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Released Opinion

June 2, 2014
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This morning, the Supreme Court released opinions in 11 cases. One of the opinions released is within the scope of our coverage and is summarized below. We will update shortly with summaries of the cases being argued today.

S13G1274. SEWELL, M.D., et al. v. CANCEL, M.D., et al.

This case stems from the restructuring of an anesthesiology practice (CGAS) that was under an exclusive contract to provide anesthesiology services to The Medical Center of Central Georgia in Macon. Cancel was the CEO of CGAS in 2001 when he discovered what he believed were fraudulent bills to Medicare, Medicaid, and insurance companies. After period of time and further allegations, The Medical Center sent a letter advising Cancel that it intended to cancel the agreement with CGAS in 2003. The Medical Center eventually retained Nexus Medical Group as the new exclusive provider of anesthesiology services. Nexus included several former CGAS physicians as well as other doctors, but not Cancel. Cancel and others sued, claiming breach of fiduciary duty, fraud, and other claims. A series of orders from the trial court granted summary judgment against Cancel as to all his claims and Cancel appealed.

The Court of Appeals (Phipps, Ellington, Dillard) unanimously found that the trial court correctly entered summary judgment against Cancel, but also found that a cross-appeal filed by the individual defendants was not properly before the court. The Court of Appeals determined that, because the ruling the individual defendants attempted to appeal was not issued until after the notice of appeal was filed on Cancel’s motions, the court was without jurisdiction to hear the purported cross-appeal.

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

  1. Did the Court of Appeals err in finding that it lacked jurisdiction to hear the defendants’ timely-filed cross-appeal to the extent that they sought review of an order entered after the plaintiffs’ notice of appeal was filed. See OCGA § 5-6-38; Rhone v. Bolden, 270 Ga. App. 712 (1) (608 SE2d 22) (2004)?

The case was heard on January 7, 2014.

On June 2, 2014, the Supreme Court unanimously reversed and remanded the case (Nahmias, not participating). Writing for the Court, Justice Hunstein explained that a cross-appeal that is timely filed does not need to be factually related to the issues of the main appeal, rather the cross-appeal can raise all errors or rulings adversely affecting the appellee. The Court overruled cases that have required otherwise. The Court further held that, as a matter of timing, an appellee may raise any adverse rulings issued prior to the time it files its notice of cross-appeal.

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