This Week at the Court
This Friday, April 27, 2012, the Supreme Court will hold oral argument in two cases, one of which is civil within the scope of our coverage. The Court is holding a special set argument in Thomasville, Georgia at the Thomasville Municipal Auditorium. A brief summary of the civil case being argued 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 will be heard at oral argument on Friday, April 27, 2012.
Released Opinions
On Tuesday, April 24, the Supreme Court released opinions in 19 cases, one of which is civil within the scope of our coverage (Monday was a state holiday). A brief summary of the case being decided is below and along with a summary of the opinion released.
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:
- 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.
Forthcoming Opinion
The Supreme Court will not hold oral argument on Tuesday, but will release opinions in 19 cases, one of which is civil within the scope of our coverage (Monday is a state holiday). A brief summary of the case being decided is below and we will update on Tuesday morning with a summary of the opinion released.
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:
- 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.
Next Week at the Court
On Monday, April 16, 2012, the Supreme Court of Georgia returns for one day of oral argument before its special sitting in Thomasville on April 27. The Court will hear argument in six cases, one of which is civil within the scope of our coverage.
2:00 pm Sitting
S12A0848 Adkins et al. v. Cobb County
This case began with an eminent domain proceeding against property owned by a Marietta attorney and a Cobb County Juvenile Judge, but is before the Supreme Court as a challenge to the constitutionality of the statute related to condemnation proceedings.
Cobb County condemned property owned by Adkins and Whitfield in order to build a sidewalk for a public works project. The county filed the declaration of taking on January 11, 2010 and Adkins and Whitfield acknowledged service on March 1, 2010. On March 31, 2010, Adkins and Whitfield answered, opposing the condemnation. The county moved to dismiss, claiming that Adkins and Whitfield had only until March 12, 2010 to answer and have a hearing based on O.C.G.A § 32-3-11(c), which limits the time for a hearing to “no later than 60 days from the date of filing of the declaration of taking.” The trial court granted the county’s motion and Adkins and Whitfield appealed, arguing the statute is unconstitutional as a violation of their due process rights.
No Forthcoming Opinions
The Supreme Court of Georgia will not be releasing any new opinions on Monday, April 16. The Court will be returning for one day of oral argument on Monday.
No Forthcoming Opinions
The Supreme Court of Georgia will not be releasing any new opinions on Monday. The next date for oral argument is currently set for April 16, 2012. We wish all of our readers a wonderful holiday.
New Grants of Petitions for Certiorari in Civil Cases
We are catching up on grants of petitions for certiorari in civil cases. The Court has granted certiorari in two additional cases since we updated last, and we have added one additional case from our previous grant list that is within the scope of our coverage.
S12G0463. AMERICAN GENERAL FINANCIAL SERVICES, INC. v. JAPE
This case presents an apparent conflict between the Federal Arbitration Act and Georgia law. It began when American General Financial Services filed a collection against Jape to recover on a loan Jape obtained from American General. Jape counterclaimed, alleging breach of contract. When Jape filed his counterclaim, American General moved to compel arbitration and stay the proceedings pending arbitration. The trial court denied the motion, finding that American General waived its right to arbitrate the counterclaim by filing a collection action in the trial court. American General requested a certificate of immediate review and when the trial court did not issue it, American General filed a notice of direct appeal.
The Court of Appeals dismissed the notice of appeal for lack of jurisdiction, finding that American General failed to obtain a certificate of immediate review for the motion to compel arbitration and stay proceedings. (Thanks Hunton & Williams LLP for providing a copy of the Court of Appeals decision that was not otherwise available.)
On March 5, 2012, the Supreme Court granted certiorari in a 4-3 vote (Hunstein, Carley, and Hines dissenting) to consider the following question:
- Did the Court of Appeals err in finding that the Federal Arbitration Act’s provision allowing direct appeals from orders denying motions to compel arbitration, see 9 U.S.C. § 16 (a) (1) (B), does not preempt Georgia’s procedural rules which require that appeals of interlocutory orders come by application?
