Innovative Images LLC v. Summerville
Innovative Images involves a legal malpractice action where the defendant law firm sought to compel arbitration. The trial court denied the motion to compel arbitration, holding the arbitration clause included in the engagement agreement was unenforceable. The trial court reasoned that legal ethics rules required lawyers to explain the advantages and disadvantages of arbitration to their client before entering into arbitration.
The Court of Appeals reversed, noting that even if the trial court had correctly interpretation the Georgia Rules of Professional Conduct, those rules could not be imported into the analysis of whether the arbitration agreement was unconscionable or violated public policy.
The Court asked the parties to address two questions:
(1) Under the Georgia Rules of Professional Conduct, is an attorney
required to fully apprise his or her client of the advantages and
disadvantages of arbitration before including a clause mandating
binding arbitration of legal malpractice claims in the parties’
engagement agreement?
(2) If so, does failing to so apprise a client render such a clause
unenforceable under Georgia law?
Justices Blackwell and Boggs dissented from the grant of certiorari.
The case will be assigned to the April 2020 oral argument calendar.
The Court of Appeals opinion is available here.
Mendez v. Moats et al
Mendez deals with the application of Georgia's ante litem notice (a requirement to sue state or county officials) to lawsuits against a county sheriff, in their official capacity, for negligent use of a motor vehicle.
Mendez sued the Polk County Sheriff (in his official capacity) and one of his deputies (in both her individual and official capacities) alleging that the Deputy's negligent use of her police vehicle had caused an accident in which he was injured.
As relevant here: the defendants moved to dismiss, arguing that Mendez's suit was barred because he had not properly send an ante-litem notice to the defendants. Mendez had, in fact, sent an ante-litem notice, but he sent it to the Chairman of the Polk County Board of Commissioners, rather than the sheriff himself. The defendants argued that because Mendez had not sent the notice to the Polk County Sheriff's department, his claims against both the Sheriff and the Deputy were barred.
The trial court denied the motion, but the en banc Court of Appeals reversed. The county provision of the ante litem notice provides "[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred." O.C.G.A. 36-11-1. Writing for the Court, Judge Dillard wrote that recent Court of Appeals decisions hold the ante-litem notice applies to both counties and sheriffs as legally distinct entities, and so service of the notice on one is not service on the other.
Writing for the dissenting Judges, Judge Doyle wrote that a suit against the Sheriff in his official capacity was essentially a suit against the county, and therefore the proper defendant had been served with the ante-litem notice.
The Court asked the parties to address two questions:
(1) Does OCGA § 36-11-1 apply to official-capacity claims
against a county sheriff for negligent use of a covered motor
vehicle?
(2) If so, does the proper presentment of such claims to the
county commission satisfy the claimant’s duty under the statute?
Justices Blackwell, Peterson, Warren, and Ellington dissented from the grant of certiorari.
The case will be added to the April 2020 oral argument calendar.
The Court of Appeals opinion is available here.
Atlanta Women Specialists et al LLC v. Trabue et al
Editor's note: Case summaries will be available soon
The Court asked the parties to address two questions:
(1) Did the Court of Appeals err in determining that the
plaintiffs’ vicarious liability claims against Atlanta Women’s
Specialists, LLC based on Dr. Simonsen’s conduct were sufficiently
pled?
(2) Did the Court of Appeals err in determining that, in order to
seek apportionment of damages with regard to the negligence of
Dr. Simonsen, the defendants were required to comply with OCGA
§ 51-12-33 (d)?
Angus v. Trabue et al
Editor's note: Case summaries will be available soon
The Court asked the parties to address two questions:
(1) Did the Court of Appeals err in determining that the
plaintiffs’ vicarious liability claims against Atlanta Women’s
Specialists, LLC based on Dr. Simonsen’s conduct were sufficiently
pled?
(2) Did the Court of Appeals err in determining that, in order to seek apportionment of damages with regard to the negligence of
Dr. Simonsen, the defendants were required to comply with OCGA
§ 51-12-33 (d)?
Grant, Vacate, and Remand
COBB HOSPITAL, INC. d/b/a WELLSTAR COBB HOSPITAL et al. v. DEPARTMENT OF COMMUNITY HEALTH et al.
The Court issued one grant, vacate, and remand today ("GVR" see See
Supreme Court Rule 50 (2); Scott v. State, 306 Ga. 507, 507 n.1 (832 SE2d 426)
(2019)).
In Cobb Hospital, Inc. v. Department of Community Health, 349 Ga. App. 452, 465 (2019). The Court of Appeals held that Cobb Hopsital and Kennestone hospital had failed to preserve their constitutional due process claims because those claims were not ruled on in the underlying administrative proceeding.
The Court granted the GVR, reasoning that so long as the party properly raises its constitutional claims
during the administrative process, the claims may later be raised in
and reviewed by the trial court - even if the administrative agency did not have authority to reach them.
Denied
S19C0441. BURKES v. THE STATE (A18A0821)
S19C1070. DANIELS v. THE STATE (A18A1865)
S19C1073. GRANT v. THE STATE (A18A1629)
S19C1077. HAWXHURST v. SAGE ATLANTA PROPERTIES, LTD (A18A2081)
S19C1080. SUNTRUST BANK v. BICKERSTAFF (A18A1519)
S19C1082. SCHAFFELD v. SCHAFFELD (A18A1947)
S19C1091. KUSHNER et al. v. LAYMAC (A18A1536)
S19C1093. KUMAR v. ROCHON et al.(A18A1574)
S19C1102. ALLI v. YORKSHIRE INVESTMENTS, LLC (A19D0255)
S19C1104. COLEMAN v. THE STATE (A18A1910)
S19C1106. SAMACA, LLC v. CELLAIRIS FRANCHISE, INC. et al. (A19D0372)
S20C0114. SAMACA, LLC v. CELLAIRIS FRANCHISE, INC. et al. (A19D0539)
S19C1119. COBBLE v. LOCKHART et al. (A19D0298)
S19C1132. COHEN et al. v. ROGERS (A16A1716, A16A1717)
S19C1144. DAN-FODIO et al. v. WILMINGTON SAVINGS FUND SOCIETY, FSB (A19A1233)
S19C1161. SMITH v. POLK et al. (A19D0410)
S19C1170. DUPREE et al. v. ROGERS (A16A1714, A16A1715)
S19C1175. MORGAN et al. v. MORGAN (A19A0239)
S19C1180. SPOTTSVILLE v. ADAMS et al. (A19D0359)
S19C1191. SOLOMON v. THE STATE (A19D0388)
S19C1199. KAPPELMEIER v. BRIDGE PROPERTY MANAGEMENT d/b/a PROMENADE AT BERKELEY (A19E0048)
S19C1220. YIM et al. v. CARR (A19A0716)
S19C1229. NAAR v. NAAR (A19A0560)
S19C1230. MARTIN v. THE STATE (A19A0025)
S19C1242. SIARAH ATLANTA HWY, LLC v. NEW ERA VENTURES, LLC (A19A0724, A19A0725)
S19C1243. BEACHAM v. BEACHAM (A19A1638)
S19C1246. WHITE v. FULTON COUNTY SCHOOL DISTRICT (A19A0773)
S19C1260. ULBRICH v. GA. COMPOSITE MEDICAL BOARD (A19D0361)
S19C1270. TRAMMEL et al. v. TRAMMEL (A19A0634)
S19C1272. JOHNSON v. THE STATE (A18A0990)
S19C1274. HAMLETT v. THE STATE (A19A0141)
S19C1275. HAMLETT v. THE STATE (A19A0142)
S19C1276. SMITH v. THE STATE (A19D0423)
S19C1289. DICKERSON v. BROWN (A19A1016)
S19C1292. HUSSAIN v. MARIETTA HALAL MEAT et al. (A19A0043)
S19C1297. KIMBROUGH v. THE STATE (A19A1482)
S19C1305. WHITE v. THE STATE (A19A0504)
S19C1317. GUERRERO-MOYA v. THE STATE (A19A0601)
S19C1318. GARRETT v. THE STATE (A19I0243)
S19C1320. THOMPSON v. THE STATE (A19A0416)
S19C1321. PORTER v. THE STATE (A19D0463)
S19C1322. STEPHENS v. THE STATE (A19D0470)
S19C1333. MARCUS v. MARCUS (A19A1958)
S19C1338. HARRISON v. THE STATE (A19A0196)
S19C1349. HILL et al. v. THE STATE (A19I0239)
S19C1356. NEAL v. DEPARTMENT OF COMMUNITY HEALTH et al. (A19A0227, A19A0369)
S19C1392. WEST v. THE LIGON FIRM, P.C. (A19D0488)
S19C1395. MURILLO v. THE STATE (A19A0879)
S19C1406. GRAY et al. v. HAMILTON STATE BANK (A19A0635)
S19C1425. PATTERSON v. THE STATE (A19A0085)
S19C1440. HUNT v. DEUTSCHE BANK TRUST COMPANY AMERICAS (A19E0061)
S19C1458. CABAN v. THE STATE (A19A0126)
S20C0152. HUNT v. DEUTSCHE BANK TRUST COMPANY (A19A2382)
S20C0182. BEACHAM v. BEACHAM (A19D0565)
S20C0407. BEACHAM v. BEACHAM (A20A0235)
Showing posts with label Cert Petitions. Show all posts
Showing posts with label Cert Petitions. Show all posts
Tuesday, December 24, 2019
Tuesday, November 19, 2019
Cert Petitions: November 18
Lalonde v. Taylor English Duma LLP et al
Lalonde is a malpractice action against the law firm of Taylor English Duma LLP. In essence, the claim alleged that one of the law firm's partners drafted a contract which permitted the majority owner of a company in which Lalonde owned a minority stake to unilaterally dissolve the company.
The trial court granted summary judgement to the defendants, holding that Lalonde could not show that the law firm was the proximate cause of his injuries based on his decision to settle the underlying lawsuit.
The Court of Appeals affirmed, relying on case law holding that the settlement of a viable claim severs the causal chain because it is impossible for the claim to terminate in the client's favor. Lalonde argued to the Court of Appeals that this case law was inapplicable because it involved settlement of lawsuits in which the alleged malpractice took place, and asserted the malpractice had caused the litigation in the first place.
The Court asked the parties to address the following question:
In a legal malpractice action, to what extent does the plaintiff's settlement of the underlying or related litigation sever the causal link between the plaintiff's damages and the defendant's alleged negligence?
The full Court of Appeals opinion is available here.
