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:

1. Whether the Court of Appeals applied the proper legal analysis in reversing the grant of summary judgment on the wrongful dissolution claim?

The case was heard at oral argument on February 7, 2012.

On Monday, May 7, 2012, the Supreme Court unanimously reversed the Court of Appeals (Thompson, not participating; Nahmias and Carley, concurring). Writing for the Court, Justice Hines explained that the claim of wrongful dissolution involves the attempt to appropriate the assets of a business, which may include prospective business, without appropriate compensation. The Court of Appeals incorrectly cited precedent regarding the “new prosperity” of the partnership, and the tort of wrongful dissolution does not require the attempt to appropriate the “new prosperity” of the partnership. The case was remanded to the Court of Appeals to address the evidence of a $180,000 fee in light of the Court’s decision.

S12A0140 Cook v. Board of Registrars of Randolph County

This case is an appeal of a ruling regarding the residency of a Randolph County Board of Education member. Henry Cook had been the target of a local law seeking his removal from office that the Supreme Court found unconstitutional in 2010. The Randolph County Board of Registrars concluded that Cook was no longer a resident of Randolph County because he purchased a house in Dothan, Alabama after his house burned down and a sister with whom he was living died. Following a trial, the trial court concluded Cook was not a resident of Randolph County.

Cook petitioned for the Supreme Court to review whether the Board of Registrars was authorized to remove him from the list of eligible voters.

The case was heard by the Supreme Court on January 9, 2012.

On Monday, May 7, 2012, the Supreme Court unanimously transferred the case to the Court of Appeals.  Writing for the Court, Justice Nahmias explained that the Court’s jurisdiction over “cases of election contest” does not extend to cases involving the whether an individual is an elector in a county. When the Court first granted the application for a discretionary appeal, it asked the parties to address the jurisdictional issues. The opinion then lays out a detailed explanation of the Court’s jurisdiction over election contests, which had never been previously addressed, and which does not include challenges to the qualifications of a voter unless it is related specifically to whether an election was contested.

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:

1. Whether the Court of Appeals applied the proper legal analysis in reversing the grant of summary judgment on the wrongful dissolution claim?

The case was heard at oral argument on February 7, 2012.

S12A0140 Cook v. Board of Registrars of Randolph County

This case is an appeal of a ruling regarding the residency of a Randolph County Board of Education member. Henry Cook had been the target of a local law seeking his removal from office that the Supreme Court found unconstitutional in 2010. The Randolph County Board of Registrars concluded that Cook was no longer a resident of Randolph County because he purchased a house in Dothan, Alabama after his house burned down and a sister with whom he was living died. Following a trial, the trial court concluded Cook was not a resident of Randolph County.

Cook petitioned for the Supreme Court to review whether the Board of Registrars was authorized to remove him from the list of eligible voters.

The case was heard by the Supreme Court on January 9, 2012.

Monday, May 7, 2012, 10:00 am Sitting

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:

1. 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 will be heard at oral argument on May 7, 2012.

S12Q0941. MCI Communications Services, Inc., d/b/a Verizon Business v. CMES, Inc.

This csae began when CMES cut through a fiber optic cable owned by MCI in 2007. As a result, over a half million phone calls were blocked, leading to 242 complaints from customers. MCI did not issue any refunds or lose any profits or customers. MCI sued CMES, seeking loss-of-use damages, measured as the rental value of a substitute fiber line for the nine hours of the outage, which MCI calculated at $362,000 plus $28,000 to repair the cable. The district court granted summary judgment to CMES on the loss-of-use claim, finding that Georgia law does not allow the recovery of that type of damages in this case. MCI appealed to the Eleventh Circuit.

The Eleventh Circuit certified the following question to the Georgia Supreme Court:

1. Under Georgia law, may a telecommunications service provider whose cable is severed recover loss-of-use damages measured by the rental value of substitute cable when it has not rented such cable or otherwise incurred any monetary loss apart from the cost of repair?

The case will be heard at oral argument on May 7, 2012.

S12A0947. Ehlers, Exr. v. Upper West Side, LLC et al.

