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Released Opinions

July 13, 2016

On July 8, 2016, the Supreme Court of Georgia issued six opinions of which three are within the scope of our coverage. Summaries of the cases and decisions are set forth below.

S16A0013 Cottrell v. Smith, et al.

In a unanimous opinion by Presiding Justice Hines, the Georgia Supreme Court affirmed the trial court’s entry of judgment notwithstanding the verdict and its earlier rulings granting motions for directed verdict in a lawsuit alleging defamation, related torts, and claims “potentially implicating the constitutionality of portions of the Georgia Computer Systems Protection Act (“GCSPA”), OCGA § 16-9-60 et. seq.”

The Supreme Court affirmed the trial court’s rulings on directed verdict, noting that its review applies the “any evidence” test and construes the evidence in favor of the losing party. With respect to the GCSPA claims, the Supreme Court explained that it was unnecessary to consider whether the GCSPA was unconstitutional because Cottrell failed to prove that, when the defendants allegedly participated in computer theft, computer trespass, computer invasion of privacy, and computer forgery, they acted with the statutorily required intent. With respect to the claim of intentional infliction of emotional distress, Cottrell failed to show that he suffered the extreme emotional distress required to prove the claim.

With respect to the claims resolved against Cottrell on JNOV, the Supreme Court observed that truth is a defense to claims of libel and slander. Because the jury did not award special damages, those claims could succeed only if what was said was defamatory per se; in this case, the possibilities were the imputation of a crime or professional or trade charges made with the intent to injure. Because Cottrell was a public figure, he had to show that any defamatory statements were made with actual malice, that is, with “actual knowledge that a statement is false or with reckless disregard as to its truth or falsity.” (quoting Atlanta Humane Soc. v. Mills, 274 Ga. App. 159, 165 (3), 678 S.E. 2d 18 (2005)). Reviewing the statements at issue, the Court found that they were truthful or expressions of opinion and none were made with actual malice. Finally, the Court found that there was no fiduciary relationship to support a breach claim and no private facts to support an invasion of privacy claim. The Court concluded, “In summary, a judgment notwithstanding the verdict was warranted in this case.”

S16A0326 Reed v. McConathy

In a unanimous opinion by Presiding Justice Hines, the Georgia Supreme Court held that the trial court erred in granting a motion to dismiss a petition for partition and accounting. The lawsuit arose after the 2004 transfer of an interest in real property from Reed to McConathy that resulted in the creation of a joint tenancy with right of survivorship. In 2007, Reed quitclaimed her interest in the property to Page, but Page quitclaimed it back the following day.

The Supreme Court noted that, under O.G.C.A. § 44-6-160, only tenants in common, not those holding as joint tenants with right of survivorship, can seek partition of real property.  As former O.C.G.A. § 44-6-190(a) provided in part, a joint tenancy estate “may be severed as to the interest of any owner by the recording of an instrument which results in his lifetime transfer of all or a part of his interest….” The Court concluded that Reed’s 2007 recorded quitclaim deed to Page was such a transfer, and that it severed the joint tenancy with right of survivorship. It did not matter that Page promptly turned the transfer around. The Court remanded the case to the trial court “for proceedings consistent with this opinion.”

The Supreme Court also pointed out that its jurisdiction was founded in its title to land jurisdiction. That will change on January 1, 2017, when O.C.G.A.§ 15-3-3.1(a) becomes effective and puts appellate jurisdiction over such cases in the Court of Appeals.

S15G1295 Bickerstaff v. SunTrust Bank

In a unanimous opinion by Justice Benham, the Georgia Supreme Court held that a class representative seeking to represent a plaintiff class challenging the bank’s imposition of overdraft fees that were alleged to be usurious could properly represent the class. The Court reversed the trial court’s ruling denying the motion for class certification and the decision of the Court of Appeals affirming that ruling.

The bank’s deposit agreement included a provision for arbitration of disputes and a provision giving depositors a period of time in which they could reject arbitration by sending written notice. Instead of sending notice, Bickerstaff filed suit seeking, among other things, the certification of a plaintiff class. The trial court denied the bank’s motion to compel arbitration because the filing of the lawsuit substantially complied with the rejection decision, and the Court of Appeals affirmed that ruling.

With respect to class certification, the trial court and the Court of Appeals both concluded that the numerosity required for class certification was lacking. In the view of the Court of Appeals, Bickerstaff spoke only for himself, not any other depositor, when he rejected arbitration.

The Supreme Court noted that “the filing of a timely class action complaint commences the action for all members of the class as subsequently determined.” (quoting American Pipe and Construction Co. v. Utah, 414 U.S. 538, 550 (1974)). That filing tolls the statute of limitations for other depositors to give notice that they also rejected arbitration. Bickerstaff represented that the plaintiff class would include at least 1,000, and that allegation was sufficient to support certification of the class.

The Court explained that both it and the Court of Appeals have allowed class representatives to “satisfy certain conditions such as a limitation period for filing suit or making a claim on behalf of those class members who ratify the representatives’ actions by remaining in the class after the class is certified.” Moreover, while it had not previously held that, by filing suit and seeking class certification, a party can “satisfy a contractual limitation period on behalf of absent call members,” other courts, including the Eleventh Circuit, had done so. It criticized the Court of Appeals’ reasoning, pointing out that the “entire class action” scheme is premised on the representative’s acting on behalf of the class. The representative’s actions are not conclusive on the class members, those actions simply toll the time for them to act until they choose to remain in the class or to opt out.

