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No Forthcoming Opinions

October 10, 2014
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The Supreme Court of Georgia will not be releasing any new opinions next week. The next scheduled date for oral argument is November 3, 2014.

Released Opinions

October 6, 2014
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This morning, in addition to hearing argument, the Supreme Court of Georgia released opinions in 18 cases, six of which are within the scope of our coverage. Summaries of the cases and opinions are below.

S13G1843 Ambling Management Co., LLC et al. v. MillerS13G1852 City Views at Rosa Burney Park GP, LLC et al. v. Miller

This case began when Tramaine Miller arrived at City Views apartments to assist his disabled aunt with her medications. After parking in a handicapped space without the proper permit, Miller was approached by an off-duty police officer working security at the complex. When Miller failed to heed the officers’ instructions and placed what the officer believed was drugs in his mouth, the officer broke the window of the vehicle. The officer testified that he saw Miller reach for what the officer believed was a weapon and so he fired, hitting Miller in the face. Miller sued the apartment complex, the management company, the off-duty officer, and the apartment manager. The trial court granted summary judgment to the apartment complex on the issues of vicarious liability; negligent hiring, retention, entrustment, and supervision; premises liability; and punitive damages. Miller appealed.

A seven-judge panel of the Court of Appeals affirmed in part and reversed in part in a 5-2 vote (Doyle, Phipps, Barnes, Ellington, McFadden; Boggs and Branch, concurring in part and dissenting in part). Writing for the Court of Appeals majority, Judge Doyle explained that the trial court first improperly granted summary judgment on the vicarious liability issue. Liability for the torts of an off-duty officer does not automatically attach to the private company, because the officer may be exercising functions for the public at the time. Because there was some evidence supporting a finding that the officer was performing a security function instead of a police function prior to the shooting, the trial court should not have granted summary judgment. Because the vicarious liability portion of the case remains active, the majority found the trial court’s finding on punitive damages must be reversed as well. But the majority also found the trial court correctly determined that summary judgment was proper regarding Miller’s premises liability claim. Judges Boggs and Branch would have affirmed the trial court decision on the vicarious liability and punitive damages issues because the undisputed testimony showed the officer was trying to arrest Miller when he was shot.

On January 27, 2014, the Supreme Court of Georgia granted the petitions for certiorari in a 5-2 vote (Benham and Hunstein dissenting) to consider the following question:

  1. Did the Court of Appeals’s majority opinion err in focusing on the evidence of whether Officer Fisher was performing police duties not directed by his private employer at the time he approached and engaged Miller, instead of at the time the alleged causes of action arose?

The cases was heard on April 18, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed the Court of Appeals’ decision. Writing for the Court, Justice Benham explained that the proper focus of the analysis was the capacity in which the officer was acting at the time the tort arose. But the Court of Appeals determined summary judgment was not appropriate because a jury could conclude that, when Fisher engaged Miller, he was acting as an officer to enforce regulation of handicap spaces. Instead, the Court of Appeals should have focused on Fisher’s actions at the time the cause of action arose, i.e., stopping the vehicle, breaking the window, drawing his weapon, and firing. While the initial reasons for approaching Miller are relevant, the factual analysis must go beyond those initial events. In spite of these shortcomings, the ultimate conclusion of the Court of Appeals was correct and summary judgment is inappropriate, because there is a dispute of fact regarding Fisher’s testimony and whether City Views directed arrests.

S14G0431 Board of Regents of the University System of Georgia v. Myers

This case began when Kimberly Myers stepped on the edge of an unrepaired pothole at the Dalton State College campus. She was injured and had to receive emergency medical attention, including additional doctor visits and physical therapy. Three and a half months after the injury, Myers sent an ante litem notice under the Georgia Tort Claims Act (GTCA), asserting a negligence claim against the Board of Regents based on the conditions in the parking lot. The notice did not state the total amount of her damages, because Myers said she was still incurring medical bills. The Board’s response requested verification of losses, and Myers’ attorney did not respond for nearly a year. After another request from the Board for a settlement demand in August 2011, Myers’ attorney responded in April 2012 seeking $110,000. In May 2012, the Board offered the actual amount of Myers’ medical expenses, $10,128.24, to settle and Myers sued. The Board moved to dismiss the case because of the lack of an effective ante litem notice, depriving the court of jurisdiction. The trial court granted the motion and Myers appealed.