Denied
S19C0999. SHELNUTT et al. v. THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH et al. (A18A1667)
S19C1009. FORD MOTOR COMPANY v. HILL et al. (A19A1055)
S19C1013. MCCRARY v. GEORGIA EMPLOYEE RETIREMENT SYSTEM (A18A2015)
S19C1015. TRUAX et al. v. CITIMORTGAGE, INC. (A18A2158)
S19C1028. AARON v. UNITED HEALTH SERVICES OF GEORGIA, INC. et al. (A18A1926)
S19C1030. PATEL v. SOUTHBRIDGE GOLF, LLC et al. (A18A1652)
S19C1043. MARTIN v. THE STATE (A18A1627)
S19C1050. BROUGHTON v. BROUGHTON et al. (A18A1776)
S19C1066. COMMERCIAL INDUSTRIAL BUILDING OWNERS ALLIANCE, INC. et al. v. VILLA SONOMA AT PERIMETER SUMMIT CONDOMINIUM ASSOCIATION, INC. (A18A1760)
S19C1067. ETTRICK et al. v. SUNTRUST MORTGAGE, INC. (A18A1615)
S19C1071. ROWLAND v. THE STATE (A18A1562)
S19C1072. LOVE v. THE STATE (A18A1818)
S19C1081. DREISBACH v. BASKIN & BASKIN, P.C. (A18A1455)
S19C1092. STONE v. HOSPITAL AUTHORITY OF TIFT COUNTY (A18A2046)
S19C1100. WELLSTAR HEALTH SYSTEM, INC. et al. v. MOORE (A18A1810)
S19C1103. PHILLIPS v. THE STATE (A19A0045)
S19C1149. LEE v. THE STATE (A19A1402)
S19C1195. COBBLE v. FACHINI (A19D0367)
S19C1198. CASTLEBERRY v. REYNOLDS (A19D0397)
S20C0381. GEORGIA ANESTHESIOLOGISTS, P.C. et al. v. MOORE (A18A1810)
Lalonde is a malpractice action against the law firm of Taylor English Duma LLP. In essence, the claim alleged that one of the law firm's partners drafted a contract which permitted the majority owner of a company in which Lalonde owned a minority stake to unilaterally dissolve the company.
The trial court granted summary judgement to the defendants, holding that Lalonde could not show that the law firm was the proximate cause of his injuries based on his decision to settle the underlying lawsuit.
The Court of Appeals affirmed, relying on case law holding that the settlement of a viable claim severs the causal chain because it is impossible for the claim to terminate in the client's favor. Lalonde argued to the Court of Appeals that this case law was inapplicable because it involved settlement of lawsuits in which the alleged malpractice took place, and asserted the malpractice had caused the litigation in the first place.
The Court asked the parties to address the following question:
In a legal malpractice action, to what extent does the plaintiff's settlement of the underlying or related litigation sever the causal link between the plaintiff's damages and the defendant's alleged negligence?
The full Court of Appeals opinion is available here.
Denied
S19C0999. SHELNUTT et al. v. THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH et al. (A18A1667)
S19C1009. FORD MOTOR COMPANY v. HILL et al. (A19A1055)
S19C1013. MCCRARY v. GEORGIA EMPLOYEE RETIREMENT SYSTEM (A18A2015)
S19C1015. TRUAX et al. v. CITIMORTGAGE, INC. (A18A2158)
S19C1028. AARON v. UNITED HEALTH SERVICES OF GEORGIA, INC. et al. (A18A1926)
S19C1030. PATEL v. SOUTHBRIDGE GOLF, LLC et al. (A18A1652)
S19C1043. MARTIN v. THE STATE (A18A1627)
S19C1050. BROUGHTON v. BROUGHTON et al. (A18A1776)
S19C1066. COMMERCIAL INDUSTRIAL BUILDING OWNERS ALLIANCE, INC. et al. v. VILLA SONOMA AT PERIMETER SUMMIT CONDOMINIUM ASSOCIATION, INC. (A18A1760)
S19C1067. ETTRICK et al. v. SUNTRUST MORTGAGE, INC. (A18A1615)
S19C1071. ROWLAND v. THE STATE (A18A1562)
S19C1072. LOVE v. THE STATE (A18A1818)
S19C1081. DREISBACH v. BASKIN & BASKIN, P.C. (A18A1455)
S19C1092. STONE v. HOSPITAL AUTHORITY OF TIFT COUNTY (A18A2046)
S19C1100. WELLSTAR HEALTH SYSTEM, INC. et al. v. MOORE (A18A1810)
S19C1103. PHILLIPS v. THE STATE (A19A0045)
S19C1149. LEE v. THE STATE (A19A1402)
S19C1195. COBBLE v. FACHINI (A19D0367)
S19C1198. CASTLEBERRY v. REYNOLDS (A19D0397)
S20C0381. GEORGIA ANESTHESIOLOGISTS, P.C. et al. v. MOORE (A18A1810)
Tuesday, November 5, 2019
Cert Petitions: November 4
The Court granted certiorari in three new cases today: the first deals with mutual exclusivity in criminal convictions; the second with fraudulent misrepresentation; and the third with in rem forfeiture proceedings.
Middleton v. The State
Middleton stems from the Defendant's conviction of a litany of crimes for the armed robbery of a woman in Savannah, Georgia. Relevant here, Middleton argued to the Court of Appeals that his convictions for armed robbery, hijacking a motor vehicle, and theft by receiving stolen property were mutually exclusive - because all three convictions related to the same vehicle.
The Court of Appeals declined to analyze the mutual exclusivity of the hijacking claim, pointing out that trial counsel for Middleton had not raised the issue at the time the verdict was rendered.
As to the robbery and theft by receiving counts, the Court of Appeals found the convictions were not mutually exclusive. Verdicts are mutually exclusive where "a guilty verdict on one count logically excludes a finding of guilt on the other." Shepherd v. State, 280 Ga. 245, 248 (2006). Here, however, the armed robbery count alleged the taking of the victim's keys and person, whereas the theft by receiving stolen property count dealt with "retain[ing] the victim's vehicle after hijacking the vehicle."
The grant of certiorari appears to deal with the hijacking and the theft counts (to which the Court of Appeals found Middleton had waived his objection).
The Court asked the parties to address two questions:
(1) Must a defendant object to the form of the verdict in order to assert on appeal that convictions are mutually exclusive?
(2) Are convictions for hijacking and theft by receiving the same vehicle mutually exclusive?
The full Court of Appeals opinion is available here.
Global Payments, Inc. v. Incomm Financial Services, Inc.
The case involves a fraudulent misrepresentation claim regarding the servicing of prepaid VISA cards. Incomm Financial Services ("IFS") issued and serviced the cards, and Global Payments Inc ("Global") sold products granting merchants access to the VISA network.
The basics of a transaction are familiar: a consumer uses the card to make a purchase from a merchant, which transmits transaction data to companies like Global. Global then either submits the transaction to VISA or declines it - usually because the transaction was irregular, unverifiable, invalid, or otherwise contained fraudulent data. If Global detected a basis for rejecting the transaction, it had a duty not to transmit the data to VISA.
The complaint in the case alleged fraudulent misrepresentation based on Global's transmission of invalid transactions. IFS alleged that Global had failed to exercise reasonable and ordinary care in forwarding these transactions onto them.
The Court asked the parties to address the following question:
Did the Court of Appeals err in reversing the trial court's order dismissing the respondent's negligent misrepresentation claim against the petitioner for allegedly transmitting false information made by a third-party?
The Court of Appeals opinion is available here.
Crowder v. State of Georgia
Crowder involves an in rem forfeiture action for more than $46,000 seized from a passenger attempting to board a flight at Hartsfield-Jackson Airport.
The Superior Court awarded the money to Crowder, but the Court of Appeals held that (1) Crowder's answer did not comply with pleading requirements for forfeiture actions, and (2) the state sufficiently effected service of process.
The Court asked the parties to address two questions:
(1) In an in rem forfeiture proceeding, may the forfeiture complaint be served by publication in the first instance when an interest holder resides out of state?
(2) Must a trial court rule on a pending motion for more definite statement before striking a claimant's answer as insufficient?
The full Court of Appeals opinion is available here.
Denied
S19C0701. CARCAMO v. THE STATE (A19A0529)
S19C0904. BADDELEY v. THE STATE (A18A1623)
S19C0910. KNOUS v. GEORGIAN FINE PROPERTIES, LLC et al. (A18A1559)
S19C0914. GANDHI v. PATEL et al. (A18A1472, A18A1473)
S19C0919. BOLTON et al. v. GOLDEN BUSINESS, INC. (A18A1600)
S19C0921. PIERSON v. THE STATE (A18A1460)
S19C0923. WATSON v. CROWE (A18A1984)
S19C0925. JOHNSON v. THE STATE (A18A2016)
S19C0926. DEMARTINO v. THE STATE (A17A1249)
S19C0929. PATEL et al. v. GANDHI (A18A1472)
S19C0930. BURNETTE v. BARRETT et al. (A18A1705)
S19C0932. IN THE INTEREST OF S.H. et al., CHILDREN (A18A1506)
S19C0938. RIDLEY v. GEORGIA LOTTERY CORPORATION (A19A0795)
S19C0943. SUNDY v. FRIENDSHIP PAVILION ACQUISITION COMPANY, LLC (A19D0345)
S19C0944. HICKMAN v. COURT OF APPEALS OF GEORGIA (A19A1337)
S19C0945. JOHNSON v. THE STATE (A19A1329)
S19C0955. SAGE et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY (A18A1514)
S19C0961. FORD v. FORD (A18A1688)
S19C0962. IN THE INTEREST OF P.H.P., A CHILD (A18A1666)
S19C0963. WHITE-LETT v. LINEBARGER, GOGGAN, BLAIR & SAMPSON, LLP et al. (A18A1557)
S19C0966. ATLANTA HAWKS BASKETBALL & ENTERTAINMENT, LLC v. NEW HAMPSHIRE INSURANCE COMPANY (A18A1953)
S19C0968. WATERS v. THE STATE (A18A2031)
S19C0973. FITZPATRICK v. THE STATE (A18A1762)
S19C0976. WARNOCK v. SANFORD et al. (A18A1656)
S19C0978. DEEDS v. THE STATE (A18A1644)
S19C0979. HARTMAN v. PIP-GROUP, LLC (A18A1529)
S19C0984. BURGESS v. THE STATE (A18A1596)
S19C0989. COY v. THE STATE (A18A1955)
S19C0994. JHJ JODECO 65, LLC et al. v. EMSON INVESTMENT PROPERTIES, LLC (A18A1598)
S19C0997. SIMMONS et al. v. UNIVERSAL PROTECTION SERVICES, LLC et al. (A18A1702)
S19C1002. BARUTI et al. v. ONA et al. (A18A1718)
S19C1003. BYRD v. THE STATE (A18A1589, A18A1593)
S19C1010. COHAN LAW GROUP, LLC et al. v. KATZ (A18A1775)
S19C1011. CMV, LLC v. ENOCKOMAN, LLC (A18A1881)
S19C1014. WARREN AVERETT, LLC v. LANDCASTLE ACQUISITION CORP. (A18A2117)
S19C1016. WARD v. U.S. BANK NATIONAL ASSOCIATION (A19A1555)
S19C1018. GEORGIA LOTTERY CORPORATION v. PATEL (A18A2143)
S19C1020. DUKE v. THE STATE (A19A1461)
S19C1037. BELL v. THE STATE (A18A1478)
S19C1049. AMALGAMATED TRANSIT UNION, LOCAL 732 v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY (A18A1680)
S19C1059. YANCEY v. FEDERAL NATIONAL MORTGAGE ASSOCIATION a/k/a FANNIE MAE (A19A1142)
S19C1069. GUTTER-PARKER v. KING (A18A1511)
S19C1074. HALL et al. v. DAVIS LAWN CARE SERVICE, INC. et al. (A19A1049)
S19C1084. THE STATE v. EVANS (A18A1895)
S19C1094. PANTERA ENTERPRISES, INC. v. BLAIR (A18A2108)
S19C1393. JCG FARMS OF ALABAMA, LLC v. HOBERT et al. (A19A0099)
S20C0243. IN THE INTEREST OF S.H. et al., CHILDREN (A18A1507)
Middleton v. The State
Middleton stems from the Defendant's conviction of a litany of crimes for the armed robbery of a woman in Savannah, Georgia. Relevant here, Middleton argued to the Court of Appeals that his convictions for armed robbery, hijacking a motor vehicle, and theft by receiving stolen property were mutually exclusive - because all three convictions related to the same vehicle.