Released Opinions

July 6, 2016

On July 6, 2016, the Supreme Court of Georgia issued 24 opinions, of which six are within the scope of our coverage. (The Court issued 15 opinions on June 20, 2016, but none of them were within the scope of our coverage.) Summaries of the decisions and the cases are set forth below.

S15G1278 Scapa Dryer Fabrics, Inc. v. Knight, et al.

In a unanimous opinion by Justice Blackwell, with Justices Benham and Hunstein concurring in the judgment only, the Georgia Supreme Court held that the testimony of a plaintiff’s expert in an asbestos mesothelioma case was improperly admitted. That testimony, to the effect that “any exposure to asbestos at the Waycross facility was a cause of Knight’s mesothelioma regardless of the extent of the exposure, does not ‘fit’ the legal standard for causation….” The Court reversed the divided decision of the Georgia Court of Appeals.

Roy Knight was an independent contractor who worked at Scapa Dryer Fabrics’ Waycross plant “on multiple occasions” between 1967 and 1973. Forty years later, he was diagnosed with mesothelioma, and he and his wife sued Scapa claiming that it was responsible. At the plant, when Scapa used yarn containing asbestos, asbestos fibers were released into the air and picked up in the ductwork. In support of his case, Knight presented the testimony of Dr. Abraham, a pathologist to establish causation. That testimony is the subject of the decision.

The trial court entered judgment on a jury verdict in the Knights’ favor in the amount of $4 million, and the Court of Appeals affirmed in a divided decision, with three judges concurring in the judgment only as to Division 2, which related to expert testimony.

Dr. Abraham offered a cumulative exposure theory to support causation in his testimony. He said exposure to asbestos in excess of a background amount builds up to a cumulative exposure that might result in mesothelioma. The Court explained that, according to Dr. Abraham’s testimony, “each exposure in excess of the background is a contributing cause of the resulting mesothelioma, regardless of the extent of the exposure.”

The Supreme Court noted that former O.C.G.A. § 24-9-67.1, which was carried forward into the new Evidence Code at § 24-7-702(b), makes the trial court a gatekeeper for expert testimony. In so doing, the trial court is to look at the expert’s qualification, the reliability of the testimony, and its relevance. Here, the question was whether Dr. Abraham’s testimony would “assist the trier of fact … to understand the evidence or to determine a fact in issue.” O.C.G.A § 24-9-67.1(b).

The Supreme Court held that Dr. Abraham’s testimony “that any exposure to asbestos at the Waycross facility was a cause of Knight’s mesothelioma, regardless of the extent of exposure” was not helpful to the jury. The Court explained that, while substantial exposure was not required, a de minimis contribution would not be sufficient to establish causation. Dr. Abraham’s testimony suggested that “any exposure beyond background” would be enough. The Court noted that courts throughout the country have conditioned cumulative exposure testimony on a showing of “reliable data sufficient to show the requisite exposure.” Because Dr. Abraham did not “cast his ultimate opinion on causation (as he presented it to the jury) in those terms,” it was error to admit his testimony.

S15G1293, S15G1307 State of Georgia, ex rel. Hudgens v. Sun States Insurance Group, Inc.

In these cases involving the liquidation of an insurance company, the Georgia Supreme Court unanimously held that the Court of Appeals lacked jurisdiction over the State’s appeal from the denial of its assertion of sovereign immunity. Following Rivera v. Washington, 298 Ga. 770, 784 S.E. 2d 775 (2016), the Court noted that such appeals cannot proceed as a direct appeal, but must be submitted through the interlocutory appeal procedure of O.C.G.A. § 5-6-34(b).


S15G1446 Zarate-Martinez v. Enchimendia, et al.

In a unanimous opinion by Justice Melton, the Georgia Supreme Court rejected a variety of constitutional challenges to the portion of O.C.G.A. § 24-7-702(c)(2)(A) and (B) that require experts in medical malpractice actions to have been in active practice or serve as a faculty member teaching in the area for at least three of the past five years. The Court concluded that, while the affidavits of two of the plaintiffs’ experts were properly struck, a remand was necessary for the trial court to reconsider the striking of the affidavits of the third expert. In addition, the Court vacated the decision of the Court of Appeals.

The Supreme Court vacated the decision of the Court of Appeals because the appeal raised constitutional issues that were within the Supreme Court’s exclusive jurisdiction. With respect those constitutional challenges, the Supreme Court held that § 24-7-702(c)(2)(A) and (B) did not violate the substantive due process, jury trial right, separation of powers provisions of the 1983 Georgia Constitution and that the law did not grant special privileges or immunity or serve as a special law. In particular, the Court found that there is nothing vague in the requirement of active practice given that such practice had to be “with sufficient frequency to establish an appropriate level of knowledge, as determined by a judge.” The requirement to practice or teach satisfies rational relationship scrutiny because it is designed to serve “the legitimate government goal of ‘reduc[ing] the cost of liability for health care providers and ensur[ing] citizens continued access to care.”

With respect to the affidavits offered by the plaintiff, the Supreme Court found no abuse of discretion with respect to one that did not address the practice or teaching standard. Two other affidavits, both from a Dr. Hendrix, were improperly excluded by the trial court. Drawing on Dubois v. Brantley, 297 Ga. 575, 584-85, 775 S.E. 3d 512 (2015), in which it said that the expert need not have “actually performed or taught the very procedure at issue,” the Court found that the affidavit could not be struck simply because it did not say that the witness had performed the procedure at issue, here, an open laparoscopic tubal ligation.