The Court of Appeals reversed the trial court decision in a 5-2 vote (Doyle, Phipps, Barnes, Ellington, concurring; McFadden, concurring specially; Boggs and Branch, dissenting). The majority explained that the key issue was whether the language in the ante litem notice was sufficient to state the amount of the loss. Because the Torts Claims Act only requires a statement of loss to the extent of the claimant’s knowledge and belief, Myers’ notice was sufficient.

On March 3, 2014, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the Court of Appeals majority correctly interpret the ante litem notice requirements of OCGA § 50-21-26 (a) (5) (E)?

The case was heard on May 5, 2014.

On October 6, 2014, the Supreme Court reversed the Court of Appeals in a 6-1 decision (Benham, dissenting). Writing for the Court, Justice Hunstein explained that strict compliance with the terms of the GTCA is required to obtain the limited waiver of sovereign immunity it offers. While Myers did not yet know what her total amount of loss would be at the time of her ante litem notice, the statute requires a statement of the amount of the loss claimed “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” The statute does not require a notice of the entire loss or total loss. Instead, it requires notice of the amount of the loss claimed at the time. Because Myers failed to give proper notice, the state did not waive sovereign immunity and the trial court lacked jurisdiction.

S14A0728 Jansen-Nichols v. Kinder Morgan Southeast Terminals, LLC et al.

This case involves helicopter flights over the home of Ms. Jansen-Nichols. Ms. Jansen-Nichols owns a house across the street from two of Colonial Pipeline’s pipes that carry gasoline and diesel fuel. Colonial owns easements that allow it to construct, operate, and repair the pipelines. On two occasions in May and June 2013, Colonial’s leak detection systems triggered and Colonial dispatched an inspector in a helicopter to visually inspect the pipeline. Ms. Jansen-Nichols claimed that the helicopters hovered low over her house, causing alarm to those inside. The inspector and pilots testified that helicopters flew at an altitude of 150 feet, staying along the edge of the easement for the length of the line. The trial court denied Ms. Jansen-Nichols’ motion for a preliminary injunction and she appealed.

The case was heard on April 7, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed the trial court. Writing for the Court, Justice Blackwell explained that the trial court did not abuse its discretion in finding that Jansen-Nichols did not show any of the four factors required for an interlocutory injunction. In addition, the denial of an interlocutory injunction is not an endorsement of low overflights of her home, because a wrongful act is a tort regardless of whether a court enjoined it.

S14A0779 Heiskell, Comr., et al. v. Roberts

This case involves the salary of a former judge on the State Court of Walker County. When Bruce Roberts was appointed by the Governor to the State Court, he met with the sole commissioner of Walker County, Bebe Heiskell, to discuss his salary. Commissioner Heiskell claims they agreed to $100,000 annually, while Roberts claims he expected to earn $172,102.80, the salary of the former judge, because he was filling an unexpired term. After Roberts lost the election in 2012, he sued the county for the difference in what it paid the former judge and what he was paid. The trial court granted mandamus against the county in Roberts’ favor and awarded him $78,878.55 in salary plus his legal fees. The county appealed.

The case was heard on May 5, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed in part and reversed in part. Writing for the Court, Justice Nahmias explained that the Georgia Constitution creates an entirely new and shortened initial term of office for an appointed judge. Appointees to judgeships (other than magistrate court judgeships) do not serve out the unexpired term of their predecessors and, as a result, there was no decrease in Roberts’ salary during his term of office. The trial court erred in awarding Roberts the difference in his salary and the salary of the former judge. In addition, the trial court properly dismissed counterclaims based on Roberts’ conduct, but erred in dismissing the county’s counterclaims to recover salary overpayments, because receiving an incorrectly-calculated paycheck is not a judicial function. Based on the Court’s determinations on the substantive claims, the award of attorney’s fees must be modified, but Roberts is entitled to some fees for defense of the counterclaims involving his conduct as a judge.

S14A0931 Trop, Inc., d/b/a Pink Pony et al. v. City of Brookhaven et al.

This case involves the constitutionality of a Brookhaven ordinance prohibiting nude dancing combined with the sale of alcohol. The Pink Pony is located in the new City of Brookhaven. In January 2013, the city passed an ordinance banning the consumption of alcohol in establishments where nude dancing takes place. The Pink Pony sued, claiming its prior settlement regarding a similar ordinance from DeKalb County exempted it from the City’s ordinance and that the ordinance was unconstitutional. The trial court granted the City’s motion to dismiss, finding the ordinance constitutional and that the Pink Pony did not have standing to challenge other provisions of the Brookhaven Code. The Pink Pony appealed.

