Cert Petitions: April 1

Granted

The supreme Court granted cert in three cases today. 

The first involves whether a trial court may exclude an expert witness from testifying solely because they were identified after the deadline set by the scheduling order and, if not, what factors the court should consider in deciding whether the exclude the witness.  (See Lee v. Smith)

The second asks whether punitive damages are available in a suit for abusive litigation. (See Coen v. Aptean)

The third asks whether the State is required under to show lack of consent in order to prove an aggravated sexual battery against an alleged victim under the age of 16, and, if so, how to properly apply the "pipeline rule" of appellate review where defense counsel did not contemporaneously object to the relevant jury instructions at trial. (See State v. Williams).


S18C1549. Lee v. Smith (A18A0739)

1. May a trial court exclude an expert witness solely because the witness was identified after the deadline set in a scheduling, discovery, and/or case management order? 

2. If not, what factors should a trial court consider when exercising its discretion whether to exclude an expert witness who was identified after the deadline set in a scheduling, discovery, and/or case management order? 

Background 

After a motor vehicle accident, David A. Smith II sued Dongue Lee for negligence. A jury  returned a $2,000,000 verdict for Smith.

On the last day for identifying experts, Smith had substituted his sports agent to testify about Smith's lost earning potential due to the accident. After deposing the agent, Lee identified a rebuttal witness he intended to call. The trial court excluded the proferred witness because he had not been identified within the time permitted by the scheduling.

Lee argues the trial court improperly excluded the witness, since   he did not learn about Smith's lost earnings claim until Smith identified his agent as a witness (on the last day experts could be identified under the scheduling order). Therefore, according to Lee, his identification of a rebuttal expert eight days after deposing Smith's expert (more than a month after the last day for identifying experts under the scheduling order) should have been allowed. 

The court of appeals disagreed. Whether to allow expert testimony is within the discretion of the trial court, particularly in matters concerning violation of a scheduling order. Because there was evidence in the record that smith had identified experts who would testify regarding the impact of his injuries on his athletic career, and answered requests for production stating that he “might present evidence at the time of trial on this of diminished future wages or earning capacity," Lee was on notice of the potential need to identify a rebuttal expert. Thus, the Court of Appeals held, the trial court did not abuse its discretion.

Judge Ray dissented, arguing that "[w]hile adherence to a scheduling order certainly is important for trial speed and efficiency," in these circumstances "blind adherence cannot trump our consistent and longstanding posture in favor of the admission of relevant evidence."

The case has been added to the August 2019 oral argument calendar.

Referenced:

• See Lee v. Smith, 346 Ga.App. 694 (2018).
• Order Granting Certiorari, https://www.gasupreme.us/wp-content/uploads/2019/04/s18c1549.pdf 

S18C1638. Coen v. Aptean, Inc et al. (A18A0522)

1. Does the language "all damages allowed by law" in OCGA § 51-7-83 (a) authorize an award of punitive damages in a statutory claim for abusive litigation?

Background

Coen involves a breach of contract claim filed against Coen's former employer, CDC Software Corporation.  Coen sought severance payments allegedly owed to him as part of his discharge from the company (the “Contract Lawsuit”). In that case, the the trial court granted partial summary judgment to Coen on several counts of his complaint. The trial court also entered an order granting attorney fees and expenses to Coen against  Aptean, CDC Software and its law firm, Sutherland Asbill & Brennan LLP n/k/a Eversheds Sutherland (the “Sutherland Firm”). The trial court found that the defendants had “adopted a strategy of litigation by attrition” and had “vigorously litigated baseless defenses in the hopes of litigating [Coen], an individual with very limited resources, to the point where he could no longer afford to continue without settling for a lesser sum.” 

Coen filed the current suit based on the abusive litigation findings in the contract suit, seeking damages for injury to his peace, happiness, and feelings, as well as punitive damages. Notably, he did not seek special damages, including for the attorney fees and expenses he had incurred in the Contract Lawsuit, because the trial court in the Contract suit had already awarded those fees and expenses.