The Supreme Court vacated the trial court’s dismissal of the lawsuit and remanded “with the direction that [the trial court] reconsider the testimony of Dr. Hendrix in a manner that is consistent with this Court’s decision in Dubois.”

S15G1571 Doctors Hospital of Augusta, et al. v. Alicea, Administratrix

In a unanimous opinion by Justice Nahmias, the Georgia Supreme Court affirmed the trial court’s denial of summary judgment to a hospital and a doctor on claims arising from their actions which were alleged to be not in compliance with an Advance Directive for Health Care. In so doing, the Court outlined the basis for immunity claims under the law. It affirmed the decision of the Court of Appeals, “endors[ing] much” of what it said, “although we think that the court skipped over one important point.”

Alicea’s grandmother, Bucilla Stephenson, executed an Advance Directive appointing Alicea as her agent. As the Directive stated and the Court noted, the effect of such a directive “is to ensure that in making decisions about a patient’s health care, it is the will of the patient or her designated agent, and not the will of the health care provider, that controls.”  Stephenson told Alicea that she did not want to be placed on a ventilator.

Stephenson was admitted to the hospital with a serious medical condition, and Alicea furnished the hospital with that Advance Directive. Alicea told them that Stephenson did not want to be intubated, be subjected to heroic measures, or have CPR performed. When contacted by the doctor, Alicea consented to a computed tomography scan and, subsequently, to a right chest thoracentesis to drain Stephenson’s lung infection. A few days later, Alicea consented to a surgical procedure without having been told that the procedure would require intubation and the use of a ventilator. Two days later, though,  at about 4:00 a.m., fearing respiratory failure, the doctor ordered life-prolonging intubation, without contacting Alicea.

In pertinent part, the Georgia Advance Directive Act puts the power to make decisions about medical care in the hands of the declarant, if able to understand the nature of the procedure, or the agent. The 4:00 a.m. intubation was a decision that Alicea was entitled to make because her grandmother was unable to make that decision for herself. The Court noted that, if the health care provider is “unwilling” to comply with an agent’s direction for medical, moral or other reasons, it must “promptly inform” the agent of the unwillingness to comply and “provide reasonably necessary consultation and care” in connection with a transfer of care. It explained, “But the unwilling provider is not entitled to then make the health care decision for the patient himself, or to just walk away.”

The Act provides immunity to a health care provider “who acts in good faith reliance on any direction or decision by the health care agent.” O.C.G.A. § 31-32-10(a). Subsections of that provision specify the circumstances in which immunity will apply.  The Court rejected the contention that “the General Assembly intended to broadly immunize health care providers for ‘failure to comply’ with the directives of health care agents.” Rather, good faith reliance is required for any claim of immunity, which must also fit into one of the safe-harbors to be valid.

The Court noted that the Court of Appeals did not discuss reliance. It explained, “What is critical, in our view, is that a provider claiming to have acted in ‘good faith reliance’ on the agent’s direction or decision can show that he acted in dependence on that direction or decision, not without reference to the agent’s wishes.” (emphasis in original) A provider who is aware of what the agent has decided can either comply with that decision or follow the statute if unwilling to do so. But, “when the health care provider makes the patient’s health care decisions on his own, without relying in good faith on what the patient’s agent directed, the provider must defend his actions without the immunity given in OCGA § 31-32-10(a).”

In the underlying case, there was, at the very least, a genuine issue of material fact, i.e., whether the doctor was acting “in honest dependence” on Alicea’s decisions. That precluded the entry of summary judgment in favor of the hospital and the doctor on immunity grounds.

S16A0367 State of Georgia, et al. v. International Keystone Knights of the Ku Klux Klan, Inc,

In a unanimous opinion by Justice Blackwell, the Georgia Supreme Court held that it did not have jurisdiction over the Department of Transportation’s appeal from a Circuit Order reviewing the Departments rejection of a request by the Klan to adopt a portion of State Route 515. The trial court rejected the Department’s claims of sovereign immunity and found the Department’s rejection to be an unconstitutional infringement of the Klan’s right to free speech and precluded it from denying an application based on “public concern related to a group’s history of civil disturbance,” without actually ordering the Department to approve the Klan’s application. The Department filed notice of appeal.

In pertinent part, the Appellate Practice Act requires an application to appeal from “decisions of the superior courts reviewing decisions of … state … administrative agencies.” O.C.G.A. § 5-6-35(a)(1). The Court noted, “Appeals in cases to which OCGA § 5-6-35(a)(1) applies must come by timely application, and if they come instead by a notice of appeal, the appellate court is without jurisdiction and must dismiss the appeal.”

The Court held that the denial of the Klan’s application was a “decision” of a “state administrative agency.” It distinguished between agency determinations of a legislative nature, which are prospective and general in application, and agency determinations of an adjudicative nature, which are immediate and specific in application and commonly look at the facts of particular parties and their activities. Decisions within the scope of O.C.G.A. 5-6-35(a)(1) are ones that involve “[t]he adjudicative function.” Thus, while no application is needed for an appeal in cases involving either executive or legislative determinations, an application for discretionary review is required for an appeal in cases involving agency determinations of an adjudicative nature.