The case was heard on June 2, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed the trial court decision. Writing for the Court, Justice Melton explained that the main question raised by the Pink Pony was that the City’s sexually-oriented business code violated its free speech rights. But the trial court ruled correctly that the ordinance was constitutional because it meets the content-neutral test. The prior settlement agreement does not change that result, because the prior agreement with the county cannot be used to bind the later-incorporated city.

S14A0932 Unified Government of Athens-Clarke Co. v. Stiles Apartments, Inc.

This case is making its second appearance before the Supreme Court, involving a parking lot in Athens.

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 interlocutory injunction prohibiting Athens from asserting any control over the parking area.

Athens-Clarke County appealed in 2012 and the Supreme Court affirmed, finding that there was evidence to authorize the grant of interlocutory injunctive relief, but leaving the question of whether the 1954 agreement intended to preserve public property rights in the land. After a trial, the lower court entered final judgment, finding that the agreement did not make the parking area available to the public. Athens-Clarke County appealed.

The case was heard on June 2, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed the trial court decision. Writing for the Court, Justice Benham explained that the contract shows the parties intended to relieve traffic congestion on South Lumpkin Street and creating a parking area was the means to achieve that goal. The different treatment between the parking area and the sidewalk shows that the parties never intended for the parking area to be kept open for the public. The remaining claims asserted by Athens-Clarke County did not provide a basis for changing the trial court’s ruling.

Forthcoming Opinions

October 3, 2014
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In addition to hearing argument on Monday, the Supreme Court of Georgia will be releasing opinions in 18 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.

S13G1843 Ambling Management Co., LLC et al. v. MillerS13G1852 City Views at Rosa Burney Park GP, LLC et al. v. Miller

This case began when Tramaine Miller arrived at City Views apartments to assist his disabled aunt with her medications. After parking in a handicapped space without the proper permit, Miller was approached by an off-duty police officer working security at the complex. When Miller failed to heed the officers’ instructions and placed what the officer believed was drugs in his mouth, the officer broke the window of the vehicle. The officer testified that he saw Miller reach for what the officer believed was a weapon and so he fired, hitting Miller in the face. Miller sued the apartment complex, the management company, the off-duty officer, and the apartment manager. The trial court granted summary judgment to the apartment complex on the issues of vicarious liability; negligent hiring, retention, entrustment, and supervision; premises liability; and punitive damages. Miller appealed.

A seven-judge panel of the Court of Appeals affirmed in part and reversed in part in a 5-2 vote(Doyle, Phipps, Barnes, Ellington, McFadden; Boggs and Branch, concurring in part and dissenting in part). Writing for the Court of Appeals majority, Judge Doyle explained that the trial court first improperly granted summary judgment on the vicarious liability issue. Liability for the torts of an off-duty officer does not automatically attach to the private company, because the officer may be exercising functions for the public at the time. Because there was some evidence supporting a finding that the officer was performing a security function instead of a police function prior to the shooting, the trial court should not have granted summary judgment. Because the vicarious liability portion of the case remains active, the majority found the trial court’s finding on punitive damages must be reversed as well. But the majority also found the trial court correctly determined that summary judgment was proper regarding Miller’s premises liability claim. Judges Boggs and Branch would have affirmed the trial court decision on the vicarious liability and punitive damages issues because the undisputed testimony showed the officer was trying to arrest Miller when he was shot.

On January 27, 2014, the Supreme Court of Georgia granted the petitions for certiorari in a 5-2 vote (Benham and Hunstein dissenting) to consider the following question:

  1. Did the Court of Appeals’s majority opinion err in focusing on the evidence of whether Officer Fisher was performing police duties not directed by his private employer at the time he approached and engaged Miller, instead of at the time the alleged causes of action arose?

The cases was heard on April 18, 2014.