The Court of Appeals declined to analyze the mutual exclusivity of the hijacking claim, pointing out that trial counsel for Middleton had not raised the issue at the time the verdict was rendered.
As to the robbery and theft by receiving counts, the Court of Appeals found the convictions were not mutually exclusive. Verdicts are mutually exclusive where "a guilty verdict on one count logically excludes a finding of guilt on the other." Shepherd v. State, 280 Ga. 245, 248 (2006). Here, however, the armed robbery count alleged the taking of the victim's keys and person, whereas the theft by receiving stolen property count dealt with "retain[ing] the victim's vehicle after hijacking the vehicle."
The grant of certiorari appears to deal with the hijacking and the theft counts (to which the Court of Appeals found Middleton had waived his objection).
The Court asked the parties to address two questions:
(1) Must a defendant object to the form of the verdict in order to assert on appeal that convictions are mutually exclusive?
(2) Are convictions for hijacking and theft by receiving the same vehicle mutually exclusive?
The full Court of Appeals opinion is available here.
Global Payments, Inc. v. Incomm Financial Services, Inc.
The case involves a fraudulent misrepresentation claim regarding the servicing of prepaid VISA cards. Incomm Financial Services ("IFS") issued and serviced the cards, and Global Payments Inc ("Global") sold products granting merchants access to the VISA network.
The basics of a transaction are familiar: a consumer uses the card to make a purchase from a merchant, which transmits transaction data to companies like Global. Global then either submits the transaction to VISA or declines it - usually because the transaction was irregular, unverifiable, invalid, or otherwise contained fraudulent data. If Global detected a basis for rejecting the transaction, it had a duty not to transmit the data to VISA.
The complaint in the case alleged fraudulent misrepresentation based on Global's transmission of invalid transactions. IFS alleged that Global had failed to exercise reasonable and ordinary care in forwarding these transactions onto them.
The Court asked the parties to address the following question:
Did the Court of Appeals err in reversing the trial court's order dismissing the respondent's negligent misrepresentation claim against the petitioner for allegedly transmitting false information made by a third-party?
The Court of Appeals opinion is available here.
Crowder v. State of Georgia
Crowder involves an in rem forfeiture action for more than $46,000 seized from a passenger attempting to board a flight at Hartsfield-Jackson Airport.
The Superior Court awarded the money to Crowder, but the Court of Appeals held that (1) Crowder's answer did not comply with pleading requirements for forfeiture actions, and (2) the state sufficiently effected service of process.
The Court asked the parties to address two questions:
(1) In an in rem forfeiture proceeding, may the forfeiture complaint be served by publication in the first instance when an interest holder resides out of state?
(2) Must a trial court rule on a pending motion for more definite statement before striking a claimant's answer as insufficient?
The full Court of Appeals opinion is available here.
Denied
S19C0701. CARCAMO v. THE STATE (A19A0529)
S19C0904. BADDELEY v. THE STATE (A18A1623)
S19C0910. KNOUS v. GEORGIAN FINE PROPERTIES, LLC et al. (A18A1559)
S19C0914. GANDHI v. PATEL et al. (A18A1472, A18A1473)
S19C0919. BOLTON et al. v. GOLDEN BUSINESS, INC. (A18A1600)
S19C0921. PIERSON v. THE STATE (A18A1460)
S19C0923. WATSON v. CROWE (A18A1984)
S19C0925. JOHNSON v. THE STATE (A18A2016)
S19C0926. DEMARTINO v. THE STATE (A17A1249)
S19C0929. PATEL et al. v. GANDHI (A18A1472)
S19C0930. BURNETTE v. BARRETT et al. (A18A1705)
S19C0932. IN THE INTEREST OF S.H. et al., CHILDREN (A18A1506)
S19C0938. RIDLEY v. GEORGIA LOTTERY CORPORATION (A19A0795)
S19C0943. SUNDY v. FRIENDSHIP PAVILION ACQUISITION COMPANY, LLC (A19D0345)
S19C0944. HICKMAN v. COURT OF APPEALS OF GEORGIA (A19A1337)
S19C0945. JOHNSON v. THE STATE (A19A1329)
S19C0955. SAGE et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY (A18A1514)
S19C0961. FORD v. FORD (A18A1688)
S19C0962. IN THE INTEREST OF P.H.P., A CHILD (A18A1666)
S19C0963. WHITE-LETT v. LINEBARGER, GOGGAN, BLAIR & SAMPSON, LLP et al. (A18A1557)
S19C0966. ATLANTA HAWKS BASKETBALL & ENTERTAINMENT, LLC v. NEW HAMPSHIRE INSURANCE COMPANY (A18A1953)
S19C0968. WATERS v. THE STATE (A18A2031)
S19C0973. FITZPATRICK v. THE STATE (A18A1762)
S19C0976. WARNOCK v. SANFORD et al. (A18A1656)
S19C0978. DEEDS v. THE STATE (A18A1644)
S19C0979. HARTMAN v. PIP-GROUP, LLC (A18A1529)
S19C0984. BURGESS v. THE STATE (A18A1596)
S19C0989. COY v. THE STATE (A18A1955)
S19C0994. JHJ JODECO 65, LLC et al. v. EMSON INVESTMENT PROPERTIES, LLC (A18A1598)
S19C0997. SIMMONS et al. v. UNIVERSAL PROTECTION SERVICES, LLC et al. (A18A1702)
S19C1002. BARUTI et al. v. ONA et al. (A18A1718)
S19C1003. BYRD v. THE STATE (A18A1589, A18A1593)
S19C1010. COHAN LAW GROUP, LLC et al. v. KATZ (A18A1775)
S19C1011. CMV, LLC v. ENOCKOMAN, LLC (A18A1881)
S19C1014. WARREN AVERETT, LLC v. LANDCASTLE ACQUISITION CORP. (A18A2117)
S19C1016. WARD v. U.S. BANK NATIONAL ASSOCIATION (A19A1555)
S19C1018. GEORGIA LOTTERY CORPORATION v. PATEL (A18A2143)
S19C1020. DUKE v. THE STATE (A19A1461)
S19C1037. BELL v. THE STATE (A18A1478)
S19C1049. AMALGAMATED TRANSIT UNION, LOCAL 732 v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY (A18A1680)
S19C1059. YANCEY v. FEDERAL NATIONAL MORTGAGE ASSOCIATION a/k/a FANNIE MAE (A19A1142)
S19C1069. GUTTER-PARKER v. KING (A18A1511)
S19C1074. HALL et al. v. DAVIS LAWN CARE SERVICE, INC. et al. (A19A1049)
S19C1084. THE STATE v. EVANS (A18A1895)
S19C1094. PANTERA ENTERPRISES, INC. v. BLAIR (A18A2108)
S19C1393. JCG FARMS OF ALABAMA, LLC v. HOBERT et al. (A19A0099)
S20C0243. IN THE INTEREST OF S.H. et al., CHILDREN (A18A1507)
Thursday, October 10, 2019
Cert Petitions: October 7, 2019
The court granted cert in three cases today: the first deals with conflicting doctrines of recovery in workers compensation law; the second deals with certification of class actions; and the third deals with the prejudice prong of ineffective assistance of counsel claims.
Frett v. State Farm Employee Workers Compensation
Frett is a workers compensation case involving the compensability of injuries that occur when an employee is on their way out of the building to take a regularly scheduled lunch break.
The general rule is that in order for an injured employee to recover under workers compensation laws, their injury must arise out of the course of their employment. Frett brings to the Court a conflict between two doctrines dealing with just when an employee is and is not acting "within the course of their employment." On the one hand, the "lunch break" exception holds that an employee is not acting pursuant to their employment when they are taking a scheduled lunch break. This is because an employee taking a lunch break is not pursuing any aim or goal of the employer's, even if they are still on the employer's property. By contrast, the "ingress/egress rule" says that preparations at the place of employment to begin work or leave it are within the scope of employment. The two conflict because the Court of Appeals has applied the ingress/egress rule to situations where an employee is going to or returning from a regularly scheduled lunch break.
Frett brings this conflict to a head: the employee here slipped in a break room where she was preparing her lunch before going outside (and off company property) to eat her lunch. The administrative law judge awarded temporary total disability benefits, but the Court of Appeals reversed -- disapproving the cases applying the ingress/egress rule to regularly scheduled lunch breaks. In addition to producing inconsistent results over time, those cases produced a paradox, the court said, by giving protection to an employee leaving the premises for a lunch break -- while denying it to an employee who eats at their desk.
The Court asked the parties to address "[w]hether the 'ingress/egress' rule applies to the "scheduled break" rule in cases under the Workers' Compensation Act?"
Justice Peterson dissented from the grant of certiorari. Justices Bethel and Ellington will not participate in the case.
The case will be added to the February 2020 oral argument calendar.
Bowden et al. v. The Medical Center, Inc. (and vice versa)
Bowden is a class action action against a Columbus, Georgia Healthcare provider, brought by uninsured patients ("the Patients") who were treated at The Medical Center ("TMC") after car accidents. Because these patients were uninsured, TMC sought repayment by imposing a lien on any tort recovery the patients might obtain in lawsuits concerning the accidents.
Bowden, the named plaintiff in the suit, initiated the lawsuit claiming that the amount charged for medical care was unreasonable and therefore thus the amount on the lien excessive. The trial court granted class certification, denied TMCs motion to exclude the Patients' expert witness, and denied their motion for summary judgement.
The Court of Appeals affirmed on the first two points, but held that summary judgement should have been granted against at the Plaintiffs' claims under the Uniform Deceptive Trade Practices Act ("UDTPA") and the Georgia Racketeer Influenced and Corrupt Organizations Act ("RICO"). The Court of Appeals Opinion is available here.
The Court asked the parties to address the following questions:
1. Did the Court of Appeals err in its determination that class certification was proper?
2. Did the Court of Appeals err in affirming the denial of summary judgment for The Medical Center, Inc. on common law claims for fraud and negligent misrepresentation?
3. Did the Court of Appeals err in reversing the denial of summary judgment for The Medical Center, Inc. on the claims under the Georgia RICO Act, OCGA § 16-14-1 et seq.?
All the Justices concurred in granting cert except Justices Boggs and Peterson, who will not participate.
The State v. Heath
Heath deals with a classic issue in criminal appeals: the prejudice prong of an ineffective assistance of counsel claim.
Heath was convicted of numerous counts of homicide by vehicle in various degrees and, relevant to the Cert grant, contended her trial counsel was constitutionally ineffective based on the failure to file a demurrer to defective portions of the indictment.
An ineffective assistance claim only prevails where the appellant can show both that their counsel was deficient and that, but for those errors, there is a reasonable probability the outcome of their trial would have been different. Here, the indictments did not allege either reckless driving or driving under the influence. Thus, Heath contends, she could have admitted all the allegations charged -- and still not been guilty of a crime. As a result, the failure of her trial counsel to file the general demurrer is both deficient and prejudicial.
The Court asked the parties to address the following question:
Did the Court of Appeals err in holding that trial counsel’s failure to file a general demurrer resulted in prejudice under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)? Compare Walker v. State, 329 Ga. App. 369 (3) (a) (765 SE2d 599) (2014), with Everhart v. State, 337 Ga. App. 348 (3) (a) (786 SE2d 866) (2016); Youngblood v. State, 253 Ga. App. 327 (3) (558 SE2d 854) (2002).