The Court then held that “it is difficult” to see the Department’s denial of the Klan’s application to participate in the Adopt-A-Highway program “as anything but adjudicative in nature.” The Department’s action was as to a specific application and had “immediate and particular consequences,” and it did not constitute a rule or general statement of policy. It did not matter that the Department’s action was not marked by administrative procedural formality. Likewise, the substance of the proceeding below, which “amounted to a review of a decision to deny a particular Adopt-A-Highway application,” controlled, not the precise nature of the claims made.

The Supreme Court also noted that, to the extent the appeal was from the denial of sovereign immunity, it should have proceeded on an interlocutory basis, not by direct appeal. See Rivera v Washington, 298 Ga. 770, 784 S.E. 2d 775 (2016). But, because the trial court ruled on summary judgment and entered an injunction against the Department, the Department’s appeal might proceed.

Finally, the Supreme Court noted that, insofar as the trial court concluded that the program does not implicate only government speech, it may have decided in a way “inconsistent” with Walker v. Texas Div., Sons of Confederate Veterans, 135 S. Ct. 2239 (2015), which was decided while the case was pending on appeal. It expressed no opinion on “whether the principles set forth in Walker apply equally to the Georgia Constitution and, if so, whether the decision of the trial court actually is inconsistent with Walker.”

S16A0451 Moreno v. Smith

In a unanimous opinion by Justice Blackwell, the Georgia Supreme Court reversed a trial court’s grant of partial summary judgment and reversed and vacated the trail court’s judgment on a claim of breach of contract with respect to a piece of property. That property was owned in half by Moreno and half by her mother. Moreno’s mother gave her a half interest and agreed to sell her the other half interest for %75,000, payable in $00 monthly installments. When Moreno made no payments, he mother filed suit for breach of contract and for an accounting.

The trial court entered partial summary judgment in favor of Moreno’s mother on the contact claim, rejecting Moreno’s contention that the contract was a sham that allowed her mother to “demonstrate an interest in the property and that she was earning income from it.”

As the Supreme Court noted, a mutual meeting of minds is essential to the formation of a binding contract. It pointed to Farnsworth’s treatise on Contracts for the proposition that, “[I]n those unusual instances in which one intends that one’s assent have no legal consequences[,] [u]nder the objective theory, a court will honor that intention if the other party has reason to know it. And it will honor it if the other party actually knows it.” (emphasis in original). And, while parol evidence cannot vary the terms of a valid written agreement, it can be used to show that no valid agreement was reached.

Moreno’s evidence created a genuine issue of material fact as to the existence of a binding contract that could not be resolved on summary judgment. That required the reversal of partial summary judgment and the related judgment against Moreno on the breach of contract claim. In addition, without a contract, there was no basis for ordering an accounting.

Released Opinions

June 8, 2016

On June 6, 2016, the Supreme Court of Georgia issued 17 opinions, of which four are within the scope of our coverage. Summaries of the cases and decisions are set forth below.

S15G1184 Barking Hound Village, LLC v. Monyak, et al.

In a unanimous opinion by Chief Justice Thompson, the Supreme Court of Georgia held that the measure of damages for the negligent killing of a pet dog includes both the animal’s fair market value at the time of loss plus interest and any medical or other expenses reasonably incurred in treating the animal. The Court reversed the portion of the Georgia Court of Appeals’ decision that limited the recoverable damages to the reasonable expenses incurred where the dog’s actual market value was minimal or non-existent.

One of the Monyak’s dogs was a mixed-breed rescue Dachshund. They boarded her and another of their dogs, a 13 year old mixed-breed Labrador retriever, at Barking Hound Village, where the Labrador’s medicine was erroneously administered to the Dachshund, which developed renal failure and died after months of treatment that included dialysis. In ruling on Barking Hound’s summary judgment motion, the trial court held that the dog’s actual value would include the reasonable medical and other expenses and non-economic considerations reflecting the dog’s intrinsic value. The Court of Appeals found that, as a rescue dog, the Dachshund had little or no value other than sentimental, so nothing relating to the dog’s intrinsic value could be recovered.

The Supreme Court reversed the decision of the Court of Appeals in part. It “f[ound] the Court of Appeals erred in deciding that an application of actual value to owner standard was the appropriate measure of recoverable damages, but additionally  find that a cap on all damages based on application of the fair market value standard as urged by [Barking Hound] is likewise incorrect.” The court noted that, more than 120 years ago, it had held that the measure of damages included “not only the full market value of the animal at the time of loss plus interest, but also expenses incurred by the owner in an effort to cure the animal.”

The Supreme Court rejected Barking Hound’s contention that the expenses of care were just part of the aggregate, which was limited to the animal’s value. It pointed to its prior decisions which establish that there is no cap on the allowable expenses of care.

The Supreme Court went on to agree with the Court of Appeals in rejecting the notion that the owner of a negligently or intentionally killed animal can recover for the animal’s sentimental value. Even so, it allowed that “opinion evidence, both qualitative and quantitative, of an animal’s particular attributes — e.g., breed, age, training, temperament, and use” should be just as admissible as similar evidence relating to other types of personal property. In the end, that evidence must relate to “the value of the dog in a fair market, not the value of the dog solely to its owner.”

S15G1804 Toyo Tire America Manufacturing, Inc. v. Davis, et al.

In a unanimous opinion by Justice Nahmias, the Supreme Court of Georgia held that a nuisance plaintiff can recover both past damages for discomfort and annoyance and prospective damages for the diminution in the value of their property attributable to future disruption and annoyance. The Court affirmed the judgment of the Court of Appeals.

