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Released Opinions

October 18, 2016

On October 17, 2016, the Supreme Court of Georgia issued 19 opinions, of which two are within the scope of our coverage. Summaries of the cases and decisions are set forth below.

S16A1106 Nemchik, et al. v. Riggs

In a unanimous opinion by Justice Nahmias, with Presiding Justice Hines not participating, the Supreme Court of Georgia upheld a trial court’s injunction prohibiting the parties to a lawsuit who disagreed over ownership of real property from entering that property during the pendency of the lawsuit.

The dispute concerned the Nemchiks’ claim of an easement across a wooded portion of adjoining property owned by Riggs. Riggs plans to develop the property, but the Nemchiks started cutting trees on it and posted notices. That action triggered a lawsuit from Riggs.

The Supreme Court rejected the Nemchiks’ contention that Riggs failed to show a substantial likelihood of success and that the trial court did not properly balance the equities before entering the injunction. It noted that, at the injunction hearing, the Nemchiks presented “no evidence … showing that they have a lawful easement” across the disputed property. The court also noted that the injunction preserved the status quo by limiting access by both parties.

The Supreme Court also noted that the trial court entered an order declaring that the Nemchiks do not have the claimed easement and certified that order for immediate appeal. It transferred the interlocutory appeal to the Georgia Court of Appeals because easement disputes are not within the Supreme Court’s jurisdiction. That case remains pending in the Court of Appeals.

S16A1182 Tyrones v. Tyrones

In a unanimous opinion by Justice Hunstein, the Supreme Court of Georgia rejected a challenge to a real property partitioning sale. It noted that an inadequate price alone is not a sufficient reason for setting aside a sale under power. Giordana v. Stubbs, 228 Ga. 75, 79, 184 SE 2d 165 (1971). Here’s there were other “circumstance[s] that might have contributed to the low winning bid.”

Released Opinions

October 18, 2016

On October 3, 2016, the Supreme Court of Georgia issued 26 opinions, of which three are within the scope of our coverage. Summaries of the cases and decisions are set forth below.

S16G0490 Pandora Franchising, LLC v. Kingdom Retail Group, LLC

In a unanimous opinion by Justice Benham, the Supreme Court of Georgia held that, in a lawsuit where the basis for venue is an allegation that the cause of action originated in the county where the claim was filed, only a company with its worldwide principal place of business has the right to remove the lawsuit to the county where that principal place of business is located. The Court affirmed the decision of the Georgia Court of Appeals.

The underlying case is a dispute over the proposed acquisition of franchises. Kingdom Retail group filed suit in Thomas County, asserting that the claim arose there. Pandora, which has its principal place of business in Maryland, removed the complaint to Gwinnett County, where Pandora has its principal place of business in Georgia. The trial court granted the request to remove the case to Gwinnett County, but the Court of Appeals reversed.

Drawing on the US Supreme Court’s decision in Hertz Corp. v. Friend, the Supreme Court reasoned that the removal statute’s reference to a company’s “principal place of business” means its worldwide “nerve center.” It explained, “[W]e conclude that for purposes of determining the right to remove to another county pursuant to subsection (b)(4) of the corporate venue statute, ‘principal place of business’ refers to only one single place. If that place is a county in Georgia, a corporate defendant sued for tort in a complaint asserting jurisdiction under subsection (b)(4) has a right to remove to a court in that county; if that place is not in Georgia, the right to remove is not applicable.”

S16A0689 Fulton County v. City of Atlanta

In a unanimous opinion by Justice Blackwell, the Supreme Court of Georgia held that a lawsuit filed by the City did not amount to a justiciable controversy and directed that it be dismissed. It noted that its action was warranted even though justiciability was not raised on appeal because justiciability relates to the court’s jurisdiction. The Court vacated the decision of the trial court and remanded with directions to dismiss the case.

The underlying lawsuit involved a proposed annexation of property by the City in the Fulton County Industrial District, which appeared to be barred by a constitutional amendment. The City filed suit attacking the provenance of the amendment and asking for a declaratory judgment that the proposed annexation was lawful.

The Supreme Court noted, “[Q]uestions about merely proposed legislation present no justiciable controversy, and judicial attempts to resolve such questions amount to advisory opinions.” The City’s proposed annexation “would amount to a legislative act, both in substance and in form.” Given that the City had not yet enacted an ordinance to carry out the annexation, any action was only proposed. Likewise, the effect of the constitutional amendment mattered “only because of [its] potential impact upon proposed legislation,” so it did not create a justiciable controversy either.

S16A1257 GeorgiaCarry.Org, Inc. v. Allen, et al.

In a unanimous opinion by Justice Melton, the Supreme Court of Georgia held that GeorgiaCarry lacked either individual standing or associational standing on behalf of its members to pursue a claim of quo warranto against the members of the Georgia Code Revision Committee. It affirmed the judgment of the trial court.

Quo warranto “inquire[s] into the right of any person to any public office the duties of which he is in fact discharging.” OCGA § 9-6-60. A quo warranto claim may be brought by someone claiming the office or by someone “interested therein.” Id. “Where the purpose is to declare the public office vacant, any citizen and taxpayer may file a proceeding in the nature of quo warranto.” Hathcock v. McGouirk, 119 Ga. 973, 978, 47 SE 563 (1904).

The Supreme Court held that a nonprofit corporation like GeorgiaCarry was not a “person” within the meaning of the quo warranto statute. It reasoned that “as only individual natural persons can hold or claim to hold a public office, only individual natural persons can be otherwise interested therein.”