Denied
S19C0885. STARDUST, 3007 LLC et al. v. CITY OF BROOKHAVEN (A18A1958, A19A0228)
S19C0922. OKEFENOKEE EMERGENCY MEDICAL SERVICE, INC. v. ORTEGA (A18A1662)
S19C0832. REID v. REID (A18A1498)
S19C0840. COLE v. THE STATE (A18A1691)
S19C0853. PITTMAN v. SUMMIT RESTAURANT DEVELOPMENT, LLC (A18A1988)
S19C0857. LAMB v. NELMS (A19A0822)
S19C0867. KUMICHEL et al. v. CLARK et al. (A19I0153)
S19C0875. GEORGIA APPRECIATION PROPERTY, INC. v. RUTLEDGE et al. (A18A1490)
S19C0877. HARTLEY v. THE STATE (A18A1431)
S19C0881. FRASIER et al. v. SHAH et al. (A18A2002)
S19C0887. DIXIT v. DIXIT (A18A1628)
S19C0911. ROBBINS v. DOZIER (A19D0322)
Frett v. State Farm Employee Workers Compensation
Frett is a workers compensation case involving the compensability of injuries that occur when an employee is on their way out of the building to take a regularly scheduled lunch break.
The general rule is that in order for an injured employee to recover under workers compensation laws, their injury must arise out of the course of their employment. Frett brings to the Court a conflict between two doctrines dealing with just when an employee is and is not acting "within the course of their employment." On the one hand, the "lunch break" exception holds that an employee is not acting pursuant to their employment when they are taking a scheduled lunch break. This is because an employee taking a lunch break is not pursuing any aim or goal of the employer's, even if they are still on the employer's property. By contrast, the "ingress/egress rule" says that preparations at the place of employment to begin work or leave it are within the scope of employment. The two conflict because the Court of Appeals has applied the ingress/egress rule to situations where an employee is going to or returning from a regularly scheduled lunch break.
Frett brings this conflict to a head: the employee here slipped in a break room where she was preparing her lunch before going outside (and off company property) to eat her lunch. The administrative law judge awarded temporary total disability benefits, but the Court of Appeals reversed -- disapproving the cases applying the ingress/egress rule to regularly scheduled lunch breaks. In addition to producing inconsistent results over time, those cases produced a paradox, the court said, by giving protection to an employee leaving the premises for a lunch break -- while denying it to an employee who eats at their desk.
The Court asked the parties to address "[w]hether the 'ingress/egress' rule applies to the "scheduled break" rule in cases under the Workers' Compensation Act?"
Justice Peterson dissented from the grant of certiorari. Justices Bethel and Ellington will not participate in the case.
The case will be added to the February 2020 oral argument calendar.
Bowden et al. v. The Medical Center, Inc. (and vice versa)
Bowden is a class action action against a Columbus, Georgia Healthcare provider, brought by uninsured patients ("the Patients") who were treated at The Medical Center ("TMC") after car accidents. Because these patients were uninsured, TMC sought repayment by imposing a lien on any tort recovery the patients might obtain in lawsuits concerning the accidents.
Bowden, the named plaintiff in the suit, initiated the lawsuit claiming that the amount charged for medical care was unreasonable and therefore thus the amount on the lien excessive. The trial court granted class certification, denied TMCs motion to exclude the Patients' expert witness, and denied their motion for summary judgement.
The Court of Appeals affirmed on the first two points, but held that summary judgement should have been granted against at the Plaintiffs' claims under the Uniform Deceptive Trade Practices Act ("UDTPA") and the Georgia Racketeer Influenced and Corrupt Organizations Act ("RICO"). The Court of Appeals Opinion is available here.
The Court asked the parties to address the following questions:
1. Did the Court of Appeals err in its determination that class certification was proper?
2. Did the Court of Appeals err in affirming the denial of summary judgment for The Medical Center, Inc. on common law claims for fraud and negligent misrepresentation?
3. Did the Court of Appeals err in reversing the denial of summary judgment for The Medical Center, Inc. on the claims under the Georgia RICO Act, OCGA § 16-14-1 et seq.?
All the Justices concurred in granting cert except Justices Boggs and Peterson, who will not participate.
The State v. Heath
Heath deals with a classic issue in criminal appeals: the prejudice prong of an ineffective assistance of counsel claim.
Heath was convicted of numerous counts of homicide by vehicle in various degrees and, relevant to the Cert grant, contended her trial counsel was constitutionally ineffective based on the failure to file a demurrer to defective portions of the indictment.
An ineffective assistance claim only prevails where the appellant can show both that their counsel was deficient and that, but for those errors, there is a reasonable probability the outcome of their trial would have been different. Here, the indictments did not allege either reckless driving or driving under the influence. Thus, Heath contends, she could have admitted all the allegations charged -- and still not been guilty of a crime. As a result, the failure of her trial counsel to file the general demurrer is both deficient and prejudicial.
The Court asked the parties to address the following question:
Did the Court of Appeals err in holding that trial counsel’s failure to file a general demurrer resulted in prejudice under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)? Compare Walker v. State, 329 Ga. App. 369 (3) (a) (765 SE2d 599) (2014), with Everhart v. State, 337 Ga. App. 348 (3) (a) (786 SE2d 866) (2016); Youngblood v. State, 253 Ga. App. 327 (3) (558 SE2d 854) (2002).
Denied
S19C0885. STARDUST, 3007 LLC et al. v. CITY OF BROOKHAVEN (A18A1958, A19A0228)
S19C0922. OKEFENOKEE EMERGENCY MEDICAL SERVICE, INC. v. ORTEGA (A18A1662)
S19C0832. REID v. REID (A18A1498)
S19C0840. COLE v. THE STATE (A18A1691)
S19C0853. PITTMAN v. SUMMIT RESTAURANT DEVELOPMENT, LLC (A18A1988)
S19C0857. LAMB v. NELMS (A19A0822)
S19C0867. KUMICHEL et al. v. CLARK et al. (A19I0153)
S19C0875. GEORGIA APPRECIATION PROPERTY, INC. v. RUTLEDGE et al. (A18A1490)
S19C0877. HARTLEY v. THE STATE (A18A1431)
S19C0881. FRASIER et al. v. SHAH et al. (A18A2002)
S19C0887. DIXIT v. DIXIT (A18A1628)
S19C0911. ROBBINS v. DOZIER (A19D0322)
Monday, September 23, 2019
Cert Petitions: September 23
The Court granted cert in just one case today: New Cingular Wireless PCS, LLC et al. v. Department of Revenue et al. The case deals with when statutes may operate retroactively, here in the context of standing to sue for a tax refund.
The petitioners, a group of wireless internet providers, filed suit against the Department of Revenue after it refused to issue a refund for sales taxes they believe were wrongfully collected. The trial court dismissed the suit, holding (1) that the petitioners could not seek a refund before remitting the taxes in question to their customers; (2) that the petitioners lacked standing to collect taxes before the revenue code was amended in May of 2009, and (3) that a class action for a refund was barred by Georgia law.
This is the second time the case has made its way to the Court; in New Cingular I, the Court reversed the holding of the trial court (and the court of appeals) on the first point. On remand from New Cingular I, then Chief-Judge Dillard wrote for the Court of appeals that this second ground justified dismissal as well.
While the parties agree that the Revenue Code was amended in May, 2009 to allow third party standing in suits to remit wrongfully collected taxes, they disagree on whether this change apply before that date as well. See O.C.G.A. 48-2-35 and 35.1.
The Court of Appeals held it did not. Statutes are presumed to have only prospective effect, See S. States-Bartow Cnty. Inc. v. Riverwood Farm Homeowners Assoc., 300 Ga. 609 (2017); O.C.G.A. 1-3-5, and this presumption can only be overcome by a clear statement to the contrary. id. It is not enough that a statute applies to prior or preexisting facts. Bank of Norman Park, 169 Ga. 534, 536 (1929). Indeed, some types of legislation may not operate retroactively, such as "legislation which affects substantive rights" or "creates rights, duties, and obligations." Crane Composites, Inc. v. Wayne Farms, 296 Ga. 271, 272 (2014).
These principles decide the case, Judge Dillard wrote, because standing is a substantive right to have the court decide the merits of a case. Therefore, a law dealing with standing to sue affects substantive rights, and may not be the object of retroactive legislation.
The Court granted cert on this issue, asking the parties to address whether the Court of Appeals erred "in holding that the plaintiffs lacked standing to file refund claims for periods prior to May, 2009?"
All the Justices concurred in granting cert, except for Justices Bethel and Peterson, who were disqualified, and Justice Warren, who will not participate.
The case will be assigned to the January 2020 oral argument calendar.
Denied
S19C0719. CHRISTIANO et al. v. A BETTERWAY LEASING, LLC et al. (A18A1902)
S19C0720. ANTHONY v. THE STATE (A18A2134)
S19C0757. HUNNICUTT v. THE STATE (A18A1863)
S19C0761. BISHOP v. THE STATE (A19A0794)
S19C0774. MCDONALD v. MCDONALD (A19D0258, A19A0965)
S19C0778. ROSS v. WELLS FARGO BANK, N.A. et al. (A19D0275)
S19C0783. ESTRADA v. THE STATE (A18A1793)
S19C0787. WILSON v. SUNNYLAND COMMUNITY, LLC (A19A0829)
S19C0800. COBBLE v. WILLIAMS (A19D0209)
S19C0828. WESTROCK et al. v. HILL (A19D0256)
S19C0871. BIVINS v. THE STATE (A18A1493, A18A1494)
The petitioners, a group of wireless internet providers, filed suit against the Department of Revenue after it refused to issue a refund for sales taxes they believe were wrongfully collected. The trial court dismissed the suit, holding (1) that the petitioners could not seek a refund before remitting the taxes in question to their customers; (2) that the petitioners lacked standing to collect taxes before the revenue code was amended in May of 2009, and (3) that a class action for a refund was barred by Georgia law.
This is the second time the case has made its way to the Court; in New Cingular I, the Court reversed the holding of the trial court (and the court of appeals) on the first point. On remand from New Cingular I, then Chief-Judge Dillard wrote for the Court of appeals that this second ground justified dismissal as well.
While the parties agree that the Revenue Code was amended in May, 2009 to allow third party standing in suits to remit wrongfully collected taxes, they disagree on whether this change apply before that date as well. See O.C.G.A. 48-2-35 and 35.1.
The Court of Appeals held it did not. Statutes are presumed to have only prospective effect, See S. States-Bartow Cnty. Inc. v. Riverwood Farm Homeowners Assoc., 300 Ga. 609 (2017); O.C.G.A. 1-3-5, and this presumption can only be overcome by a clear statement to the contrary. id. It is not enough that a statute applies to prior or preexisting facts. Bank of Norman Park, 169 Ga. 534, 536 (1929). Indeed, some types of legislation may not operate retroactively, such as "legislation which affects substantive rights" or "creates rights, duties, and obligations." Crane Composites, Inc. v. Wayne Farms, 296 Ga. 271, 272 (2014).
These principles decide the case, Judge Dillard wrote, because standing is a substantive right to have the court decide the merits of a case. Therefore, a law dealing with standing to sue affects substantive rights, and may not be the object of retroactive legislation.
The Court granted cert on this issue, asking the parties to address whether the Court of Appeals erred "in holding that the plaintiffs lacked standing to file refund claims for periods prior to May, 2009?"
All the Justices concurred in granting cert, except for Justices Bethel and Peterson, who were disqualified, and Justice Warren, who will not participate.
The case will be assigned to the January 2020 oral argument calendar.