In 2005, Toyo Tire constructed a manufacturing and distribution facility across the road from the home the Davises had and have been living in. After three expansions, the plant employed about 1,000 people and produced about 13,500 tires per year. A planned fourth expansion will increase both of those figures. The plant operates around the clock, with two 12-hour shifts a day. The Davises complain that the plant constitutes a nuisance, burdening them with light, noise, black dust, traffic, and unsightliness. They were unsuccessful in persuading Toyo Tire to buy their home, as it had done for two of their neighbors. So, they filed suit alleging nuisance and trespass and seeking damages.

The trial court denied Toyo Tire’s motion for summary judgment, which argued, among other things, that the Davises could not recover both for the diminution of their property’s value and for the discomfort and annoyance caused by the nuisance. Toyo Tire also attacked the sufficiency of the Davises’ evidence of causation. On interlocutory review, the Court of Appeals affirmed the trial court’s ruling in a divided seven-judge opinion.

The Supreme Court affirmed the judgment of the Court of Appeals. With respect to the testimony of the Davises’ expert witness, the court concluded that it was sufficient to support an inference of causation. It did not decide whether the expert’s opinion was sufficiently grounded to be admissible, leaving that to the trial court on remand, if that issue were raised. The court stated, “Viewed in its full context and with the charity required in the summary judgment setting,” the testimony of the Davises and their expert was sufficient.

With respect to the allowable damages, while Georgia law does not allow a double recovery for a single injury, the damages claimed were not duplicative. Recovery for disruption and annoyance compensates for the past aspects of an injury attributable to a nuisance, and the diminution in value reflects the future effects of the nuisance’s operation.  The court “adhere[d] to the long line of Georgia precedent holding that recovery for both the backward-looking personal injury to the occupant and the forward-looking injury to the owner’s property is available in a continuing nuisance case.” Because language in the Court of Appeals’ decision in Stanfield v. Waste Management of Georgia, 287 Ga. App. 810, 812, 652 S.E. 2d 815 (2007), was to the contrary, the Supreme Court overruled Stanfield, deeming it “a mistaken step off a long and firm path of Georgia law.”

S15G1808, S15G1811 Roseburg Forest Products Company, et al.  v. Barnes

In a unanimous opinion by Justice Melton, the Supreme Court held that a workers’ compensation plaintiff’s claims were barred by the statute of limitations and were not revived when Barnes sought untimely medical treatment for his injury. He lost the lower part of his left leg in an industrial accident in 1993. Barnes was fitted with a prosthetic leg and returned to light duty, going from temporary total disability status to permanent partial disability until 1998. The site changed hands in 2006, and Barnes continued working there until he was laid off in September 2009. After complaining of chronic knee pain in 2009, he received a new prosthesis in November 2011. In August 2012, Barnes submitted an application to go back on temporary total disability, and in November 2012 filed a separate claim asserting a new “fictional” new injury that would, statutorily, relate to a worsening of his original injury.

The Administrative Law Judge found the 2012 claims barred by the statute of limitations, and the State Workers Compensation Board and the trial court affirmed. The Court of Appeals, however, reversed, holding that the claims were timely.

The Supreme Court reversed the decision of the Court of Appeals. Barnes’ claim for the resumption of temporary total disability payments had to be brought within two years of the last weekly payment of benefits. Even if his injury was “catastrophic” and he could get TDD benefits indefinitely, Barnes still had to apply for them within two years of the last payment to enforce his rights. His fictional new injury claim was also untimely because it was not brought within one year of the end of his employment in September 2009. The court explained, “The fact that Barnes sought additional remedial treatment in December 2011 did not revive his claim that had already become time barred in November 2010.” It noted that allowing injured employees to revive stale claims by seeking remedial treatment after the statute of limitations has run conflicts with the goals of closure and finality that are part of the workers compensation system.

S15A0516 Mays v. Southern Resources Consultants, Inc.

In a unanimous opinion by Presiding Justice Hines, the Supreme Court reversed a trial court’s decision to grant temporary injunctive relief in part and vacated the other portions of the injunctive order. The underlying case was a business and trade secrets dispute that arose after the Georgia Department of Health and Developmental Disabilities allowed a Home Health Provider to continue serving an individual (S.F.) in the Department’s care following a change of the Residential Service Provider. Southern Resources Consultants (SRC) was the terminated Residential Service Provider, and Mays ran the home and cared for S.F. for both SRC and its successor. SRC filed suit for breach of confidentiality and non-compete provisions in its contract with Mays and for protection of trade secrets.

The trial court entered temporary injunctive relief directing Mays not to possess or distribute SRC’s confidential information, to stop providing services to S.F., and not to possess or distribute S.F.’s personal information. Mays appealed from the entry of the injunction, and the Supreme Court reversed the first portion of the injunction and vacated the other portions as moot. With respect to SRC’s confidential information, the Court found that Mays had already returned it before the injunction was entered, so the trial court’s direction to her to do it was a nullity. In addition, the Non-Compete provision in the parties’ contract had expired by its terms, so the rest of the injunction was moot. The Court remanded the case for further proceedings.

Released Opinions

May 25, 2016

On May 23, 2016, the Supreme Court of Georgia released 16 opinions, of which two are within the scope of our coverage. Summaries of the opinions and cases are set forth below.