The trial court dismissed the complaint because it lacked allegations of special damages sustained by Coen, and because it concluded punitive damages were not available. 

The Court of Appeals held that a plaintiff pursuing a statutory abusive litigation claim is not required to plead special damages, and instead can elect to seek general damages for mental distress under OCGA § 51-12-6 for malicious, wilful, or wanton misconduct in the underlying litigation. The Court of Appeals agreed with the trial court, however, that a plaintiff cannot recover punitive damages for a statutory abusive litigation claim. See Sharp v. Greer, Klosik & Daugherty, 256 Ga. App. 370, 373 (6), 568 S.E.2d 503 (2002) (establishing that punitive damages are not available for abusive litigation claims). The Court relied on two principle reasons:  First, “[t]he abusive litigation tort set forth in OCGA § 51–7–80 et seq. is in derogation of the common law . . .  [and therefore] must be strictly limited to the meaning of the language used.” See id. Second, at common law, “[p]unitive damages [were] excluded [from the recoverable damages for the tort of civil abuse of process], as the tort itself [was] designed as a deterrent. " See Snellings v. Shepherd, 229 Ga. App. 753 (1997); See also Yost v. Torok, 256 Ga. 92 (1986).

The case has been set for the August 2019 oral argument calendar.

Referenced

• OCGA § 51-12-5.1(b) ("Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression"); see also 5.1(c) (punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.").
• OCGA 51-7-83 ("A plaintiff who prevails in an action under this article shall be entitled to all damages allowed by law as proven by the evidence")
• Order Granting Certiorari (https://www.gasupreme.us/wp-content/uploads/2019/04/s18c1638.pdf)

S19C0005. The State v. Williams (A18A0279)


(1) Is the State required under OCGA § 16-6-22.2 to show lack of consent in order to prove an aggravated sexual battery against an alleged victim under the age of 16?

(2) If so, did the Court of Appeals err in applying the “pipeline rule” to reverse Williams’s conviction for aggravated sexual battery?

Background 

The underlying case involves a criminal conviction for aggravated sexual battery, in which Williams contends (relying on a Georgia Supreme Court dealing with simple sexual battery) the trial court should not have instructed the jury that a victim under the age of 16 is legally incapable of consenting to sexual contact. A more detailed summary of the facts is available at 347 Ga.App. 6-8 (2018).

On the first issue, it appears the Court's concern might be that the Court of Appeals misapplied the rationale of the 2015 decision Watson v. State, 297 Ga. 718 (2015). Watson held that a trial court should not instruct the jury in a sexual battery class that children under 16 are legally incapable of giving consent to the given contact, since "[t]he offense at issue here . . . despite its denomination as 'sexual' battery—does not require any sexual contact at all. Rather . . . it involves non-consensual, intentional physical contact with a victim's intimate body parts. That an individual younger than 16 is legally incapable of consenting to sexual contact does not necessarily mean that such individual is legally incapable of consenting to physical contact with her intimate body parts." Thus, while an instruction on capacity to consent "was on its face an accurate statement of the law" it was "misleading and thus erroneous" because it effectively relieved the State of its burden to prove an essential element of the crime of sexual battery. See id.

By contrast, “[a] person commits the offense of aggravate[d] sexual battery when one intentionally penetrates with a foreign object the sexual organ of another person without the consent of that person.” See OCGA § 16-6-22.2 (b). Thus, the Court's holding in Watson arguably does not apply to cases of aggravated sexual battery, since the definition of the crime facially would seem to require the type of sexual contact to which minors cannot consent. 

The Court of Appeals addressed this argument in a footnote to Williams, stating "[w]e certainly accept that this is true in most situations, but not always." For example, a gynecological examination . . . [or] an anal examination" may involve penetration, but "[n]either of these situations would be sexual in nature." See id. at 10, n.3; see also Duncan, 342 Ga. App. 530, 541, n.17 (2017).