While this case involves a property dispute, the issue for the Supreme Court of Georgia is the proper application of the statute of limitations to a deed reformation.  The case centers around the disputed ownership of property in northwest Atlanta that originally passed to the estate of Albert T. Ehlers when he died in 1993. At some point in the transactions related to the property, there was a drafting error, leading to a deed that resulted in title of only a 25-foot strip of land passing instead of the entire eight-acre parcel. In 2008, Upper West Side sued, requesting the court reform the deed so that the deed conveyed the entire parcel instead of just the strip of land. The trial court changed the deed and Ehlers appealed, arguing that the claims were barred by the seven-year statute of limitations, and that a 1995 deed could not be changed in a lawsuit brought in 2008. Upper West Side argues that the statute did not begin running until the error was discovered in 2002.

The case will be heard at oral argument on May 7, 2012.

S12A0852. State of Georgia et al. v. Singh et al.; S12X0973. Singh et al. v. State of Georgia

These cases involve the constitutionality of the Georgia in personam RICO statute. In late 2010, Clayton County brought a forfeiture action against Singh, alleging that his gas station was an illegal commercial gambling operation engaging in racketeering activity. The trial court granted the state’s request for a receiver, who took possession of the gas station and the assets derived from the alleged racketeering activity. In February 2011, Singh filed a motion to dismiss the state’s case, on the basis that the in personam counts of the complaint were unconstitutional. The trial court granted the motion based on a 2009 Supreme Court case, and the state appealed, alleging the trial court misinterpreted the 2009 case. In a cross appeal of the trial court’s denial of the motion to dismiss the remaining counts, Singh argues the machines were not illegal gambling devices.

The case will be heard at oral argument on May 7, 2012.

Tuesday, May 8, 2012, 10:00 am Sitting

S12A0700. We, The Taxpayers et al. v. Board of Tax Assessors of Effingham County; S12X0701. Board of Tax Assessors of Effingham County v. We, The Taxpayers et al.

This case involves the constitutionality of a 2009 state statute related to increases in assessed values of property subject to ad valorem taxes. According to the statute, a moratorium on increasing the assessed value would be in place from January 1, 2009 through the end of taxable year 2011. An organization of taxpayers in Effingham County instituted this mandamus action to compel the Board of Assessors to implement the moratorium. The trial court denied competing motions for summary judgment, finding there were disputed facts that required a trial. Soon after, the Board of Assessors argued that the case should be dismissed because the taxpayers’ organization did not pursue an administrative remedy to challenge the assessed values, and the trial court agreed, dismissing the case. The taxpayers appealed the dismissal, and the Board of Assessors cross-appealed the denial of their motion for summary judgment, arguing the moratorium statute is unconstitutional.

The case will be heard at oral argument on May 8, 2012.

S12G0517, 0526, 0527. ARCHER WESTERN CONTRACTORS, LTD et al. v. ESTATE OF MACK PITTS

This case began when Mack Pitts, a construction worker, was killed while working at a construction site at Hartsfield-Jackson Atlanta International Airport. Pitts was struck by a vehicle driven by an employee of A&G Trucking and his estate obtained a wrongful death judgment against the company and its driver. But the judgment exceeded the liability insurance coverage of the trucking company, so the estate brought actions against the City of Atlanta and the various companies associated with the project. The estate claimed that all of the companies breached a contractual duty to require that the trucking company maintain coverage with a $10 million minimum in liability insurance and that the City of Atlanta breached a ministerial duty to require the trucking company to carry insurance in that amount. The trial court granted the City’s summary judgment motion, determining that the Estate lacked standing to enforce the minimum requirement because Pitts was not a third-party beneficiary of the agreement.

The Court of Appeals (McFadden, Smith, Mikell) unanimously affirmed in part and reversed in part, finding that the Estate was an intended third-party beneficiary of the contract and thus had standing to pursue the breach of contract claim against the contractors and that the Worker’s Compensation Act did not bar the claim. In addition, the Court of Appeals determined that the trucking company was a subcontractor required to have insurance and the defendants breached their contractual duty by allowing the trucking company to work on the project without minimum coverage. But the panel also upheld the grant of summary judgment to the City because there was no evidence of that gave rise to a duty that was separate from contracts.