S15G1205 Fulton County Board of Education, et al. v. Thomas

In a unanimous opinion by Justice Hunstein, the Supreme Court of Georgia held that a claimant who sustained an employment-related injury was entitled to compensation calculated to include work in the same line of employment for another employer during the statutory 13-week time period. The Court affirmed the judgment of the Court of Appeals, explaining “[u]nder the circumstances presented here, we agree with the Court of Appeals’ conclusion….”

Thomas was a school bus driver, who also drove new school buses from Atlanta to other parts of the country during the summer of 2011. She was injured shortly after the next school year started. The question was how to calculate her “average weekly wage” for workers’ compensation purposes: Does it include the money she earned driving buses for another employer during the summer?

O.G.G.A §34-9-260(1) provides that the average weekly wage includes money earned “in the employment for which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks preceding the injury….” Here, Foster worked a bus driver for two employers sequentially during that 13 week period. While the Court of Appeals looked at the issue under its “concurrent similar employment” doctrine, the Supreme Court started from the premise that the statute used the word “employment,” not “employer.” It follows that the nature of the work controls.

The Supreme Court noted, “[T]he reported cases have, until now, uniformly involved circumstances in which the claimant was simultaneously employed with multiple employers at the time the injury occurred.” (Emphasis in original) It explained that the word “concurrent” does not appear in the statute, however, so there is “no basis in the text of the statute for requiring such simultaneity as an absolute condition to the doctrine’s application.” Instead, only “a ‘concurrence’ of similar jobs within the 13-week period” is required.

S15G1780 Georgia Department of Labor v. RTT Associates, Inc.

In a unanimous opinion by Justice Benham, the Supreme Court of Georgia held that a state agency’s actions in the course of administering a contract did not waive the State’s sovereign immunity. The Court reversed the decision of the Georgia Court of Appeals, which found that sovereign immunity had been waived by the agency’s conduct.

The 1983 Georgia Constitution waives the State’s sovereign immunity for “any action ex contractu for breach of any written contract … entered into by the state or its departments or agencies.” Ga. Const. of 1983, Art I, Sec. II, Par. IX (c). The Department of Labor and RTT entered into such a written contract that contained, among other things, provisions requiring that changes be in writing and  integrating all but RTT did not perform its obligations before the contract time expired. The Department did not terminate the contract immediately, but it ultimately did so and claimed against RTT’s performance bond. RTT filed suit for breach of contract, the trial court ruled in favor of the Department, and the Court of Appeals reversed.

The Supreme Court held that the Department’s conduct did not result in a waiver of sovereign immunity: “Even if the parties’ conduct after the expiration of the contract could be found to demonstrate an agreement between the parties to perform under the original contract, as a matter of law neither that conduct nor the internal documents created by DOL after the contract expired establishes a written contract to do so. Without a written contract, the state’s sovereign immunity from a contract action is not waived.”

The Court noted that the Court of Appeals erred in applying contractual cases involving private parties to state contracts. Insofar as a written contract is required for a waiver of sovereign immunity, so is a written contract modification. In addition, the Court disapproved or distinguished other cases on which RTT relied.

The Court explained that sovereign immunity and the constitutional requirement that state contracts and their modifications be in writing was designed to protect the state’s finances and to preclude the state from being assessed or exposed to unanticipated damages. As a result, the conduct of state employees, particularly after the expiration of the contract term, was not a basis for finding a waiver of the state’s sovereign immunity.

Released Opinions

May 10, 2016

On May 9, 2016, the Supreme Court of Georgia issued nine opinions, of which two are within the scope of our coverage. Summaries of the opinions and cases are set forth below.

S16A0177 Williford v. Brown

Although this case involves the application of family law, the Supreme Court’s decision also addresses a question of appellate jurisdiction. In a unanimous opinion by Justice Nahmias, the Supreme Court of Georgia held that it, rather than the Court of Appeals, should decide whether the “novel equitable remedy” sought was available under Georgia law. Holding that such relief is not available, the Court affirmed the trial court’s ruling on the merits. The Court observed, however, that the claimant expressly asked the trial court to craft a remedy using its equitable powers; that meant that the case came within the Court’s traditional equitable jurisdiction.

Significantly, the Court noted that the newly enacted Appellate Jurisdiction Reform Act of 2016 changes its traditional equitable jurisdiction. It explained that the Act vests the Court of Appeals with “appellate jurisdiction over ‘[a]ll equity cases, except those cases concerning proceedings in which a sentence of death was imposed or could be imposed and those cases concerning the execution of a sentence of death, as well as other categories of civil cases that currently come directly to this Court.” The Supreme Court will review such cases “only by writ of certiorari or if the Court of Appeals is evenly divided or certifies a question here.” As a result, the Act will likely cause “the need for Georgia’s appellate courts and appellate litigants to engage in many intricate jurisdictional analyses” of the sort presented in this case to “dissipate as of January 1, 2017.”

S16A0294 GeorgiaCarry.Org, et al. v. Atlanta Botanical Garden, Inc.

In a unanimous opinion by Justice Hunstein, the Supreme Court of Georgia held that the trial court improperly dismissed claims for declaratory and injunctive relief brought by the holder of a Georgia weapons carry license unhappy with the policy of the Botanical Garden.