Denied
S19C0719. CHRISTIANO et al. v. A BETTERWAY LEASING, LLC et al. (A18A1902)
S19C0720. ANTHONY v. THE STATE (A18A2134)
S19C0757. HUNNICUTT v. THE STATE (A18A1863)
S19C0761. BISHOP v. THE STATE (A19A0794)
S19C0774. MCDONALD v. MCDONALD (A19D0258, A19A0965)
S19C0778. ROSS v. WELLS FARGO BANK, N.A. et al. (A19D0275)
S19C0783. ESTRADA v. THE STATE (A18A1793)
S19C0787. WILSON v. SUNNYLAND COMMUNITY, LLC (A19A0829)
S19C0800. COBBLE v. WILLIAMS (A19D0209)
S19C0828. WESTROCK et al. v. HILL (A19D0256)
S19C0871. BIVINS v. THE STATE (A18A1493, A18A1494)
Tuesday, September 3, 2019
Cert Petitions: September 3rd
The Court granted cert in just one case today, Hooper v. Hooper.
The underlying case is a divorce action. After the trial court issued a divorce decree, the husband filed a motion for a new trial, which was dismissed for failure to appear at the hearing scheduled for the motion. The trial court then awarded attorney fees to the wife for having to defend against the motion. Thirty days later, the husband filed a petition for discretionary appeal, seeking to review the custody the trial court's custody determination nearly five months earlier. Finding that this application was made well past the thirty day deadline, see OCGA 5-6-35(b), the Court of Appeals denied the application as untimely. In doing so, the Court of Appeals rejected the husband's argument that the application was timely since it was filed within thirty days of the trial court's most recent order (granting attorney fees to the wife).
The Court asked the parties to address the following question:
Did the Court of Appeals err in dismissing petitioner’s
discretionary application to appeal as untimely? Compare
Islamkhan v. Khan, 299 Ga. 548 (787 SE2d 731) (2016), with
O’Leary v. Whitehall Const., 288 Ga. 790 (708 SE2d 353) (2011).
The cert question appears to address the conflict of two general principles of appellate jurisdiction. On the one hand, Islamkhan stands for the proposition that an order granting divorce but reserving the issue of attorney fees is not final. On the other, O'Leary teaches that a post judgement motion for fees does not toll the time for appeal, and the failure to timely take an appeal is a jurisdictional bar. Since it appears from the Court of Appeals' order that the trial court did not expressly reserve the issue, the cert grant may signal the court's desire to clarify whether a divorce order which does not mention fees is subject to the same rule.
The case will be added to the January 2020 oral argument calendar.
Denied
S19C0486. NORTHSIDE HOSPITAL, INC. et al. v. SMITH (A15A2303, A15A2304)
S19C0624. KENNEDY v. THE SHAVE BARBER COMPANY, LLC (A18A1660)
S19C0631. GUERRERO-RICO v. THE STATE (A19A0721)
S19C0638. THE GOLDEN PATCH, LLC v. 2285 PEACHTREE, LLC (A19D0205)
S19C0677. MCKENZIE v. ABM AVIATION, INC. (A18A1505)
S19C0678. GRIFFIN v. HUMANA EMPLOYERS HEALTH PLAN OF GEORGIA, INC. (A18A1993)
S19C0711. HARRIS v. THE STATE (A19A0981)
S19C0712. ROUNDTREE v. THE STATE (A18A1578)
S19C0743. BRADLEY v. COX (A19A1100)
Thursday, August 22, 2019
Cert Petitions August 19
The Court granted Cert in three new cases today. The first deals with the proper analysis for when multiple counts of the same crime "merge" for purposes of sentencing (as opposed to multiple charges of different substantive crimes); the second deals with the proper standard to be applied in legitimation petions; and the third deals with whether a person who is brought into a jail in the custody of an officer can be charged with a separate crime for bringing a controlled substance into the facility, despite the fact that they did not enter voluntarily.
The Court granted Scott's petition for certiorari, unanimously vacated the decision below, and remanded the case ("Grant Vacate and Remand" or "GVR") directing the Court of appeals to apply the proper test for when separately charged crimes "merge" for sentencing purposes. “Merger” refers generally to situations in which a defendant
is prosecuted for and determined by trial or plea to be guilty of
multiple criminal charges but then, as a matter of substantive
double jeopardy law, can be punished – convicted and sentenced –
for only one of those crimes. See generally OCGA § 16-1-7 (a). Merger analysis usually applies where two separate crimes have been charged, but also come up where a defendant is charged with multiple counts of the same crime. In the latter context, the analysis depends on whether the counts are separate or distinct "units of prosecution," not, as in the contexts of separate types of crimes, whether the charges rely on the same "required evidence."
Justice Peterson joined the GVR, but wrote separately to express the view that a the issue of whether the trial court had denied the petitioner his right to a public trial should be addressed in a future case where it was properly preserved.
Both the order and the concurrence are available here.
MATHENIA et al. v. BRUMBELOW
The case involves a petition by Brumelow to legitimate his paternity of his biological son, which was denied by the trial court on the basis that he had abandoned his "opportunity interest" in developing a relationship with the child. Appellate courts review a trial court’s ruling on a legitimization petition for an abuse of
discretion, and its factual findings for “clear error and will only sustain such findings
if there is competent evidence to support them.”
The questions presented in the case are:
1. Did the Court of Appeals err in reversing the trial court’s
finding that Respondent had abandoned his opportunity
interest?
2. If not, did the Court of Appeals err in concluding that
Respondent’s legitimation petition must be assessed on
remand under the parental fitness standard rather than the
best interests standard?
Justices Peterson and Blackwell dissented from the grant of certiorari. The full Court of Appeals opinion is available here.
The case will be added to the December 2019 Oral Argument Calendar.
FOWLE v. THE STATE
Fowle v. State asks whether a person with marijuana on his person who is brought into a jail in the custody of an officer may be charged with the separate crime of bringing a controlled substance "inside the guard lines" without the Warden's permission, and, if so, whether the person is compelled to incriminate himself in violation of the US and Georgia Constitutions?
The Court of Appeals below held that such a person can be charged with the separate crime, reasoning that the language of the relevant statute (OCGA 42-5-15) does not contain any voluntariness requirement. Further, doing so does not violate either constitutional self-incrimination provision, because "although [the petitioner] claims that the arresting officer
presented him with the untenable choice of incriminating himself or facing a felony
charge under OCGA § 42-5-15 . . . [t]he
officer merely apprised Fowle of the legal consequences he potentially faced by
bringing marijuana into the jail, information that does not constitute a threat or
coercion."
The questions presented in the order granting certiorari are:
1. Does a person "come inside the guard lines" of a correctional
institution for the purposes of OCGA § 42-5-15 when he comes
inside the guard lines in the custody of a law enforcement officer?
2. If so, does OCGA § 42-5-15 compel such a person, to the extent
that he is in possession of marijuana or other contraband, to incriminate himself in violation of his constitutional privilege
against self-incrimination? See U.S. Const.,Amend. V; Ga. Const.
of 1983, Art.I, Sec I, Par. XVI.
3. Did the trial court err when it dismissed Count 1 of the
indictment?
Three justices dissented from the grant of certiorari, including Boggs, Peterson, and
Ellington.
The case has been added to the December 2019 Oral Argument Calendar. The full Court of Appeals opinion is available here.
Denied
S18C1201. THE STATE v. RAY (A18A0333)
S19C0475. GENS v. WHITE et al. (A18A0992)
S19C0502. PEACHTREE PLAYTHINGS, INC. v. D.J. POWERS COMPANY, INC. (A18A1305)
S19C0507. COBB v. THE STATE (A18A1018)
S19C0513. VASQUEZ v. THE STATE (A18A1016)
S19C0531. JESCHKE et al. v. TURNSTONE GROUP, LLC et al. (A18A1175)
S19C0545. TURNBULL v. THE STATE (A19D0142)
S19C0547. ROBINSON v. THE STATE (A18A1819)
S19C0551. STRAUCH v. THE STATE (A19A0623)
S19C0574. HUTCHINSON v. THE STATE (A19I0115)
S19C0593. EAST GEORGIA REGIONAL MEDICAL CENTER, LLC et al. v. ROBERTS (A19I0076)
S19C0697. EPPS v. THE STATE (A19A1032)
S19C0703. COBBLE v. FACHINI (A19D0233)
S19C0475. GENS v. WHITE et al. (A18A0992)
S19C0502. PEACHTREE PLAYTHINGS, INC. v. D.J. POWERS COMPANY, INC. (A18A1305)
S19C0507. COBB v. THE STATE (A18A1018)
S19C0513. VASQUEZ v. THE STATE (A18A1016)
S19C0531. JESCHKE et al. v. TURNSTONE GROUP, LLC et al. (A18A1175)
S19C0545. TURNBULL v. THE STATE (A19D0142)
S19C0547. ROBINSON v. THE STATE (A18A1819)
S19C0551. STRAUCH v. THE STATE (A19A0623)
S19C0574. HUTCHINSON v. THE STATE (A19I0115)
S19C0593. EAST GEORGIA REGIONAL MEDICAL CENTER, LLC et al. v. ROBERTS (A19I0076)
S19C0697. EPPS v. THE STATE (A19A1032)
S19C0703. COBBLE v. FACHINI (A19D0233)
Monday, July 1, 2019
Cert Petitions July 1
The Court granted cert in just one case today, Department of Public Safety v. Ragsdale.
Dept. of Public Safety v. Ragsdale.
Ragsdale was injured in a car accident by a fleeing suspect during a police chase, and filed suit against the Department of Public Safety.
The order granting cert asks whether "the time for filing an ante litem notice under the Georgia Tort Claims Act, see OCGA § 50-21-26 (a) (1), subject to tolling under OCGA § 9-33-99?"
"Ante litem notice" refers to the statutory requirement that a plaintiff seeking to file suit against the state or one of its agency provide notice to the the Risk Management Division of the Department of Administrative Services and the would-be-defendant officials "in writing within 12 months of the date the loss was discovered or should have been discovered." See OCGA § 50-21-26.
OCGA § 9-33-99 provides for the tolling of the statute of limitations for a tort claim brought by the victim of a crime "which arises out of the facts and circumstances relating to the commission of such alleged crime" until the criminal prosecution has concluded. The Court of Appeals has held over time that § 9-33-99 applies to tort claims against any activity related to the criminal conduct, even if the plaintiff's claim is not against the criminal actor himself.
Writing for the Court of Appeals, Presiding Judge Doyle rejected the state's argument that § 9-3-99 does not apply to the ante-litem notice because it is not a statute of limitations. While there is a separate statute of limitations provision under the GTCA (§ 50-21-27), the Court of Appeals has historically applied infancy-tolling provisions (preventing a deadline to run against a would-be-plaintiff while they are a minor) against ante-litem notice requirements, since they effectively operate as a time bar in those circumstances. See 347 Ga. App. 827, 830 (2019).
The case has been assigned to the October argument calendar.