S14G0431 Board of Regents of the University System of Georgia v. Myers

This case began when Kimberly Myers stepped on the edge of an unrepaired pothole at the Dalton State College campus. She was injured and had to receive emergency medical attention, including additional doctor visits and physical therapy. Three and a half months after the injury, Myers sent an ante litem notice under the Georgia Tort Claims Act, asserting a negligence claim against the Board of Regents based on the conditions in the parking lot. The notice did not state the total amount of her damages, because Myers said she was still incurring medical bills. The Board’s response requested verification of losses, and Myers’ attorney did not respond for nearly a year. After another request from the Board for a settlement demand in August 2011, Myers’ attorney responded in April 2012 seeking $110,000. In May 2012, the Board offered the actual amount of Myers’ medical expenses, $10,128.24, to settle and Myers sued. The Board moved to dismiss the case because of the lack of an effective ante litem notice, depriving the court of jurisdiction. The trial court granted the motion and Myers appealed.

The Court of Appeals reversed the trial court decision in a 5-2 vote (Doyle, Phipps, Barnes, Ellington, concurring; McFadden, concurring specially; Boggs and Branch, dissenting). The majority explained that the key issue was whether the language in the ante litem notice was sufficient to state the amount of the loss. Because the Torts Claims Act only requires a statement of loss to the extent of the claimant’s knowledge and belief, Myers’ notice was sufficient.

On March 3, 2014, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the Court of Appeals majority correctly interpret the ante litem notice requirements of OCGA § 50-21-26 (a) (5) (E)?

The case was heard on May 5, 2014.

S14A0728 Jansen-Nichols v. Kinder Morgan Southeast Terminals, LLC et al.

This case involves helicopter flights over the home of Ms. Jansen-Nichols. Ms. Jansen-Nichols owns a house across the street from two of Colonial Pipeline’s pipes that carry gasoline and diesel fuel. Colonial owns easements that allow it to construct, operate, and repair the pipelines. On two occasions in May and June 2013, Colonial’s leak detection systems triggered and Colonial dispatched an inspector in a helicopter to visually inspect the pipeline. Ms. Jansen-Nichols claimed that the helicopters hovered low over her house, causing alarm to those inside. The inspector and pilots testified that helicopters flew at an altitude of 150 feet, staying along the edge of the easement for the length of the line. The trial court denied Ms. Jansen-Nichols’ motion for a preliminary injunction and she appealed.

The case was heard on April 7, 2014.

S14A0779 Heiskell, Comr., et al. v. Roberts

This case involves the salary of a former judge on the State Court of Walker County. When Bruce Roberts was appointed by the Governor to the State Court, he met with the sole commissioner of Walker County, Bebe Heiskell, to discuss his salary. Commissioner Heiskell claims they agreed to $100,000 annually, while Roberts claims he expected to earn $172,102.80, the salary of the former judge. After Roberts lost the election in 2012, he sued the county for the difference in what it paid the former judge and what he was paid. The trial court granted mandamus against the county in Roberts’ favor and awarded him $78,878.55 in salary plus his legal fees. The county appealed.

The case was heard on May 5, 2014.

S14A0931 Trop, Inc., d/b/a Pink Pony et al. v. City of Brookhaven et al.

This case involves the constitutionality of a Brookhaven ordinance prohibiting nude dancing combined with the sale of alcohol. The Pink Pony is located in the new City of Brookhaven. In January 2013, the city passed an ordinance banning the consumption of alcohol in establishments where nude dancing takes place. The Pink Pony sued, claiming its prior settlement regarding a similar ordinance from DeKalb County exempted it from the City’s ordinance and that the ordinance was unconstitutional. The trial court granted the City’s motion to dismiss, finding the ordinance constitutional and that the Pink Pony did not have standing to challenge other provisions of the Brookhaven Code. The Pink Pony appealed.

The case was heard on June 2, 2014.

S14A0932 Unified Government of Athens-Clarke Co. v. Stiles Apartments, Inc.

This case is making its second appearance before the Supreme Court, involving a parking lot in Athens.

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 interlocutory injunction prohibiting Athens from asserting any control over the parking area.

Athens-Clarke County appealed in 2012 and the Supreme Court affirmed, finding that there was evidence to authorize the grant of interlocutory injunctive relief, but leaving the question of whether the 1954 agreement intended to preserve public property rights in the land. After a trial, the lower court entered final judgment, finding that the agreement did not make the parking area available to the public. Athens-Clarke County appealed.

The case was heard on June 2, 2014.

Next Week at the Court

October 3, 2014

On Monday and Tuesday, the Supreme Court of Georgia will hear argument in 12 cases, four of which are within the scope of our coverage. Summaries of the cases being argued are below.