Phillip Evans twice wore a handgun in a waistband holster to the Garden, but was stopped the second time and eventually escorted from the premises. He filed suit contending that O.C.G.A. § 16-11-27(c) authorizes him—and others similarly situated—to carry a weapon in the Garden. He sought declaratory relief to the effect that the Garden could not prohibit him from carrying a weapon and injunctive relief prohibiting the Garden from banning the carrying of weapons by licensees. The trial court dismissed the action, but the Supreme Court reversed in part and affirmed in part.

The Supreme Court rejected the contention that declaratory relief was inappropriate simply because the claim touched on a question of criminal law. The claim did not come from one whose criminal conduct was complete, who had been charged, or who had been convicted. In addition, it was not based on speculation because the Garden had already enforced its ban against Evans. Finally, the declaratory judgment claim would not require the Garden to act in a particular way. The practical effect of the claim was to seek a declaration of rights to the effect that Evens and other licensees may carry their weapons in the Garden.

The Supreme Court also held that a claim for an injunction that would prohibit the Garden from banning licensed individuals from carrying weapons within it was properly stated. Injunctive relief would not lie to prevent the Garden, a private party, from causing an arrest or prosecution of someone like Evans.

Released Opinions

April 27, 2016

On Tuesday, April 26, 2016, the Supreme Court of Georgia issued 13 opinions, of which three are within the scope of our coverage. Summaries of the opinions and cases are set forth below.

S15G1206 Kliesrath, et al. v. Davis, et al.

In a unanimous opinion by Chief Justice Thompson, the Supreme Court of Georgia vacated the judgment of the Georgia Court of Appeals, holding that it lacked jurisdiction to consider a direct appeal arising from the trial court’s denial of summary judgment to police officers asserting defenses of official and qualified immunity. As the court explained, in its March 25, 2016 decision in Rivera v. Washington, it concluded that any such appeals cannot proceed via direct appeal because they are interlocutory. Instead, any appeal from such a ruling must go through the interlocutory procedure of O.C.G.A.              § 5-6-34(b). Accordingly, the Court of Appeals should have dismissed the appeal.

S15G1885 McKinney, et al. v Fuciarelli

In a unanimous opinion by Chief Justice Thompson, the Supreme Court reversed the decision of the Georgia Court of Appeals, holding that a taxpayer retaliation lawsuit brought under the Georgia Taxpayer Protection Against False Claims Act, O.C.G.A.             §§ 23-3-122(b)(1) of which states that a civil action may be brought “upon written approval by the Attorney General,” requires such approval.

Fuciarelli was dismissed from his positions as assistant vice president for research and dean of the graduate school at Valdosta State University after he criticized the school for failing to comply with “laws, rules and regulations.” After the Board of Regents affirmed the University’s decision, Fuciarelli filed suit against University officials in their individual and official capacities under, among other things, the Taxpayer Protection Act. The trial court dismissed the Taxpayer Protection Act individual capacity claim on the ground that Fuciarelli did not obtain the Attorney General’s approval before filing suit, but the Court of Appeals reversed.

The Supreme Court reversed, concluding that the words “this article” apply to all claims under the Act, even those personal to the claimant, like Fucianelli’s. Accordingly, Fucianelli’s claim required Attorney General approval. The court rejected the contention that it would be absurd to read the statute that way. Whether the Attorney General should be put in the position of approving or disapproving an action against the State was a policy question for the Legislature to answer. Instead of answering that policy question, the court’s ruling “simply requires deference to the legislative prerogative of the General Assembly and adherence to the plain language of the TPAFCA.”

S16A0559 Clark v. Deal, et al. (and vice versa)

In an opinion by Justice Melton, the Supreme Court of Georgia held that Governor Deal had the right to appoint three new judges to the Georgia Court of Appeals and rejected the contention that the seats had to be filled by general election. When the General Assembly created the new seats, it provided that the term of the new judgeships would run from “January 1, 2016, and continuing through December 31, 2018, and until their successors are elected and qualified.” The court noted that, because the judges had already been sworn in, the only viable claim was one in quo warranto, but that claim failed.

While other portions of the 1983 Georgia Constitution call for the election of Court of Appeals judges, Art. VI, Sec. VII, Par. III of that Constitution “expressly” authorizes the filling of vacancies by appointment. The “appropriate rules of construction and the historical record” indicate that newly created seats count as a vacancy. Under the ordinary meaning of vacancy as “a public office without an incumbent,” the newly created seats were vacant. The court rejected the contention that only the vacancies listed in OCGA § 54-5-1 can be filled by appointment, reasoning that the drafters of the 1983 Constitution “appear to have intended that the term ‘vacancy’ be interpreted in a broad sense, as they gave the term no limitations.”

With respect to the historical record, when the Court of Appeals was expanded from six to seven members in 1960, and from seven to nine members in 1961, Governor Vandiver filled the newly created seats by appointment. Newly created seats were also filled by appointment when created in 1996 and, again, in 1999.

Justice Benham dissented, reasoning that “[a] newly created position cannot logically have an unexpired term that can be filled by appointment.” Accordingly, he believed that the seats should be filed through a general election.

Released Opinions

April 1, 2016

On March 25, the Supreme Court of Georgia issued six opinions, of which two are within the scope of our coverage. Summaries of the cases and opinions are set forth below.

S15G0887 Rivera v. Washington

S15G1092 Forsyth County v. Appelrouth, et al.