S11G1815. SCOTT v. SHAW INDUSTRIES, INC.
This case involves whether an injured employee’s later injury constituted a “fictional new injury” or a “change in condition.” Scott was injured in a workplace accident in 1996, resulting in the partial amputation of her foot. Scott was on temporary total disability for approximately ten months, and then returned to work. But as a result of the prosthesis she had to wear, she had significant knee problems and underwent knee surgery in 1997. Scott continued to work for the next 12 years, but the knee problems and pain associated with them became progressively worse. Eventually her physician recommended she stop working altogether in September 2009, and she sought workers’ compensation benefits. Scott argued her inability to work was the result of a fictional new injury on the date her doctor first held her out of work. Shaw argued that her inability to work was because of a change in condition, and thus the statute of limitations barred her claim. The ALJ awarded benefits, and the full Board affirmed the award. Shaw appealed to the superior court, which also affirmed the award. Shaw then filed a discretionary appeal.
The Court of Appeals (Dillard, Smith, Mikell) unanimously reversed the lower decisions, concluding that the injury could only be characterized as a change in condition because the Scott originally received benefits, returned to work, and only gradually worsened. The Court of Appeals found that, because the injury was a change of condition, the statute of limitations barred her new claims.
On March 19, 2012, the Supreme Court granted certiorari in a 4-3 vote (Carley, Benham, and Thompson dissenting) to consider the following question:
- Did the Court of Appeals err in concluding that the concept of a “fictional new accident” cannot apply to situations where an employee who has suffered a compensable injury returns to work after receiving workers’ compensation benefits as a result of that injury and thereafter suffers a progressive worsening of his condition that forces the employee to cease work. Central State Hosp. v. James, 147 Ga. App. 308 (1978); R.R. Donnelley v. Ogletree, 312 Ga. App. 475 (2011).
S11G1871. STOLTE et al. v. FAGAN et al.
This case began as a medical malpractice case by Stolte and her husband against her dentist, Fagan, and resulted in a verdict for the dentist. But the issues in the case focus on what happened at trial, specifically the use of peremptory strikes for jurors and an allegedly-improper closing statement.
At the outset of the trial, Stolte claims the trial court should have stricken four prospective jurors for cause and because the court failed to do so, Stolte was forced to use her peremptory strikes on those jurors. Then, at closing argument, Fagan’s attorney raised Fagan’s reputation as a reason for the jury to return a defense verdict. Stolte’s counsel objected, and the trial court sustained the objection. After the conclusion of Fagan’s closing argument, Stolte’s counsel objected again, requesting the court immediately instruct the jury not to concern itself with the impact on Fagan’s reputation. The court declined, but included the word “reputation” in the general charge. After the jury returned a verdict for Fagan, Stolte appealed.
The Court of Appeals (McFadden, Phipps, Andrews) unanimously affirmed the lower court decision, finding that the Supreme Court has held that if a party is required to use its peremptory strikes to exclude a juror who should have been challenged for cause, the error is not harmful if the party did not exhaust its peremptory strikes. The panel found that, while an exception exists for criminal cases, the exception does not apply to civil cases and thus Stolte did not show she was harmed by any error. The panel also found that Stolte waived any objection to the closing statement because she did not contemporaneously object and did not ask for an immediate curative instruction.
On March 19, 2012, the Supreme Court unanimously granted certiorari to consider the following questions:
- Did the Court of Appeals err in holding that a civil litigant must establish that she used all of her peremptory strikes before she can show harm resulting from a trial court’s refusal to strike an unqualified juror? See Harris v. State, 255 Ga. 464 (1986); Wallace v. State, 275 Ga. 879 (2002).
- Did the Court of Appeals err in holding that plaintiffs acquiesced and/or waived their objections to comments by defense counsel in closing argument about the defendant dentist’s professional reputation?
The case has been assigned to the June 2012 oral argument calendar.
