagoon where the alligator allegedly killed Williams, the Landings Association and the Landings Club. The owners filed a motion for summary judgment, alleging they were entitled to judgment as a matter of law based on premises liability, nuisance, and the doctrine that a landowner is not responsible for harm caused by a free wild animal on the owner’s land (the doctrine of animals ferae naturae). After the trial court denied the motion for summary judgment in part, the owners appealed.
The Court of Appeals affirmed in part and reversed in part in a 5-2 decision (Ellington, Barnes, Miller, Phipps, McFadden in the majority; Andrews and Doyle concurring in part and dissenting in part). The majority found the trial court correctly determined that the owners had shown as a matter of law that they were entitled to judgment as a matter of law on the premises liability claims and that the doctrine of animals ferae naturae did not create an exception to premises liability for injuries from wild animals. But the majority reversed the trial court and found the owners were entitled to judgment as a matter of law on the nuisance claim. The dissent would have found that the owners were entitled to judgment as a matter of law on the premises liability claims, when combined with the animals ferae naturae doctrine.
The Association and the Club petitioned for certiorari and Williams estate responded separately to the Association and the Club.
On October 17, 2011, the Supreme Court granted the petitions for certiorari in a 4-3 vote (Hunstein, Carley, and Benham dissenting) to consider the following issue:
- Did the Court of Appeals err in its holding that the trial court properly denied in part the motions for summary judgment brought by The Landings Association, Inc. and The Landings Club, Inc.?
The cases will be heard by the Court on February 6, 2012.
S11G1681. Hoover v. Maxum Indemnity Company; S11G1683. Hoover v. Maxum Indemnity Company
This case began when Hoover, an employee of Emergency Water Extraction Services, LLC (EWES), was injured on a job site. In 2004, a ladder Hoover was descending on a job site collapsed, resulting in a catastrophic brain stem injury. The owner of EWES was made aware of the accident on the day it occurred, and Hoover’s father requested information about EWES’s insurance coverage. In 2006, Hoover filed a tort action against EWES alleging neglience (EWES was not subject to the Worker’s Compensation Act) and EWES forwarded the complaint to Maxum. Maxum denied coverage, stating that the complaint was the first notice it received of the occurrence, along with other policy defenses. Maxum did not provide a defense and a jury verdict of $16.5 million was returned in Hoover’s favor against EWES.
EWES then assigned its right of action against Maxum to Hoover and Hoover sued Maxum, claiming breach of the duties of defense and indemnification. Maxum moved for summary judgment on whether it had received timely notice and Hoover moved for summary judgment on Maxum’s duty to defend. The trial court granted both motions, finding that while Maxum breached its duty to defend EWES, it did not breach any duty to indemnify because sufficient notice was not given. Both parties appealed.
The Court of Appeals (Miller, Ellington, Doyle) unanimously affirmed in part and reversed in part, finding the trial court correctly found there was no duty to indemnify because of an unjustifiable and unreasonable delay in providing notice, but also determining that Maxum did not have a duty to defend EWES. Because of the lack of notice, Maxum was not obligated to provide “either a defense or coverage.”
Hoover petitioned for certiorari on both issues, and Maxum filed a joint response.
On October 17, 2011, the Supreme Court granted the petitions for certiorari in a 6-1 vote (Nahmias dissenting) to consider the following issues:
- Did the Court of Appeals properly analyze the claim that the respondent waived its notice defense?
- Was timely notice a prerequisite in this case to respondent having a duty to provide a defense in the underlying tort action?
The cases have been assigned to the February 2012 oral argument calendar.
Tuesday, February 7, 2012 10:00 am Sitting
S11G1145. Appleton v. Alcorn et al.
This case is a dispute between a decedent’s daughters and his second wife regarding proper ownership of the decedent’s 401(k) retirement plan and life insurance plan. Several months before his death, Alcorn entered into an Order of Separate Maintenance that incorporated a settlement agreement. The settlement agreement contained language waiving Appleton’s rights to Alcorn’s retirement accounts and life insurance proceeds. Upon Alcorn’s death, Alcorn’s 401(k) plan and life insurance plan paid the proceeds (according to ERISA) to Appleton. Alcorn’s daughters filed suit, alleging breach of contract. The trial court granted Appleton’s motion to dismiss, finding that ERISA controlled the distribution of funds, under the U.S. Supreme Court’s decision in Kennedy v. Plan Administrator, 129 S.Ct. 865 (2009).
The Court of Appeals (Smith, Mikell, Adams) unanimously reversed the trial court ruling, finding that Kennedy did not bar a subsequent breach of contract claim and existing Georgia precedent allowed a subsequent claim against funds distributed from an ERISA plan.
Appleton petitioned for certiorari, arguing the issue was one of first impression in Georgia, and the Alcorns responded, arguing the Supreme Court had addressed this issue previously.
On October 17, 2011, the Supreme Court unanimously granted the petition for certiorari to review the following issue:
- Did the Court of Appeals err in finding that a decedent’s children could maintain a state law action against the decedent’s surviving spouse to recover proceeds distributed to the spouse as the beneficiary of the decedent’s ERISA-governed benefits plans where the state law claims are based on a contention that the spouse waived her rights to such proceeds?
The case will be heard by the Court on February 7, 2012.