In a unanimous opinion by Presiding Justice Hines, the Supreme Court of Georgia held that a direct appeal from a trial court’s denial of a motion to dismiss on sovereign, qualified, or quasi-judicial grounds is not available. Instead, it reaffirmed the rule that the proper way to obtain appellate review of such a trial court ruling is to ask the trial court for a certificate of immediate review then file an application for interlocutory review. In these consolidated cases, the Court affirmed the decisions (Rivera: Appelrouth) of the Georgia Court of Appeals, but found them to be based on “flawed analyses.”

In Rivera’s case, Washington sued Rivera and her administrative assistant for issuing a warrant for failure to pay a fine that he already had paid. The trial court denied their motion to dismiss on sovereign and quasi-judicial grounds. Rather than seek an application for interlocutory appeal, Washington filed a direct appeal under the collateral order doctrine, relying on Board of Regents &c. of Ga. v. Canas, 295 Ga. App. 505, 672 S.E. 2d 471 (2009).

In Appelrouth’s case, Appelrouth sued Forsyth County and a neighboring landowner alleging that they were responsible for damage to his property. The neighboring landowner cross-claimed against the County, which sought to dismiss both the suit and cross-claim on sovereign immunity grounds. The trial court denied the County’s motion, and the County filed a direct appeal, relying on Canas just like Rivera had done.

In both cases, the Court of Appeals dismissed the appeal, reasoning that, because the trial court did not make a conclusive determination on the claim of immunity, Canas did not apply.

The Georgia Supreme Court noted that direct appeals are authorized only from a trial court’s final judgment, which means “the case is no longer pending in the court below.” Sosniak v. State, 292 Ga. 35, 36, 734 S.E. 2d 362(2012). The denial of a motion to dismiss on immunity grounds means that the case remains pending in the trial court.  Accordingly, unless an exception applies, a direct appeal is not authorized.

The collateral order doctrine does not provide the basis for a direct appeal from rulings like these. The Court explained,

“[T]he collateral order doctrine reflects a practical rather than a

technical construction of [the] statutes [governing appellate

jurisdiction], one that recognizes that a very small class of

interlocutory rulings are effectively final in that they finally

determine claims of right separable from, and collateral to,

rights asserted in the action , too important to be denied review and

too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated.”

(Quoting State v. Cash, 298 Ga. 90, 92-93, 799 S.E. 2d 603 (2015)).

The Supreme Court noted that it had “specifically declined” to follow the federal rule allowing for direct appeals from rulings denying motions to dismiss based on qualified immunity. See Turner v. Giles, 264 Ga. 812, 450 S.E. 2d 421 (1994). The Court of Appeals’ decision in Canas, which was premised on the collateral order doctrine, reflected federal practice. The Supreme Court overruled Canas  “to the extent that it applied the collateral order doctrine to the immunity claim therein” as well as a multitude of other decisions of the Court of Appeals that allowed direct appeals under the collateral order doctrine for claims of sovereign, official, qualified, or other immunity.

For cases involving immunity claims, the Court explained that, in Turner v. Giles, it had recommended that “except in clear cases, the trial courts issue a certificate of immediate appealability under OCGA 5-6-34(b) for interlocutory orders denying dismissal or judgment on the basis of qualified immunity.” 264 Ga. at 813-14.  It reiterated, “[C]ourts should address motions on immunity issues as early as practicable and, if there is any substantial question,  permit an interlocutory appeal to proceed.”

S15G1183 Georgia Dep’t of Behavioral Health and Developmental Disabilities, et al. v. United Cerebral Palsy of Georgia, Inc., et al.

In a unanimous opinion by Justice Nahmias, the Supreme Court of Georgia held that providers and recipients of Medicaid services dissatisfied with their reimbursement rates and the services available had to exhaust the agency administrative review process before filing suit. It reversed the decision of the Georgia Court of Appeals, which held that an alleged lack of notice relieved the plaintiff providers and recipients of their obligation to follow the administrative review process.

Rather than following the administrative review process, providers and recipients of Medicaid services filed suit claiming that the agency failed to follow the required procedure before reducing the reimbursement rates paid to providers and limiting the services available to the recipients. The trial court dismissed the claims for failure to exhaust administrative remedies, but the Court of Appeals reversed.

The Supreme Court observed that the General Assembly saw the need for and provided “a robust administrative review process to address complaints — which the statute refers to as ‘appeals’ — by providers and recipients of Medicaid services, including disputes concerning reimbursement rates and service limitations.” That process provides for a hearing before an administrative law judge, followed by an appeal to the Commissioner of Community Health. It further allows for judicial review, “but only if the aggrieved party first ‘exhausts all the administrative remedies provided.”

The Supreme Court observed that the failure to exhaust administrative processes “ordinarily precludes judicial review.” That administrative process has benefits of its own. It protects the agency’s authority and allows it to correct its own mistakes. In addition, when judicial review begins, it does so with the benefit of a complete administrative record informed by agency expertise. Finally, the administrative process might resolve the claims.

“This Court has never recognized a wholesale exception to the exhaustion doctrine for alleged procedural errors by an administrative agency.” Instead, “generally speaking, procedural issues are subject to the exhaustion requirement just like substantive issues.”

Finally, after noting that the Court of Appeals relied on, among other things, Chatham County Bd. Of Tax Assessors v. Emmoth, 278 Ga. 144, 598 S.E. 2d 595 (2004), the Supreme Court disproved of any reading of Emmoth “suggest[ing] that a plaintiff need not exhaust administrative remedies whenever an administrative body has given her a notice of its decision without including statutorily required language regarding how to seek administrative review of that decision.”