Denied
S19C0365. HOLLAND v. THE STATE (A18A1317)
S19C0407. BANKS v. HERRERA et al. (A18A1300)
S19C0412. MANNERS v. 5 STAR LODGE & STABLES, LLC et al. (A18A1227)
S19C0414. NIX v. CITY OF GRIFFIN FIRE DEPARTMENT et al. (A19D0104)
S19C0421. RIVERS v. THE STATE (A18A0971)
S19C0423. GLOVER v. GEORGIA POWER COMPANY (A18A1005)
S19C0425. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA et al. v. SCAPA DRYER FABRICS, INC. (A18A1173)
S19C0432. EVANS V. WRIGHT (A19A0403)
S19C0436. 2602 DEERFIELD, LLC v. PATEL et al. (A18A1232)
S19C0437. SHEFFIELD et al. v. CONAIR CORPORATION (A18A1032)
S19C0444. OCONEE COUNTY v. YORK et al. (A18A0934)
S19C0447. FRETT v. STATE FARM EMPLOYEE WORKERS’ COMPENSATION et al. (A18A0820)
S19C0450. IN RE: CURT THOMPSON (A18A0857)
S19C0459. HOMELIFE ON GLYNCO, LLC et al. v. GATEWAY CENTER COMMERCIAL ASSOCIATION, INC. (A18A0860)
S19C0462. COBBLE v. LOCKHART et al. (A19D0133)
S19C0474. MCKINSTRY v. THE STATE (A18A1335)
S19C0492. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA et al. v. SCAPA DRYER FABRICS, INC. (A18A1174)
Dept. of Public Safety v. Ragsdale.
Ragsdale was injured in a car accident by a fleeing suspect during a police chase, and filed suit against the Department of Public Safety.
The order granting cert asks whether "the time for filing an ante litem notice under the Georgia Tort Claims Act, see OCGA § 50-21-26 (a) (1), subject to tolling under OCGA § 9-33-99?"
"Ante litem notice" refers to the statutory requirement that a plaintiff seeking to file suit against the state or one of its agency provide notice to the the Risk Management Division of the Department of Administrative Services and the would-be-defendant officials "in writing within 12 months of the date the loss was discovered or should have been discovered." See OCGA § 50-21-26.
OCGA § 9-33-99 provides for the tolling of the statute of limitations for a tort claim brought by the victim of a crime "which arises out of the facts and circumstances relating to the commission of such alleged crime" until the criminal prosecution has concluded. The Court of Appeals has held over time that § 9-33-99 applies to tort claims against any activity related to the criminal conduct, even if the plaintiff's claim is not against the criminal actor himself.
Writing for the Court of Appeals, Presiding Judge Doyle rejected the state's argument that § 9-3-99 does not apply to the ante-litem notice because it is not a statute of limitations. While there is a separate statute of limitations provision under the GTCA (§ 50-21-27), the Court of Appeals has historically applied infancy-tolling provisions (preventing a deadline to run against a would-be-plaintiff while they are a minor) against ante-litem notice requirements, since they effectively operate as a time bar in those circumstances. See 347 Ga. App. 827, 830 (2019).
The case has been assigned to the October argument calendar.
Denied
S19C0365. HOLLAND v. THE STATE (A18A1317)
S19C0407. BANKS v. HERRERA et al. (A18A1300)
S19C0412. MANNERS v. 5 STAR LODGE & STABLES, LLC et al. (A18A1227)
S19C0414. NIX v. CITY OF GRIFFIN FIRE DEPARTMENT et al. (A19D0104)
S19C0421. RIVERS v. THE STATE (A18A0971)
S19C0423. GLOVER v. GEORGIA POWER COMPANY (A18A1005)
S19C0425. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA et al. v. SCAPA DRYER FABRICS, INC. (A18A1173)
S19C0432. EVANS V. WRIGHT (A19A0403)
S19C0436. 2602 DEERFIELD, LLC v. PATEL et al. (A18A1232)
S19C0437. SHEFFIELD et al. v. CONAIR CORPORATION (A18A1032)
S19C0444. OCONEE COUNTY v. YORK et al. (A18A0934)
S19C0447. FRETT v. STATE FARM EMPLOYEE WORKERS’ COMPENSATION et al. (A18A0820)
S19C0450. IN RE: CURT THOMPSON (A18A0857)
S19C0459. HOMELIFE ON GLYNCO, LLC et al. v. GATEWAY CENTER COMMERCIAL ASSOCIATION, INC. (A18A0860)
S19C0462. COBBLE v. LOCKHART et al. (A19D0133)
S19C0474. MCKINSTRY v. THE STATE (A18A1335)
S19C0492. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA et al. v. SCAPA DRYER FABRICS, INC. (A18A1174)
Monday, June 3, 2019
Cert Petitions: June 3rd
The Court granted cert in just one case today, asking about the proper procedure for challenging pre-indictment protection based on the argument that the applicable statute of limitations has expired.
In Davis v. State, 347 Ga. App. 757 (2018), Dewey Davis was identified in March 2009 by DNA evidence implicating him in a rape from 1996. Davis was incarcerated on other crimes until June 2016, at which point he was briefly released before being detained (without indictment) on the rape charge. Davis filed a plea in bar alleging that he could not be prosecuted because the statute of limitations had run.
The Court of Appeals granted Davis's application for an interlocutory appeal, and held that a plea in bar was not the proper mechanism to challenge pre-indictment detention. OCGA 17-7-110 provides that pretrial motions like special pleas shall be filed within ten days of arraignment; in the absence of arraignment, the Court of Appeals reasoned, there could be no valid motion.
Instead, Judge Ray wrote, illegal detentions should be challenged using a writ of habeas corpus. Unlike a plea in bar, the writ is expressly intended as a mechanism to challenge the lawfulness of present confinement.
Judge McFadden dissented, arguing that Davis had been "charged" in the sense that he had been arrested on suspicion of a particular crime. While 17-7-110 establishes the deadline for filing a plea in bar, it does not set a date before which a motion may not be filed. Indeed, Judge McFadden argued, the Uniform Superior Court rules provide that "motions, demurrers, and special pleadings shall be made and filed at or before the time set by law." See USCR 31.1. Thus, even if a writ of habeas corpus was an appropriate remedy, so too was a plea in bar.
The order granting cert asks the following questions:
1. What is the appropriate method for an individual who has been detained but not yet indicted to challenge his pre-indictment detention on the basis that prosecution for the offense or offenses he is alleged to have committed is barred by an applicable statute of limitation?
2. Was Williams v. Reece, 288 Ga. 46, 47 (701 SE2d 188) (2010), correct when it stated that, because a claim by an unindicted detainee “that the statute of limitation for his indictment has expired” may be “raised in [his] pending prosecution, the claim may not serve as the basis for pre-trial habeas corpus relief”?
Justice Blackwell dissented from granting the petition.
The case will be set for the September 2019 Oral Argument Calendar.
Denied Petitions
S19C0293. WHITAKER FARMS, LLC v. FITZGERALD FRUIT FARMS, LLC (A18A1420)
S19C0294. WHITAKER FARMS, LLC v. FITZGERALD FRUIT FARMS, LLC (A18A1421)
S19C0341. PATTON v. CUMBERLAND CORPORATION (A18A1216)
S19C0363. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. REECE et al. (A18A1207)
S19C0375. CONNER v. THE STATE (A18A1023)
S19C0382. GUZZARDO v. MORONESE (A18A1096, A18A1097)
S19C0387. SAILEM v. THE STATE (A18A1012)
S19C0388. SEVCIK v. SMART (A19D0072)
S19C0395. SUNDY v. FRIENDSHIP PAVILION ACQUISITION CO. et al. (A19D0108)
S19C0401. BROWNING v. RABURN COUNTY BOARD OF COMMISSIONERS et al. (A18A0906)
S19C0403. REMLINGER v. CITY OF WOODSTOCK (A18A1237)
S19C0405. STEEDLEY v. STEEDLEY (A19A0326)
S19C0406. MALIBU BOATS, LLC et al. v. BATCHELDER et al. (A18A0881)
S19C0408. JOHNSON v. THE STATE (A19A0094, A19A0095)
S19C0467. BRANTLEY v. THE STATE (A18A2019)
S19C0974. 365 MARKET PLACE, LLC v. GSRAN-Z, LLC et al. (A18A2157)
In Davis v. State, 347 Ga. App. 757 (2018), Dewey Davis was identified in March 2009 by DNA evidence implicating him in a rape from 1996. Davis was incarcerated on other crimes until June 2016, at which point he was briefly released before being detained (without indictment) on the rape charge. Davis filed a plea in bar alleging that he could not be prosecuted because the statute of limitations had run.
The Court of Appeals granted Davis's application for an interlocutory appeal, and held that a plea in bar was not the proper mechanism to challenge pre-indictment detention. OCGA 17-7-110 provides that pretrial motions like special pleas shall be filed within ten days of arraignment; in the absence of arraignment, the Court of Appeals reasoned, there could be no valid motion.
Instead, Judge Ray wrote, illegal detentions should be challenged using a writ of habeas corpus. Unlike a plea in bar, the writ is expressly intended as a mechanism to challenge the lawfulness of present confinement.
Judge McFadden dissented, arguing that Davis had been "charged" in the sense that he had been arrested on suspicion of a particular crime. While 17-7-110 establishes the deadline for filing a plea in bar, it does not set a date before which a motion may not be filed. Indeed, Judge McFadden argued, the Uniform Superior Court rules provide that "motions, demurrers, and special pleadings shall be made and filed at or before the time set by law." See USCR 31.1. Thus, even if a writ of habeas corpus was an appropriate remedy, so too was a plea in bar.
The order granting cert asks the following questions:
1. What is the appropriate method for an individual who has been detained but not yet indicted to challenge his pre-indictment detention on the basis that prosecution for the offense or offenses he is alleged to have committed is barred by an applicable statute of limitation?
2. Was Williams v. Reece, 288 Ga. 46, 47 (701 SE2d 188) (2010), correct when it stated that, because a claim by an unindicted detainee “that the statute of limitation for his indictment has expired” may be “raised in [his] pending prosecution, the claim may not serve as the basis for pre-trial habeas corpus relief”?
Justice Blackwell dissented from granting the petition.
The case will be set for the September 2019 Oral Argument Calendar.
Denied Petitions
S19C0293. WHITAKER FARMS, LLC v. FITZGERALD FRUIT FARMS, LLC (A18A1420)
S19C0294. WHITAKER FARMS, LLC v. FITZGERALD FRUIT FARMS, LLC (A18A1421)
S19C0341. PATTON v. CUMBERLAND CORPORATION (A18A1216)
S19C0363. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. REECE et al. (A18A1207)
S19C0375. CONNER v. THE STATE (A18A1023)
S19C0382. GUZZARDO v. MORONESE (A18A1096, A18A1097)
S19C0387. SAILEM v. THE STATE (A18A1012)
S19C0388. SEVCIK v. SMART (A19D0072)
S19C0395. SUNDY v. FRIENDSHIP PAVILION ACQUISITION CO. et al. (A19D0108)
S19C0401. BROWNING v. RABURN COUNTY BOARD OF COMMISSIONERS et al. (A18A0906)
S19C0403. REMLINGER v. CITY OF WOODSTOCK (A18A1237)
S19C0405. STEEDLEY v. STEEDLEY (A19A0326)
S19C0406. MALIBU BOATS, LLC et al. v. BATCHELDER et al. (A18A0881)
S19C0408. JOHNSON v. THE STATE (A19A0094, A19A0095)
S19C0467. BRANTLEY v. THE STATE (A18A2019)
S19C0974. 365 MARKET PLACE, LLC v. GSRAN-Z, LLC et al. (A18A2157)
Monday, May 20, 2019
Cert Petitions: May 20
The Court granted just one cert petition today, Bowen et al. v. Savoy et al., S19C0278, asking whether a defendant seeking to open default under OCGA 9-11-55(b) must provide a reasonable explanation for his failure to file an answer.