On April 24, 2012, the Supreme Court granted the petition for certiorari in a 4-3 vote (Hunstein, Carley, Thompson dissenting) to consider the following issue:

1. Did the Court of Appeals err in reversing the trial court’s grant of summary judgment to the defendants? See OCGA § 34-9-11 (a); Crisp Regional Hosp. v. Oliver, 275 Ga. App. 578, 579-583 (621 SE2d 554) (2005).

The case has been assigned to the July 2012 oral argument calendar.

S12G0714. ARBY’S RESTAURANT GROUP, INC., et al. v. MCRAE

This case began in February 2006, when McRae, an employee of Arby’s Restaurant Group, accidentally drank a cup of lye that had been left in the break room, causing third degree burns to her esophagus.  The cup in which the lye was placed was similar to a cup she had been using.  Arby’s did not contest her worker’s compensation claim and began paying benefits in April 2006.  In late 2009, McRae’s doctor determined she had reached maximum medical improvement and was left with a 65% permanent body impairment. McRae requested a hearing on temporary total disability and permanent partial disability. Arby’s attorneys tried to schedule an consultation with the treating physician, but she refused without express permission of her patient, which McRae withheld. The ALJ required McRae to give the authorization and removed her claim from the hearing calendar when she refused to do so. She appealed this order, claiming that the Worker’s Compensation Act does not require her to authorize ex parte communication between opposing counsel and her physician and and that her right to medical privacy is protected under Georgia law and the Health Insurance Portability and Accountability Act (HIPAA). The superior court upheld the ALJ decision and McRae appealed.

The Court of Appeals reached a 4-3 decision reversing the ALJ decision (Barnes, Phipps, Ellington, Adams concurring; Miller, Doyle, Blackwell dissenting). The majority determined that the legislature did not contemplate ex parte communications when it drafted O.C.G.A. § 34-9-207. The provision was designed to require the release of relevant “medical records and information,” it does not require the authorization of an ex parte communication. The majority further found that the provisions of HIPAA do apply to worker’s compensation proceedings, but that they only permit disclosure necessary to comply with state law. Two judges filed dissents. Judge Miller, joined by Judge Doyle, would have found that the intent of the statute was to streamline the process of access to claims and distinguished the civil litigation context from the Worker’s Compensation Context. Judge Blackwell, joined by Judges Miller and Doyle, would have found that the provisions of the statute require disclosure not only of medical records but also “information . . . related to the examination, treatment, testing, or consultation concerning the employee,” that refers to information beyond mere documents.

On April 24, 2012, the Supreme Court granted the petition for certiorari in a 4-3 vote (Hunstein, Carley, Benham dissenting) to consider the following issue:

1. Whether the Court of Appeals properly interpreted OCGA § 34-9-207.

The case has been assigned to the July 2012 oral argument calendar.

S12G0729. EVERETT v. NORFOLK SOUTHERN RAILWAY COMPANY

This case began with a 2006 train derailment involving a six-car train near the Hapeville Ford facility. Everett was the conductor. When the train was about to move, the train derailment device was in the “on” position but one of the other employees assisting Everett reported it was “off.” As the train moved, it began to derail about 150 feet from the plant’s entrance. Everett immediately pulled the brakes, but by the time the train came to a stop, three of the six cars had derailed, two of which crashed into the Ford plant leading to a fire. Everett was not injured, but when he went home, he experienced severe emotional distress form the incident. After a period in the hospital for treatment, he is unable to return to work.

Everett sued for negligent infliction of emotional distress, which is a valid claim under the Federal Employers’ Liability Act (FELA). After an earlier appeal where the Court of Appeals affirmed the denial of a motion for summary judgment, the case was proceeding to trial. Everett filed a motion in limine asking the court to prevent Norfolk Southern from arguing that Everett was not in the “zone of danger.” The trial court granted the motion and denied Norfolk Southern’s motion for a directed verdict.