Monday, October 6, 2014 10:00 am Sitting

S14A1507 Greene County Development Authority et al. v. State of Georgia et al.

This is a case about the validation of revenue bonds for a charter school located in Greene County. In 2006, the Greene County Board of Education approved the petition of Lake Oconee Academy to function as a local charter school–a nonprofit corporation operating a public school under an agreement with the school board. In 2009, the Greene County Development Authority issued $17 million in bonds to fund construction of the facilities used by Lake Oconee Academy, with the support of the county and the Board of Education. In 2014, the charter school was ready to expand and sought an additional $14 million in bonds. Unlike the 2009 proceeding, the Board of Education was not a party to the proceeding, and a group of citizens objected. At the bond validation hearing, the superior court denied the bond and Greene County, the development authority, and Lake Oconee Academy appealed.

The case will be heard on October 6, 2014.

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 will be heard on October 6, 2014.

Tuesday, October 7, 2014 10:00 am Sitting

S14A1680 Crane Co., d/b/a Crane Composites v. Wayne Farms, LLC et al.

This case involves the retroactive application of Georgia’s offer of settlement statute. A poultry processing plant was damaged by a fire in 2003. In 2006, the poultry company and its insurers sued Crane, the manufacturer of the wall coverings, alleging that Crane’s negligence caused the fire to spread. Prior to trial, the plaintiffs offered to settle for $50 million and Crane later counteroffered of $500,000. Crane won at trial and moved for its fees and expenses from the time of the rejection of its settlement offer–an amount totaling over $2.8 million. The trial judge denied the motion and Crane appealed.

The Court of Appeals divided over the proper interpretation of the offer of settlement statute (O.C.G.A.  § 9-11-68), with six judges finding the rights under the statute accrued at the time of injury (2003) and six judges finding right accrued at commencement of the action (2006). That issue decides the case, because the offer of settlement statute became effective in 2005. As a result of the equal division, the case was transferred to the Supreme Court of Georgia.

The case will be heard on October 7, 2014.

Tuesday, October 7, 2014 2:00 pm Sitting

S14A1652 Chan v. Ellis

This case began with an inspirational poem written about living life–specifically, what people do with the “dash” between the year they are born and the year they die on their tombstone. Linda Ellis wrote the poem in 1996, and it is available on her website. When someone reproduces her poem on their website, Ellis routinely sends a demand letter, threatening the maximum statutory damages for copyright infringement, but offering to settle for $7,500. Chan operates a website that seeks to report on copyright infringement demand letters and, in 2012, began posting about Ellis’ practice of sending demand letters. Chan’s posts escalated (even he now says some of them were “stupid” and “unprofessional”) and eventually Ellis filed for a restraining order against Chan in Muscogee County.

The trial court granted the request for a restraining order in a written decision. In the decision, the trial court required Chan to delete all posts on his site “relating to Ms. Ellis.” The court did not limit the requirement to posts made by Chan or those that might be threatening. Instead, Chan was required to delete all posts, some of which he did not write, but that were written by commenters. Chan appealed.

The Court of Appeals, after receiving the briefs, transferred the case to the Supreme Court because of its “significant and novel constitutional issues addressing the interplay of the First Amendment and the wide dissemination of information made possible by the internet.” The Court of Appeals also noted the issues were of first impression in Georgia.

The case will be heard on October 7, 2014.

UPDATE: The case has prompted widespread interest, including by noted First Amendment scholar Gene Volokh, who is representing Professor Aaron Caplan as an amicus in the case.

No Forthcoming Opinions

September 26, 2014
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The Supreme Court of Georgia will not be releasing any new opinions on Monday. The next scheduled date for oral argument is Monday, October 6, 2014.

This Week at the Court

September 24, 2014

On Monday, in addition to releasing opinions, the Supreme Court of Georgia heard argument in two cases within the scope of coverage (one of the cases involved a number of cross-appeals). Summaries of the cases argued are below. The Court’s next date for oral argument is October 6, 2014.

S14A1033 Sentinel Offender Services, LLC v. Glover

This case relates to the operation of private probation companies in Georgia. Nearly 80 courts in Georgia contract with Sentinel and other companies to supervise defendants on probation for misdemeanors. The private probation services charge monthly probation supervision fees, which individuals on probation are ordered to pay. This case began when a number of plaintiffs sued to recover the fees they paid, alleging that the private companies did not have contracts with the courts, making the payments illegal, and exceeded their authority by requiring probationers to wear electronic monitoring devices, among other claims. The plaintiffs also sought class action status.