OCGA 9-11-55 lays out the mechanisms by which a defendant can seek relief from default. Under 55(a), a defendant may open default as a matter of right within 15 days of entering default. After those 15 days have elapsed, the plaintiff can ask the court to enter judgement on the default ("default judgement"). At issue in Bowen is 55(b), which provides that at any time before the entry of final judgement, the defendant may petition to the court to open default for "providential cause," "excusable neglect," or other "proper case." See id.
Writing for the Court of Appeals below, then-Judge Bethel held that a trial court did not abuse its discretion in declining to open default without an adequate explanation of the failure to file an answer. In so holding, the Court of Appeals relied on a 2008 case authored by then-Judge Ellington which found a trial court did abuse its discretion in opening default under the "proper case" prong without an adequate explanation of the failure to answer. In that case, Judge Ellington wrote that the purpose of the "proper case" prong of 55(b) "is to permit the reaching out in every conceivable case where injustice might result if the default were not opened. Whatever that injustice might be, it may be avoided and the default opened under the ‘proper case’ analysis only where a reasonable explanation for the failure to timely answer exists. Requiring a reasonable excuse or explanation for opening the default on this ground is necessary, otherwise the trial court would not be acting within its discretion as required by OCGA § 9-11-55 (b)." See BellSouth Telecomm., Inc. v. Future Commc’n, Inc., 293 Ga. App. 247, 250 (2) (666 SE2d 699) (2008).
The case will be added to the September 2019 Oral Argument Calendar.
Denied Petitions
S19C0321. COOK V. DUENAS (A18A1114)
S19C0328. CITY OF CONYERS V. WILKINS et al. (A18A1400)
S19C0150. BRINKER V. THE STATE (A19I0008)
S19C0260. EDOKPOLOR et al. V. GRADY MEMORIAL HOSPITAL CORPORATION (A16A1031)
S19C0268. WILLIAMS V. MONSIEUR, INC. et al. (A18A1127)
S19C0286. HARRELL V. THE STATE (A19A0165)
S19C0299. MOSS V. THE STATE (A18A0976)
S19C0303. SHERWOOD et al. V. WILLIAMS et al. (A18A1338)
S19C0325. CORDASCO & COMPANY, P.C. V. RAHAL (A18A1364)
S19C0358. WILLIAM et al. V. MORRIS et al. (A18A0810)
OCGA 9-11-55 lays out the mechanisms by which a defendant can seek relief from default. Under 55(a), a defendant may open default as a matter of right within 15 days of entering default. After those 15 days have elapsed, the plaintiff can ask the court to enter judgement on the default ("default judgement"). At issue in Bowen is 55(b), which provides that at any time before the entry of final judgement, the defendant may petition to the court to open default for "providential cause," "excusable neglect," or other "proper case." See id.
Writing for the Court of Appeals below, then-Judge Bethel held that a trial court did not abuse its discretion in declining to open default without an adequate explanation of the failure to file an answer. In so holding, the Court of Appeals relied on a 2008 case authored by then-Judge Ellington which found a trial court did abuse its discretion in opening default under the "proper case" prong without an adequate explanation of the failure to answer. In that case, Judge Ellington wrote that the purpose of the "proper case" prong of 55(b) "is to permit the reaching out in every conceivable case where injustice might result if the default were not opened. Whatever that injustice might be, it may be avoided and the default opened under the ‘proper case’ analysis only where a reasonable explanation for the failure to timely answer exists. Requiring a reasonable excuse or explanation for opening the default on this ground is necessary, otherwise the trial court would not be acting within its discretion as required by OCGA § 9-11-55 (b)." See BellSouth Telecomm., Inc. v. Future Commc’n, Inc., 293 Ga. App. 247, 250 (2) (666 SE2d 699) (2008).
The case will be added to the September 2019 Oral Argument Calendar.
Denied Petitions
S19C0321. COOK V. DUENAS (A18A1114)
S19C0328. CITY OF CONYERS V. WILKINS et al. (A18A1400)
S19C0150. BRINKER V. THE STATE (A19I0008)
S19C0260. EDOKPOLOR et al. V. GRADY MEMORIAL HOSPITAL CORPORATION (A16A1031)
S19C0268. WILLIAMS V. MONSIEUR, INC. et al. (A18A1127)
S19C0286. HARRELL V. THE STATE (A19A0165)
S19C0299. MOSS V. THE STATE (A18A0976)
S19C0303. SHERWOOD et al. V. WILLIAMS et al. (A18A1338)
S19C0325. CORDASCO & COMPANY, P.C. V. RAHAL (A18A1364)
S19C0358. WILLIAM et al. V. MORRIS et al. (A18A0810)
Monday, May 6, 2019
Cert Petitions: May 6, 2019
The Court granted cert in just one case today, Hill, Kertscher, & Wharton LLP v. Moody, et al. (Case No. S18C1436). The case deals with waiver to the attorney client privilege in legal malpractice cases.
The plaintiffs sued the firm (HKW), complaining legal advice from the firm to oust the president of a California based aerospace company caused them to sue in Georgia and be sued in California, where HKW failed to raise important defenses to the action or disclose its prior representation of (and therefore conflict of interest concerning) the former company president. The conflict of interest lead to HKW's disqualification from the Georgia action and withdrawal from the California action. In the subsequent negligence action, HKW requested the client files of Holland & Knight LLP, the plaintiff's replacement counsel following HKW's disqualification.
The trial court denied Holland and Knight's request for a protective order, reasoning that the privilege was waived by the decision to sue HKW since both firms had represented the plaintiff's in the litigation
In Moody v. Hill, Kertscher & Wharton LLP v. Moody, et al., 346 Ga. App. 129 (2018), the Court of Appeals reversed. The court reasoned that while the privileged was certainly waived as between the plaintiffs and HKW, the decision to sue HKW did not waive the privilege as between plaintiffs and Holland & Knight. Unlike the cases relied on by the trial court, Holland & Knight's representation occurred after HKW's, and so the general rule that “an attorney is released from the obligations of secrecy when a client charges negligence, malpractice, or other professional misconduct" did not apply. Id. at 130 (citations omitted); compare Christenbury v. Locke Lord Bissell & Liddell, LLP, 285 F.R.D. 675, 683 (N.D. Ga. 2012).
The Court asked the parties to address "[whether] the Court of Appeals err[ed] in reversing the trial court’s
ruling that the plaintiff waived attorney-client privilege with respect to a non-party law
firm that also represented the plaintiff in relation to the underlying matter?"
The case is set for the September 2019 Oral Argument Calendar. Justice Peterson will not participate and Justice Ellington is disqualified.
Denied petitions
S19C0127. BRYANT V. HUDSON (A18I0240)
S19C0170. SNIPES V. THE STATE (A18A0941)
S19C0179. NORTON V. NORTON (A19D0058)
S19C0215. WILLIAMS ET AL. V. THE STATE (A18A0963)
S19C0229. PARSON V. DEKALB MEDICAL CENTER, INC. (A18A0932)
S19C0239. NICKSON V. EXPRESS SERVICES, INC. ET AL. (A19D0067)
S19C0244. WARE V. PINE STATE MORTGAGE CORP. ET AL. (A18A2156)
S19C0254. BROOKER V. SHIPMAN FAMILY INVESTMENTS (A19A0101)
S19C0255. SHIELDS V. THE STATE (A18A0940)
S19C0261. WALKER V. THE CITY OF AMERICUS ET AL. (A18A0173)
S19C0262. WRIGHT V. THE CITY OF AMERICUS ET AL. (A18A0121)
S19C0264. CARSWELL V. THE STATE (A18A0876)
S19C0265. MATSKO V. THE STATE (A18A0849)
S19C0306. DAVIS ET AL. V. NORTHSIDE HOSPITAL CHEROKEE (A18A1233)
S19C0318. BUSSEY V. THE STATE (A19A0317)
S19C0349. ROONEY V. THE STATE (A19A0285)
S19C0353. HAGGARD V. INGRAM ET AL. (A18A1229)
Denied petitions
S19C0127. BRYANT V. HUDSON (A18I0240)
S19C0170. SNIPES V. THE STATE (A18A0941)
S19C0179. NORTON V. NORTON (A19D0058)
S19C0215. WILLIAMS ET AL. V. THE STATE (A18A0963)
S19C0229. PARSON V. DEKALB MEDICAL CENTER, INC. (A18A0932)
S19C0239. NICKSON V. EXPRESS SERVICES, INC. ET AL. (A19D0067)
S19C0244. WARE V. PINE STATE MORTGAGE CORP. ET AL. (A18A2156)
S19C0254. BROOKER V. SHIPMAN FAMILY INVESTMENTS (A19A0101)
S19C0255. SHIELDS V. THE STATE (A18A0940)
S19C0261. WALKER V. THE CITY OF AMERICUS ET AL. (A18A0173)
S19C0262. WRIGHT V. THE CITY OF AMERICUS ET AL. (A18A0121)
S19C0264. CARSWELL V. THE STATE (A18A0876)
S19C0265. MATSKO V. THE STATE (A18A0849)
S19C0306. DAVIS ET AL. V. NORTHSIDE HOSPITAL CHEROKEE (A18A1233)
S19C0318. BUSSEY V. THE STATE (A19A0317)
S19C0349. ROONEY V. THE STATE (A19A0285)
S19C0353. HAGGARD V. INGRAM ET AL. (A18A1229)
Monday, April 29, 2019
Cert Petitions: April 29, 2019
The Court granted cert in two cases today: Norfolk Southern v. Railway Company v. Hartry et al. and Collins et al. v. Athens Orthopedic Clinic.
The first deals with whether negligence claims under the Federal Employers' Liability Act are precluded by regulations promulgated under the Federal Railroad Safety Act, and the second deals with whether plaintiffs in a data breach case have suffered legally compensable injury where they allege their data has been stolen by hackers, even if they have not yet suffered visible harms like identity theft or fraudulent charges.
Norfolk Southern Railway Company v. Winford Hartry et al.(S19C0008)
Norfolk Southern deals with whether a claim under the Federal Employers' Liability Act ("FELA"), which gives a railroad employee the right to sue his employer for injury caused by the company's negligence, is precluded by regulations under the Federal Railroad Safety Act ("FRSA") which cover the subject of the plaintiff's negligence claim.
In June 2010, the plaintiff was driving a train for Norfolk Southern Railway ("NS") when his train collided with a truck driven by Johnson (one of the defendant's below). For about a day leading up to the crash, the crossing gates were down, normally indicating that a train is approaching, at the public railway crossing. Witnesses reported that leading up to the crash drivers approaching the crossing had assumed the crossing gates were simply malfunctioning, and simply drove around them.
The plaintiff sued NS under FELA alleging their negligence caused the crossing gates to malfunction, which resulting in conduct like Johnson's and depriving the plaintiff of a reasonably safe place to work. NS successfully argued in the trial court that the plaintiff's FELA claims were precluded by regulations under the FRSA dealing specifically with the issue of malfunctioning crossing gates.