As to the second question, the "pipeline" rule deals with cases where decisional law governinng a case changes while the case is still pending. See See Freeman v. State, 269 Ga. 337, 339 (1) (C), (496 S.E.2d 716) (1998) (defining the appellate pipeline as including cases poised “between conviction and direct appeal”). The Georgia Supreme Court adopted the rule in Taylor v. State,  262 Ga. 584 (1992), holding that "in order to ensure that similarly situated defendants are treated similarly and to maintain the integrity of the judicial process while still providing finality, we deem it appropriate to adopt the 'pipeline' approach, that is, that a new rule of criminal procedure . . . will be applied to all cases then on direct review or not yet final."

Importantly, however, the Court in Taylor said "[a]pplication of the new rule to a pending case will, of course, depend on the preservation of the issue for appellate review." While Williams did not raise the issue during trial, or even in the motion for new trial (which was filed after Watson was decided), the Court of Appeals reasoned that although Williams did not raise a contemporaneous objection, the State's caselaw suggesting plain error should aply involved situations where the defendant had the option to reserve the right to object to jury instructions on appeal. As of July, 2007, that option is no longer available, and parties must raise specific objections to the jury instructions contemporaneously, or they are waived for purposes of appeal. See OCGA § 17-8-58 (provided that the failure to raise a specific objection to jury instructions precludes appellate review except in cases of plain error). The Court of Appeals reasoned that under this new regime, if a jury instruction is correct when given, a defendant cannot raise a valid, specific, contemporaneous objection to it.  

Thus, the Court concluded, a defendant's failure to raise an objection unsupported by law at the time it is given should not constitute waiver of the right to challenge that provision, if it becomes legally incorrect while the pending case is in the appellate pipeline. The Court also asserted that Williams' case involved a substantive change in the law, suggesting that the decision may apply retroactively regardless of whether defense counsel objected at the time. see Luke v. Battle, 275 Ga. 370, 370, 565 S.E.2d 816 (2002)

The case has been set for the August 2019 oral argument calendar

Referenced

• Order Granting Certiorari, (https://www.gasupreme.us/wp-content/uploads/2019/04/s19c0005.pdf)

Denied

S18C0191. SZOPINSKI v. THE STATE (A17A1198)
S18C1508. MCGEE v. NEFF ET AL. (A18A0720)
S18C1578. BARTENFELD v. CHICK-FIL-A, INC. et al. (A18A0042, A18A0043)
S18C1585. REYNOLDS et al. v. THE DIXIE GROUP, INC. (A18D0497)
S18C1606. CANTERBURY FARMS, LLC et al. v. GILBERT et al. (A18A0241, A18A0242, A18A0243)
S18C1607. WILLIAMS v. THE STATE (A18A0279)
S18C1617. JOHNSON v. THE STATE (A18A1244)
S18C1618. GILBERT v. THE STATE (A18A0001)
S18C1619. JOHNSON v. THE STATE (A18A1246)
S18C1634. THOMPSON v. NEWMAN (A18A0754)
S18C1635. BLACKWELL v. THE STATE ((A18A0696)
S18C1637. SUTHERLAND ASBILL & BRENNAN, LLP et al. v. COEN (A18A0522)
S18C1639. LAWRENCE-HARDY v. COEN et al. (A18A0522)
S18C1640. HORNE v. THE STATE (A18A2065)
S18C1641. CRUZ v. THE STATE (A18A0203)
S19C0006. THE STATE v. SAUNDERS (A18A0512)
S19C0011. SMITH v. THE STATE (A18A0464)
S19C0025. SMITH et al. v. MURPHY (A18I0243)
S19C0051. MACK v. THE STATE (A18A0875)
S19C0064. WALKER v. THE STATE (A18A0847)
S19C0079. PATTERSON v. THE STATE (A18A0984)
S19C0088. JONES v. THE STATE (A19A0023)
S19C0111. THOMPSON v. THE STATE (A18A1254)
S19C0140. BERTARIONI v. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT (A19A0044)
S19C0453. ROSSER v. CLYATT et al. (A18A0843)