The trial court found that private probation did not violate the constitution, but it granted partial summary judgment to the plaintiffs, enjoining Sentinel from requiring electronic monitoring or taking any action regarding a probationer after the date their original sentence expired. The judge also found that, because of a mutual mistake in securing approval of a contract, the plaintiffs could only recover fees paid after the expiration of their original sentence. Both sides appealed.

The case was heard on September 22, 2014.

S14A1049 Newton County et al. v. East Georgia Land and Development Co., L.L.C.

This case is the third appearance of a challenge to a zoning ordinance in Newton County governing construction of a landfill. In 1997, a developer attempted to construct a landfill in the County and the county refused, citing a 1985 ordinance. After litigation two Supreme Court rulings on the status of the lost original zoning ordinance, the case proceeded.

After the second appeal, the trial court granted the request for a writ of mandamus in November 2013, requiring the county to issue the letter allowing the construction of the landfill because the maps referred to in the 1985 ordinance were not present when it was enacted, making the ordinance void. The county appealed.

The case was heard on September 22, 2014.

Released Opinions

September 22, 2014
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The Supreme Court of Georgia released opinions in 32 cases this morning, six of which are within the scope of our coverage. We apologize for the lack of updates last week, as travel interfered with our regular posts.

The Court will also be hearing oral argument this morning and we will update later today with those cases.

Summaries of the cases decided with links to the opinions are below.

S13G1711 Lafarge Building Materials, Inc. v. Thompson

This case involves a dispute over a personal guaranty on a debt. In 2007, the company Thompson owned applied for a line of credit from LaFarge to purchase building supplies. Thompson filled out the application paperwork for his company to obtain credit, including signing a Continuing Guaranty section titled “Signature of Individual Guarantor.” Thompson’s company failed to pay more than $53,000 and LaFarge sued. The trial court granted summary judgment to LaFarge finding, among other things, that Thompson’s signature constituted a personal guaranty. The trial court then entered a judgment of $105,147 and Thompson appealed.

The Court of Appeals reversed the trial court in a 5-2 decision (Doyle, Phipps, Ellington, McFadden concurring; Barnes concurring in judgment only; Boggs and Branch dissenting). Writing for the majority, Judge Doyle explained that the Continuing Guaranty section did not sufficiently incorporate the rest of the application because it did not define who the Applicant was. The majority said this outcome was dictated by its prior decision in another case, LaFarge v. Pratt. Because there was no name of the principal debtor, the Statute of Frauds was not satisfied. In dissent, Judge Boggs would have found the guaranty satisfied the Statute of Frauds because there was only an ambiguity in the name of the Applicant, which could be solved through parol evidence.

On January 6, 2014, the Supreme Court of Georgia unanimously granted the petition for certiorari to review the following question:

  1. Did the Court of Appeals err in holding that the guaranty agreement at issue here did not identify the principal debtor with sufficient specificity to satisfy the Statute of Frauds? Compare Capital Color Printing, Inc. v. Ahern, 291 Ga. App. 101 (661 SE2d 578) (1) (2008), with LaFarge Building Materials, Inc. v. Pratt, 307 Ga. App. 767 (706 SE2d 131) (1) (2011).

The case was heard on April 21, 2014.

On September 22, 2014, the Supreme Court unanimously reversed the Court of Appeals decision. Writing for the Court, Justice Nahmias explained that the debtor was identified sufficiently to satisfy the Statute of Frauds. The term used to define the debtor in the agreement should carry its usual meaning and as a result, the “Applicant” was sufficiently identified. The Court reiterated that the better practice is to include the name of the principal debtor in the guaranty.

S13G1812 Metropolitan Atlanta Rapid Transit Authority v. Reid

The case began when Reid was injured while an employee of MARTA in October 1999. Reid timely filed for worker’s compensation benefits and MARTA made 32 payments to him based on his temporary total disability before he was able to return to work in 2002. But 12 of those 32 payments were untimely or late based on the worker’s compensation statute. Reid did not raise any issues at the time. In 2010, Reid’s attorney requested MARTA pay the statutory penalty of 15% for each of the 12 late payments. MARTA refused, saying the demand was barred by the statute of limitations. Reid then filed a hearing request with the State Board, which denied the request. The Appellate Division of the State Board affirmed the denial, as did the Fulton County Superior Court. Reid filed an application for discretionary appeal, which the Court of Appeals granted.