In Hartry v. Ron Johnson Jr. Enterprises, Inc., 347 Ga. App. 55 (2018), the Court of Appeals reversed, holding that the relevant FRSA regulations prescribed only minimum standards for dangerous conditions like malfunctioning crossing warning systems: "[t]he plain language of the regulation directs . . . a minimum requirement . . . It does not limit railway liability to its employee in the event that a railway was or should have been aware of a malfunction, which is what Hartry claims occurred in this case." Id. at 63. the Court of appeals acknowledged that many state and federal courts had deemed such FELA claims to be precluded, including Georgia precedent, but pointed out that since the United States' Supreme Court announced its two part preclusion test in POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014), many courts had altered course to hold FELA claims were not precluded by FRSA regulations. See, e.g. Norfolk Southern Ry. Co. v. Zeagler, 293 Ga. 582 (2013) (holding that FELA failure-to-train claims were not preempted by FRSA regulations requiring filing of operating rules with the FRA, but declining to specify the standard for conflict preclusion cases). The Court of Appeals rejected NS's arguments that under the FRSA regulations a railroad is not negligent in failing to fix a "false activation" of a crossing gate unless it has actual knowledge of the problem.
The question presented in the order granting certification is "Whether Hardy's claims under the Federal Employers' Liability Act, 45 U.S.C. 51 et seq., were precluded by a regulation under the Federal Railroad Safety Act, 49 U.S.C. 20101 et seq.?"
The case is set for the August 2019 Oral Argument Calendar.
Note: Three justices dissented from granting the cert petition in Norfolk Southern, including Justices Blackwell, Peterson, and Ellington.
Order Granting Cert: https://www.gasupreme.us/wp-content/uploads/2019/04/s19c0008.pdf
Collins et al. v. Athens Orthopedic Clinic
In Collins, a group of clinic patients brought a class action suit alleging negligence and related claims arising out of the data breach of the clinic's computer systems by a hacker known as the "Dark Overlord." The plaintiffs alleged "[a]s a direct and proximate result of [AOC's] negligence, Plaintiffs and other class members have suffered, or will suffer, damages, including the cost of identity theft protection and/or credit monitoring services and the costs associated with placing and maintaining a credit freeze on their accounts." See Collins v. Athens Orthopedic Clinic, 347 Ga. App. 13, 15 (2018). The trial court granted Athens Orthopedic Clinic (AOC)'s motion to dismiss without identifying the specific basis for the dismissal.
The Court of Appeals affirmed the dismissal, explaining that "[w]hile we have never addressed directly whether prophylactic costs anticipated or incurred to protect oneself against the threat of identity theft following a data breach constitute "loss or damage," in prior cases the Court had said that harm relating to wrongful disclosure of sensitive information was "too speculative to form the basis of recovery." See id. (citations omitted). Further, in toxic tort cases the Court had held that an "increased risk of cancer" and the need for "monitoring [for the development of adverse health consequences] in the future," were insufficient to state a cognizable claim under Georgia law. Thus "as in the context of medical monitoring in toxic tort cases, prophylactic measures such as credit monitoring and identity theft protection and their associated costs" are not "compensable injury" sufficient to support a negligence claim.
The Supreme Court granted cert, asking the parties to address "[d]id the Court of Appeals err in affirming the dismissal of the complaint on the ground that plaintiffs alleged a legally compensable injury?"
Judge McFadden dissented in part, arguing the majority opinion should not have pretermitted standing and simply dismissed for failure to state a claim. Judge McFadden would have reversed the trial court's undifferentiated dismissal on a finding that the plaintiff's did have standing, and remanded the case for further proceedings.
Note: Four justices dissented from granting the cert petition in Collins, including Justices Blackwell, Boggs, Peterson, and Ellington.
Order Granting Cert: https://www.gasupreme.us/wp-content/uploads/2019/04/s19c0007.pdf
Denied Petitions
S18C1620. IN RE ESTATE OF ROBERT ELLSWORTH JONES, JR. (A18A0783)
S18C1647. MCDONALD v. STEWART (A18A0304)
S19C0053. STANFORD et al. v. CITY OF ALBANY (A18A0699)
S19C0131. GRIFFIN v. CITY OF MILLEDGEVILLE (A18A1319)
S19C0148. YOUNG v. THE STATE (A19D0046)
S19C0159. COLE v. JASPER COUNTY BOARD OF COMMISSIONERS (A19D0030)
S19C0178. SMITH v. PEARCE (A19D0051)
S19C0188. ROBERTS v. THE STATE (A18A1835)
S19C0189. AUSTIN v. THE STATE (A18A1231)
S19C0192. WILLIAMS v. THE STATE (A18A0899)
S19C0202. SILVER COMET TERMINAL PARTNERS, LLC v. RTA STRATEGY, LLC et al. (A18A1026)
S19C0203. SILVER COMET TERMINAL PARTNER, LLC v. CHIP LAKE et al. (A18A1027)
S19C0207. ROLLINS v. ROLLINS (A18D0452)
S19C0212. JOHNSON v. WILCOX STATE PRISON et al. (A18A2093)
S19C0219. CORBETT v. ROLLINS (A18D0453)
S19C0237. FLINT TIMBER, LP v. AGSOUTH FARM CREDIT ACA (A18A0916)
S19C0845. ROBERTS v. THE STATE (A19A1047)
S19C0856. ROBERTS v. THE STATE (A18A1834)
The first deals with whether negligence claims under the Federal Employers' Liability Act are precluded by regulations promulgated under the Federal Railroad Safety Act, and the second deals with whether plaintiffs in a data breach case have suffered legally compensable injury where they allege their data has been stolen by hackers, even if they have not yet suffered visible harms like identity theft or fraudulent charges.
Norfolk Southern Railway Company v. Winford Hartry et al.(S19C0008)
Norfolk Southern deals with whether a claim under the Federal Employers' Liability Act ("FELA"), which gives a railroad employee the right to sue his employer for injury caused by the company's negligence, is precluded by regulations under the Federal Railroad Safety Act ("FRSA") which cover the subject of the plaintiff's negligence claim.
In June 2010, the plaintiff was driving a train for Norfolk Southern Railway ("NS") when his train collided with a truck driven by Johnson (one of the defendant's below). For about a day leading up to the crash, the crossing gates were down, normally indicating that a train is approaching, at the public railway crossing. Witnesses reported that leading up to the crash drivers approaching the crossing had assumed the crossing gates were simply malfunctioning, and simply drove around them.
The plaintiff sued NS under FELA alleging their negligence caused the crossing gates to malfunction, which resulting in conduct like Johnson's and depriving the plaintiff of a reasonably safe place to work. NS successfully argued in the trial court that the plaintiff's FELA claims were precluded by regulations under the FRSA dealing specifically with the issue of malfunctioning crossing gates.
In Hartry v. Ron Johnson Jr. Enterprises, Inc., 347 Ga. App. 55 (2018), the Court of Appeals reversed, holding that the relevant FRSA regulations prescribed only minimum standards for dangerous conditions like malfunctioning crossing warning systems: "[t]he plain language of the regulation directs . . . a minimum requirement . . . It does not limit railway liability to its employee in the event that a railway was or should have been aware of a malfunction, which is what Hartry claims occurred in this case." Id. at 63. the Court of appeals acknowledged that many state and federal courts had deemed such FELA claims to be precluded, including Georgia precedent, but pointed out that since the United States' Supreme Court announced its two part preclusion test in POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014), many courts had altered course to hold FELA claims were not precluded by FRSA regulations. See, e.g. Norfolk Southern Ry. Co. v. Zeagler, 293 Ga. 582 (2013) (holding that FELA failure-to-train claims were not preempted by FRSA regulations requiring filing of operating rules with the FRA, but declining to specify the standard for conflict preclusion cases). The Court of Appeals rejected NS's arguments that under the FRSA regulations a railroad is not negligent in failing to fix a "false activation" of a crossing gate unless it has actual knowledge of the problem.
The question presented in the order granting certification is "Whether Hardy's claims under the Federal Employers' Liability Act, 45 U.S.C. 51 et seq., were precluded by a regulation under the Federal Railroad Safety Act, 49 U.S.C. 20101 et seq.?"
The case is set for the August 2019 Oral Argument Calendar.
Note: Three justices dissented from granting the cert petition in Norfolk Southern, including Justices Blackwell, Peterson, and Ellington.
Order Granting Cert: https://www.gasupreme.us/wp-content/uploads/2019/04/s19c0008.pdf
Collins et al. v. Athens Orthopedic Clinic
In Collins, a group of clinic patients brought a class action suit alleging negligence and related claims arising out of the data breach of the clinic's computer systems by a hacker known as the "Dark Overlord." The plaintiffs alleged "[a]s a direct and proximate result of [AOC's] negligence, Plaintiffs and other class members have suffered, or will suffer, damages, including the cost of identity theft protection and/or credit monitoring services and the costs associated with placing and maintaining a credit freeze on their accounts." See Collins v. Athens Orthopedic Clinic, 347 Ga. App. 13, 15 (2018). The trial court granted Athens Orthopedic Clinic (AOC)'s motion to dismiss without identifying the specific basis for the dismissal.
The Court of Appeals affirmed the dismissal, explaining that "[w]hile we have never addressed directly whether prophylactic costs anticipated or incurred to protect oneself against the threat of identity theft following a data breach constitute "loss or damage," in prior cases the Court had said that harm relating to wrongful disclosure of sensitive information was "too speculative to form the basis of recovery." See id. (citations omitted). Further, in toxic tort cases the Court had held that an "increased risk of cancer" and the need for "monitoring [for the development of adverse health consequences] in the future," were insufficient to state a cognizable claim under Georgia law. Thus "as in the context of medical monitoring in toxic tort cases, prophylactic measures such as credit monitoring and identity theft protection and their associated costs" are not "compensable injury" sufficient to support a negligence claim.
The Supreme Court granted cert, asking the parties to address "[d]id the Court of Appeals err in affirming the dismissal of the complaint on the ground that plaintiffs alleged a legally compensable injury?"
Judge McFadden dissented in part, arguing the majority opinion should not have pretermitted standing and simply dismissed for failure to state a claim. Judge McFadden would have reversed the trial court's undifferentiated dismissal on a finding that the plaintiff's did have standing, and remanded the case for further proceedings.
Note: Four justices dissented from granting the cert petition in Collins, including Justices Blackwell, Boggs, Peterson, and Ellington.
Order Granting Cert: https://www.gasupreme.us/wp-content/uploads/2019/04/s19c0007.pdf
Denied Petitions
S18C1620. IN RE ESTATE OF ROBERT ELLSWORTH JONES, JR. (A18A0783)
S18C1647. MCDONALD v. STEWART (A18A0304)
S19C0053. STANFORD et al. v. CITY OF ALBANY (A18A0699)
S19C0131. GRIFFIN v. CITY OF MILLEDGEVILLE (A18A1319)
S19C0148. YOUNG v. THE STATE (A19D0046)
S19C0159. COLE v. JASPER COUNTY BOARD OF COMMISSIONERS (A19D0030)
S19C0178. SMITH v. PEARCE (A19D0051)
S19C0188. ROBERTS v. THE STATE (A18A1835)
S19C0189. AUSTIN v. THE STATE (A18A1231)
S19C0192. WILLIAMS v. THE STATE (A18A0899)
S19C0202. SILVER COMET TERMINAL PARTNERS, LLC v. RTA STRATEGY, LLC et al. (A18A1026)
S19C0203. SILVER COMET TERMINAL PARTNER, LLC v. CHIP LAKE et al. (A18A1027)
S19C0207. ROLLINS v. ROLLINS (A18D0452)
S19C0212. JOHNSON v. WILCOX STATE PRISON et al. (A18A2093)
S19C0219. CORBETT v. ROLLINS (A18D0453)
S19C0237. FLINT TIMBER, LP v. AGSOUTH FARM CREDIT ACA (A18A0916)
S19C0845. ROBERTS v. THE STATE (A19A1047)
S19C0856. ROBERTS v. THE STATE (A18A1834)
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