With respect to associational standing, the Supreme Court noted that an association can bring suit on behalf of its members when (1) the members themselves would otherwise have standing; (2) the interests at issue are germane to the organization’s purpose; and (3) the participation of individual members was not required.  In this case, the members themselves could pursue a quo warranto claim. In addition, because the claim was not a claim to occupy it, the participation of the members was not required.

Nonetheless, GeorgiaCarry lacked associational standing because the suit was not germane to its purpose. The Commission is tasked with working toward the “revision, codification, or recodification” of the Georgia Code and had no role in changing the substance of the laws passed by the General Assembly. GeorgiaCarry’s concern that bills in which it had an interest had not been codified correctly was not part of its stated purpose, and there was no testimony to show that the Commission’s work “has had any impact, let alone a negative one” on GeorgiaCarry’s stated corporate purpose.

Released Opinions

October 6, 2016

On September 12, 2016, the Supreme Court of Georgia issued opinions in 32 cases, four of which are within the scope of our coverage.

S16A0691 Heron Lake II Apartments, L.P. v. Lowndes County Board of Tax Assessors

In a unanimous decision by Presiding Justice Hines, the Supreme Court of Georgia held that OCGA § 45-5-2(3)(B.1), which excludes low-income housing income tax credits from consideration in the assessment of ad valorem taxes, is unconstitutional because it violates the tax uniformity provision in the 1983 Georgia Constitution. It concluded, “[I]nasmuch as OCGA § 45-5-2(3)(B.1) exempts these tax credits from consideration in determining the fair market value of the properties at issue, the statute grants special treatment for ad valorem tax purposes and creates a subclass of tangible property other than as permitted by the State Constitution.” The Supreme Court affirmed the judgment of the trial court.

In pertinent part, the Georgia Constitution mandates, “[A]ll taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Ga. Const. of 1983, Art. VII, Sec. 1, Para. 3(a). It further splits taxable property into “tangible property and one or more classes of intangible property including money.” Id., Para. 3(b)(1).  The court has previously concluded that “tangible property” is a single class of property which includes both real and personal property. Blevins v. Dade Cty. Bd. of Tax Assessors, 288 Ga. 113, 702 SE 2d 145 (2010). In the light of the Georgia Constitution’s identification of certain classes of tangible property, “the General Assembly has no authority to establish different classes or subclasses of tangible property other than as fixed” in the Constitution. Id., 288 Ga. at  114.

The tax credits in question are granted for a period of ten years in exchange for the property owners’ agreeing to lease their rental units to eligible low-income tenants at below-market rates set by the Georgia Department of Community Affairs for periods of 30 years or more. While the credits are in place, the owner’s ability to sell or exchange the property is limited. The owner must get the approval of the Department, and the new owner must agree to assume the requirements and restrictions contained in the governing covenants.

The Supreme Court rejected the property owners’ contention that the tax credits were intangible personal property that can constitutionally be assessed and taxed on a different basis from real estate. It explained, “[T]he very existence of tax credits is inextricably bound with the ownership of real estate.”

Pointing approvingly to the reasoning in the decision of the Georgia Court of Appeals in Pine Point Housing, L.P. v. Lowndes County Board of Tax Assessors, 254 Ga. App. 197, 561 SE 2d 860 (2002), the court noted that real property is assessed at its fair market value, which is the price reached at arms-length by a knowledgeable buyer and a willing seller. That price would include both the tax credits and the restrictive covenants that travel with them. As the Court of Appeals noted, when the property is sold, the tax credits are part of what is conveyed. The Supreme Court rejected the suggestion that the tax credits are like goodwill, another intangible:  “Even if tax credits, considered artificially in isolation, are intangible in nature, they do not, in fact, exist in isolation – they are wholly dependent upon and are not viable apart from the real estate giving rise to them.”

S16A0682 Chatham County, et al. v. Massey

In a unanimous decision by Justice Benham, the Supreme Court of Georgia held that Massey, the Clerk of the Chatham County Superior Court, is entitled to be paid not only the longevity and cos-of-living increases mandated by state law but also to county cost of living increases provided by local legislation. In so doing, it rejected the County’s argument that the local law was unconstitutional. The court affirmed the judgment of the trial court.

S16A1115 Webb v. Reeves, et al.

In a unanimous decision by Justice Blackwell, the Supreme Court of Georgia rejected a caveator’s challenge to the probate of a will. It concluded that the evidence was sufficient to demonstrate the testator’s capacity when the will was made.

As the Supreme Court noted, beginning with notices of appeal filed on or after January 1, 2017, “[a]ll cases involving wills” will be within the appellate jurisdiction of the Court of Appeals.

S16G0664 SunTrust Bank v. Venable

In a unanimous decision by Chief Justice Thompson, the Supreme Court of Georgia held that a deficiency action arising from the purchase of an automobile is subject to the four year statute of limitation applicable to the sale of goods, not the six year statute applicable to written contract actions. The court affirmed the decision of the Court of Appeals.

Venable bought a car and financed it through SunTrust. In November 2007, she stopped making payments. SunTrust repossessed the vehicle, and sold it at auction for less than the amount remaining on the loan, leaving a deficiency. It filed its deficiency action in October 2012.

The Supreme Court noted that contracts for the sale of goods include both contracts that involve only the sale of goods and contracts that “contain[] a blend of sale and non-sale elements ‘if the dominant purpose behind the contract reflects a sales transaction.’” It concluded that the evidence surrounding the transaction showed that the primary purpose of the contract was for the sale of a good. In addition, the deficiency action sought the recovery of the full purchase price. It rejected the contention that the retention of a security interest changed the nature of the contract from one for the sale of goods. It reasoned “the mere presence of a secured transaction aspect within a contract” does not “automatically” turn it the contract into a written contract subject to the six year statute of limitation.

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.