The Court of Appeals (Branch and Ellington; Phipps concurring in judgment only) unanimously reversed the superior court decision, finding that the request was not a request for additional benefits resulting from a “change in condition.” That kind of request would be barred by the two-year statute of limitations contained in the worker’s compensation statute. Reid’s request was not a change in condition because it was not a change in status. In addition, the request is based on the initial claim for benefits, not a modification of a prior decision. As a result, the only statute of limitation which is relevant is the general statute on filing an initial claim, which was met because his claim was timely filed originally.

On January 6, 2014, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the Court of Appeals err in holding that the proper statute of limitations for a claim of statutory penalties for late benefits payments in workers’ compensation cases under OCGA § 34-9-221 is the general statute of limitations, OCGA § 34-9-82, rather than OCGA § 34-9-104 (b), the change in condition statute of limitations?

The Court heard oral argument on the case on April 7, 2014.

On September 22, 2014, the Supreme Court unanimously reversed the Court of Appeals. Writing for the Court, Chief Justice Thompson explained that the Code provides for two limitation periods: one for “all issues” claims and the other for a “change in condition” claim. While the Court of Appeals correctly found the employee did not undergo a change in capacity or physical condition, it did not consider whether he underwent a change in “status.” The employee’s status (his legal condition in connection with his employer) was established when benefits began and was last established when the last payment was made. Because the demand came more than two years after the additional income benefits were paid, his claim was barred by the two-year statute of limitations.

S14G0360 State of Georgia Dept. of Corrections v. Developers Surety and Indemnity Co.

This case began with a contract to re-roof buildings at Valdosta State Prison. In 2008, the Department of Corrections awarded the re-roofing project to Walker Roofing. Walker Roofing secured the required bonds from Developers Surety and began work near the end of 2008. The contract required Walker to complete the work within 150 calendar days, but the work was not completed by September 2010. The contract also stated that Walker was to have access to work areas between 7:30 am and 5:00 pm each weekday, but the Department imposed delays each day and required workers to be offside by 4:30 pm, requiring workers to stop work at 3:30 pm. When the Department issued its notice of default in 2010, it triggered the performance bond provisions, but Developers Surety failed to notify the Department which entity would complete the project until three months later. Developers Surety sued the Department in 2011 for breach of contract and a declaration that it had no obligation under the payment and performance bond provisions. The trial court found the claims were not barred by sovereign immunity and granted Developer Surety’s motion for summary judgment, awarding it $577,118.60.

The Court of Appeals (Ray, Barnes, Miller) unanimously affirmed the trial court decision, finding that the fact that Developers Surety was not a party to the contract did not prevent the contract from waiving sovereign immunity. Equitable subrogation allowed Developers Surety to step into the shoes of Walker once it had liability, and that included the waiver of sovereign immunity in the agreement. The Court of Appeals also found the grant of summary judgment was proper, in part because of the facts deemed admitted by the Department when it failed to respond to requests for admission. Because Developers Surety had no obligation due to the Department’s breach, the failure to notify the Department which entity would complete the project did not create a claim by the Department.

On March 3, 2014, the Supreme Court of Georgia unanimously granted the petition for certiorari to consider the following question:

  1. Whether the State’s sovereign immunity is waived for a claim asserted by a surety on a contract with the State, Ga. Const. Art. I, Sec. II, Para. IX (a)?

The case was heard on May 5, 2014.

On September 22, 2014, the Supreme Court unanimously affirmed the Court of Appeals decision. Writing for the Court, Presiding Justice Hines explained that sovereign immunity is waived for breach of contract actions. While it is clear that the Department waived sovereign immunity for breach of contract actions and that Walker Roofing could have maintained an action against the Department for breach of contract, the statute also allows Developers Surety to “succeed” to the rights of Walker Roofing. The waiver of sovereign immunity for purposes of breach of contract addresses the “action,” not which party may bring the action.

S14A0620 Barzey v. City of Cuthbert

This case began when Deron Shorter was killed in 2010 while operating a mower for the City of Cuthbert. Shorter was not married and did not have any dependents, so the City denied his mother’s claim for his death benefit under the Worker’s Compensation Act. Barzey sued, claiming the statute’s limitations on death benefits to dependents (instead of heirs) violates the Equal Protection clause. The trial court granted summary judgment to the City and Barzey appealed.