The Court of Appeals reached a divided 4-3 decision vacating the judgment and remanding the case for trial (Ellington, Smith, Phipps, Andrews concurring; Miller, Doyle, McFadden dissenting). The majority found the trial court improperly removed the issue of the “zone of danger” from consideration by the jury. There was a dispute of facts about this issue and the previous summary judgment denials did not resolve the issue. The majority also found it was unable to review whether the motion for directed verdict was denied because of the lack of evidence on the point. Judges Miller and Doyle filed dissents. In her dissent, joined by Judge McFadden, Judge Miller cited the law of the case from the previous order and the lack of any evidentiary dispute. She would have found the trial court properly granted the motion in limine. Judge Doyle also dissented, joined with Judges Miller and McFadden, and she would have found that under FELA, the zone of danger issue is always resolved by the trial court and not by the jury, whether any facts were in dispute or not.

On April 24, 2012, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

1. Whether the Court of Appeals erred in holding that the question of whether the plaintiff was in the “zone of danger” was one for the jury?

The case has been assigned to the July 2012 oral argument calendar.

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:

1. 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 will be heard at oral argument on Friday, April 27, 2012.

S11G0907. Crisler et al. v. Haugabook et al.

This case originally involved an attorney who falsely claimed he obtained a $1 million settlement for his clients. The attorney transferred $1 million to the clients, the Crislers, using a check-kiting scheme and the Crislers refused to return the money after the scheme was uncovered. The Court of Appeals reversed a trial court determination and instructed the court to enter judgment in favor of Haugabook, finding the Crislers received $1 million to which they were not entitled.

On remand, the trial court granted summary judgment as directed, but several weeks later, Haugabook amended his complaint, adding a prayer for prejudgment interest and filed a motion for entry of final judgment of prejudgment interest. The trial court awarded prejudgment interest at the legal rate, and the Crislers appealed.

The Court of Appeals (Smith, Mikell, Adams) unanimously affirmed the trial court’s grant of prejudgment interest to Haugabook, finding the award of prejudgment interest is mandatory for liquidated damages.

The Crislers filed a petition for certiorari, arguing the Court of Appeals ignored precedent which prohibits the award of prejudgment interest and claiming the amendment to the complaint was made without leave of the court. Haugabook responded, arguing the award of interest was proper.

On September 6, 2011, the Supreme Court unanimously granted the petition for certiorari to address the following issue:

1. Whether a party must make a prayer for prejudgment interest under OCGA § 7-4-15 and if so whether it can be made without leave of court following the grant of summary judgment.

The case was heard at oral argument on January 10, 2012.

On Tuesday, April 24, 2012 the Supreme Court unanimously affirmed the Court of Appeals. Writing for the Court, Justice Thompson explained that, because prejudgment interest flows automatically from a liquidated demand, the trial court should award it as long as there is a demand for prejudgment interest before the final judgment. Crisler was given the opportunity to contest the award by protesting the amendment to the complaint, also making the award of prejudgment interest proper.

S11G0907. Crisler et al. v. Haugabook et al.

This case originally involved an attorney who falsely claimed he obtained a $1 million settlement for his clients. The attorney transferred $1 million to the clients, the Crislers, using a check-kiting scheme and the Crislers refused to return the money after the scheme was uncovered. The Court of Appeals reversed a trial court determination and instructed the court to enter judgment in favor of Haugabook, finding the Crislers received $1 million to which they were not entitled.

On remand, the trial court granted summary judgment as directed, but several weeks later, Haugabook amended his complaint, adding a prayer for prejudgment interest and filed a motion for entry of final judgment of prejudgment interest. The trial court awarded prejudgment interest at the legal rate, and the Crislers appealed.

The Court of Appeals (Smith, Mikell, Adams) unanimously affirmed the trial court’s grant of prejudgment interest to Haugabook, finding the award of prejudgment interest is mandatory for liquidated damages.

The Crislers filed a petition for certiorari, arguing the Court of Appeals ignored precedent which prohibits the award of prejudgment interest and claiming the amendment to the complaint was made without leave of the court. Haugabook responded, arguing the award of interest was proper.

On September 6, 2011, the Supreme Court unanimously granted the petition for certiorari to address the following issue:

1. Whether a party must make a prayer for prejudgment interest under OCGA § 7-4-15 and if so whether it can be made without leave of court following the grant of summary judgment.