S11G1772. Jordan v. Moses
This case originated with the dissolution of a law partnership in Brunswick. Moses and Jordan practiced together for several years prior to forming a partnership at the start of 2003. At an August 16, 2006 meeting, Jordan informed Moses he was considering dissolving the partnership, and Moses offered to serve in an “of counsel” role from her home. On a Sunday about ten days later, Jordan left a letter on Moses’ office chair purporting to dissolve the partnership effective August 31. Jordan then left town. Moses sent an email the next day stating she did not agree to dissolve the partnership. Moses’ attorney discussed the issue with Jordan, and Moses believed the firm would continue in existence. In early October, however, Jordan informed the firm’s railroad clients that the firm was dissolved, and sent out a letter in December announcing formation of The Jordan Firm.
At the beginning of 2007, Jordan filed suit asking for a declaration that the law partnership was dissolved on September 26, 2006 and that Moses was owed no further funds. Moses counterclaimed for breach of the partnership agreement, wrongful dissolution, and breach of fiduciary duty, among other claims. Jordan moved for summary judgment on the counterclaim for wrongful dissolution and the trial court granted it, in addition to granting Jordan a protective order related to discovery and ordering Moses to turn over a hard drive in her possession.
The Court of Appeals (Smith, Dillard, McFadden) unanimously reversed the trial court decision, finding that Moses presented at least one genuine issue of fact regarding her wrongful dissolution claim, preventing the trial court from granting summary judgment. In addition, the panel found there was a dispute of facts regarding the date of dissolution of the partnership and that the trial court should not have entered a blank protective order based on the number of requests.
On November 7, 2011, the Supreme Court granted certiorari in a 4-3 vote (Hunstein, Thompson, and Melton, dissenting) to consider the following issue:
- Whether the Court of Appeals applied the proper legal analysis in reversing the grant of summary judgment on the wrongful dissolution claim?
The case will be heard at oral argument on February 7, 2012.
S12A0304 Unified Government of Athens-Clarke County v. Stiles Apartments, Inc.
This case began with a 1954 agreement between Stiles Apartments and Athens regarding parking spaces along Lumpkin Street. Stiles paid the construction costs to relocate the sidewalk to private property and create a parking lot with 22 spaces. The lot was to be maintained by Athens as if it was public property. In 2003, Stiles attempted to remove several cars that remained parked in the lot for days but was told by the county attorney that the parking area was public and Stiles could not control who parked there.
Stiles sued, claiming it had ownership of the parking lot and the trial court issued an injunction prohibiting Athens from asserting any control over the parking area. But the trial court also did not prohibit the government from intervening if Stiles resumed towing vehicles. Athens-Clarke County appealed, which is being heard as an appeal of the granting of injunctive relief.
The case will be heard oral argument on February 7, 2012.
Justice Carley Gives Formal Notice of Retirement
Georgia Supreme Court Justice George Carley sent his formal notice of retirement to Governor Nathan Deal on Monday, January 30. It had been previously announced that Justice Carley would retire this year.
In his letter, Justice Carley said he would resign on July 17, the day after the Court’s January Term cases are due to be decided. Governor Deal will appoint Justice Carley’s successor.
New Grant of Petition for Certiorari in Civil Case
The Supreme Court has granted one new petition for certiorari in a civil case in the last two weeks. A brief summary of the issues is below.
S12G0133. GATES et al. v. GLASS et al.
This case began when John Glass, a Troup County inmate, was killed while on a prison work detail. Glass was operating a tractor and Donrell Gates was the corrections officer supervising the detail. When one of the tractors became stuck, Gates allegedly failed to call the prison work camp. While Glass was assisting in pulling that tractor out of a ditch, he was struck by a rock in the throat and died. Glass’s family sued, claiming his death resulted from negligent supervision of the work detail. The trial court granted the defendants’ motion for summary judgment on the grounds that the claims were barred by sovereign immunity and official immunity and plaintiffs appealed.
The Court of Appeals (Barnes, Adams, Blackwell) unanimously reversed in part and vacated in part, finding that the trial court used the wrong definition of “motor vehicle” and that there was a dispute over the material fact of whether Gates failed to carry out a ministerial act. The Court of Appeals explained that the trial court’s grant of summary judgment on sovereign immunity had to be vacated because the tractor and bush hog qualified as “any motor vehicle” under the statute. Under precedent, because the vehicle was capable of being driven on the public roads and was covered by the liability insurance policy of the county, bringing it within the definition of “any motor vehicle” and potentially waiving sovereign immunity. The passage of a 2002 revision to the sovereign immunity law did not change the definition of “any motor vehicle,” according to the panel, but the waiver of sovereign immunity had not been fully briefed by the parties. The Court of Appeals also found that there was a genuine issue of material fact regarding whether there was a departmental policy to contact the work camp when a tractor became stuck, reversing the grant of summary judgment on that issue.
On January 23, 2012, the Supreme Court granted the petition for certiorari in a 4-3 vote (Thompson, Hines, Nahmias dissenting) to consider the following question:
- Did the Court of Appeals err in holding that the definition of “any motor vehicle” in OCGA § 33-24-51(a) continues to be the broader definition of the term provided for in prior case law, notwithstanding the 2002 passage of House Bill 1128?
The case has been assigned to the April 2012 oral argument calendar.
No Forthcoming Opinions
The Supreme Court will not be releasing any new opinions on Monday, January 30, 3012. The Court returns for oral argument on February 6.