The case was originally set to be heard on April 21, 2014, but was postponed and was heard on June 16, 2014.

On September 22, 2014 the Supreme Court unanimously affirmed the trial court decision. Writing for the Court, Justice Nahmias first addressed the jurisdictional issues, finding that the case was properly before the Supreme Court because she asserted constitutional claims in the trial court. The fact that the trial court ruled 13 days after the summary judgment motion was filed (before Barzey could respond) did not require reversal because Barzey could not show any harm. The trial court properly found that the Worker’s Compensation Act does not violate her rights to due process and equal protection by preventing her, as a non-dependent heir, from recovering for her son’s death. It is not irrational for the legislature to treat dependent and non-dependent heirs differently, and the legislature also had a rational basis for requiring payment into the public treasury when someone dies and leave no dependents.

S14Q0623 Federal Deposit Ins. Corp. v. Skow et al.

This case involves the actions of Integrity Bank, which made loans in excess of $500,000, allegedly engaging in high risk lending practices, ultimately leading to losses exceeding $70 million when the bank failed in 2008. The FDIC was appointed as the receiver and sued several members of the Bank’s Director Loan Committee, claiming ordinary negligence and breach of fiduciary duty based on ordinary negligence. The directors filed a motion to dismiss based on Georgia’s business judgment rule, claiming the FDIC failed to rebut the presumption of good faith. (Another case involving the business judgment rule and banks was argued in April.)

The Northern District of Georgia dismissed the claims for ordinary negligence and breach of fiduciary duty, finding they were precluded as a matter of law by the business judgment rule. The district court then certified its order for interlocutory appeal, which the Eleventh Circuit granted.

After finding the issue to be an unresolved question of Georgia law, the Eleventh Circuit unanimously certified the following questions to the Supreme Court of Georgia:

  1. Does a bank director or officer violate the standard of care established by O.C.G.A. § 7-1-490 when he acts in good faith but fails to act with “ordinary diligence,” as that term is defined in O.C.G.A. § 51-1-2?
  2. In a case like this one, applying Georgia’s business judgment rule, can the bank officer or director defendants be held individually liable if they, in fact as alleged, are shown to have been ordinarily negligent or to have breached a fiduciary duty, based on ordinary negligence in performing professional duties?

The case was heard on May 19, 2014.

On September 22, 2014, the Supreme Court unanimously answered the certified questions (Nahmias, disqualified; Judge Dillard sitting by designation, concurring). Writing for the Court, Justice Hunstein explained that the Court’s earlier Loudermilk decision answered the questions. A bank officer may violate the standard of care, even when he or she acts in good faith, if he or she fails to exercise the skill of ordinarily prudent men in similar circumstances and lie positions. They can also be held individually liable if they violated the standard of care explained in Loudermilk.

S14A0784 Advanced Disposal Services Middle Ga., LLC v. Deep South Sanitation, LLC et al.S14A0785 Lowndes County v. Deep South Sanitation, LLC et al.

This case involves the constitutionality of an ordinance involving the curbside pickup of trash in Lowndes County. Before 2013, a number of private companies offered curbside pickup for residents of unincorporated Lowndes County, with the County also offering the option for individuals to pay to take their trash to six solid waste collection centers. After determining the collection centers were too expensive to operate, the County solicited proposals, ultimately adopting an ordinance prohibiting any company from picking up solid waste from residents without a franchise or temporary permit. An exclusive franchise was given to Advanced Disposal Services. Deep South continued offering curbside pickup in spite of the ordinance and the County sued. The trial court found the ordinance unconstitutional and required the County to continue allowing Deep South to operate in a “legal manner.” The County and Advanced Disposal appealed.

The case was heard on May 19, 2014.

On September 22, 2014, the Supreme Court unanimously reversed the trial court decision. Writing for the Court, Chief Justice Thompson explained that the proper test to the constitutional challenge to the ordinance was rational basis. Applying that test, the trial court erred in finding a violation of Deep South’s due process rights because the regulation of collection and disposal of solid waste serves a legitimate public purpose of protecting the health, safety, and welfare of the people. The Board’s decision to enact the ordinance was rational because of the money it was losing and because such a plan could discourage illegal dumping in the county. Because the ordinance serves a legitimate purpose by rational means necessary to achieve that purpose, it does not violate Deep South’s substantive due process rights and the trial court erred by refusing to enter an injunction.

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