Notable Opinions: December 23

The Court issued two notable opinions today: the first dealing with data breach litigation, the second with whether federal regulations may preclude an action under a federal statute. 

Collins v. Athens Orthopedic Clinic, PA

Collins deals with the ability of plaintiffs to bring claims against allegedly negligent companies following a data breach in which the plaintiffs' information was compromised. Specifically, whether plaintiffs who have not yet suffered identity theft have nonetheless sufficiently alleged "harm" to survive a motion to dismiss. 

Background

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 Decision Below

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.

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.

The Court's Decision

Writing for the Court, Justice Peterson held that the Plaintiffs had indeed alleged cognizable injury. The caselaw the Court of Appeals relied on in their decision below, Justice Peterson wrote, was inapplicable for two reasons. First, those decisions were not issued in the context of a motion to dismiss. As a result, the failure of Plaintiffs in those cases to produce evidence of harm did not necessarily mean that the Plaintiff's in this case could not adequately allege harm along the same lines. Second, none of the Court of Appeals' previous data breach cases had dealt with deliberate criminal theft for the purpose of selling the data to other criminals. As a result, whereas in those cases "[t]o conclude that the claimants [in those cases] would likely suffer identity theft as a result of the opposing parties' actions would have required a long series of speculative inferences," here, no such inferential chain was necessary. As the United States Court of Appeals for the 7th Circuit put it "[w]hy else would hackers break into a store's database and steal consumers' private information? Presumably, the purpose of the hack is, sooner or later, to make fraudulent charges or assume those consumers' identities." Remijas v. Neiman Marcus Group, 794 F.3d 688, 693 (7th Cir. 2015). 

Thus, the Court held, data breach plaintiffs may be able to allege cognizable harm. "Construing the plaintiffs’ allegations — particularly that criminals are able to assume their identities fraudulently as a result of the data breach and that the risk of such identity theft is 'imminent and substantial' — in the light most favorable to the plaintiffs, we cannot say that the plaintiffs will not be able to introduce sufficient evidence of injury within the framework of the complaint." 

Importantly, Justice Peterson explained that the Court's decision did not depend on the allegation that they had spent money on measures like identity theft protection: "[a]lthough this may represent all or some measure of the plaintiffs’ damages to date, their allegation that the criminal theft of their personal data has left them at an imminent and substantial risk of identity theft is sufficient at this stage of the litigation."

Norfolk Southern Railway Company v. Hartry et al 

Norfolk Southern poses the question of whether claims under the Federal Employers Liability Act ("FELA") are precluded by regulations issued pursuant to the Federal Railroad Safety Act ("FRSA") - the Court held today they are not.

Background 

In June 2010 the gates at a public railway crossing were down for an extended period of time, such that cars approaching the crossing began to simply drive around them in the belief no trains were approaching. One such driver pulled around the gates, causing an accident which injured Harty, the train's driver (and Plaintiff in the case).

Proceedings Below 

As relevant here, Hartry sued Norfolk Southern under FELA alleging it had failed to maintain the crossing gates, resulting in an unsafe work environment. The trial court granted summary judgement to Norfolk Southern on the ground that the FRSA precluded FELA claims. The Court of Appeals reversed, and the Supreme Court granted certiorari.

The Court's Decision 

Writing for the Court, Justice Bethel wrote that FELA claims are not precluded by FERSA.

FELA provides railroad employees with a federal cause of action for injuries resulting for the negligence of a railroad. FRSA, by contrast, was enacted to promote railroad safety generally (i.e. not limited to employees) by granting the Secretary of Transportation power to make rules and regulations. Importantly, the FRSA has no private right of action, so the only persons with power to enforce its provisions are the Secretary of Transportation, the States, and the Attorney General.

In rejecting Norfolk Southern's preclusion argument, Justice Bethel noted that while the FRSA has an express preemption to prevent state law from interfering with national uniformity, it contains no provision to displace other federal laws operating in the same area. Further, while there is language in the statute speaking to the need for national uniformity in Railroad safety laws,this provision is found in the law's preemption provision. Without any textual indication of preclusion, it is conceivable that Congress could provide for overlapping causes of action. This is particularly true in light of the fact that FELA and the FLSA have coexisted for decades with no action to change their relationship.

The full opinion is available here.

Life Sentences and Murder Convictions

S19G0472. WILKERSON v. THE STATE

S19A0992, S19A1006. NICHOLSON v. THE STATE (two cases)
S19A0995. THE STATE v. RUMPH
S19A1017. BULLARD v. THE STATE
S19A1087. BALLIN v. THE STATE
S19A1215. MCGUIRE v. THE STATE
S19A1248. JONES v. THE STATE
S19A1280. CASH v. THE STATE
S19A1334. SPENCE v. THE STATE
S19A1342. REED v. THE STATE
S19A1344. CLARK v. THE STATE
S19A1396. DENSON v. THE STATE
S19A1504. RAMIREZ v. THE STATE
S19A1582. GEBHARDT v. THE STATE
S20A0100. DOZIER v. THE STATE

Attorney Discipline Cases

S19Y0831 IN THE MATTER OF SCOTT D. BENNETT
S19Z1567 IN THE MATTER OF SANDRA M. FULLER
S20Y0289 IN THE MATTER OF SARAH MALLAS WAYMAN

Notable Opinions: November 18

Murder Convictions

S19A1146. HOLMES v. THE STATE
S19A1201. MORRALL v. THE STATE
S19A1226. JORDAN v. THE STATE
S19A1586. CARTER v. THE STATE

Attorney Discipline Cases

S19Y1471. IN THE MATTER OF CARLA BURTON GAINES
S20Y0335. IN THE MATTER OF NATASHA SIMONE WHITE

Notable Opinions: November 4

Murder Convictions and Life Sentences

S19A1086. HENRY v. THE STATE
S19A1109. HOWARD v. THE STATE
S19A1129. GUERRERO v. THE TATE
S19A1171. MOORE v. THE STATE
S19A1264. JONES v. THE STATE
S19A1332. MATTEI v. THE STATE
S19A1436. HOPWOOD v. THE STATE

Attorney Discipline Cases

S19Y1156. IN THE MATTER OF MILLARD C. FARMER, JR.
S19Y1329. IN THE MATTER OF JOEL S. WADSWORTH
S19Y1553. IN THE MATTER OF NEVADA MICHAEL TUGGLE
S20Y0079. IN THE MATTER OF WILLIAM LESLIE KIRBY III

Notable Opinions: October 21

The Court issued three notable opinions yesterday. The first deals with the 4th Amendment implications of the warrantless collection of Airbag Control Module crash data, the second with the randomness provision of Georgia's grand-jury selection law, and the third with when a promise by a public entity can become part of their employees' contracts.


Mobley v. State

In Mobley, the Court held that (1) downloading crash data from an airbag control module is a "search" within the meaning of the Fourth Amendment, and that (2) for the inevitable discovery rule to apply, "there must be a reasonable probability that the evidence would have been discovered by lawful means" which the police were pursuing "prior to the occurrence of the illegal conduct."

The case involves a fatal car crash in which officers on the scene obtained crash data from the airbag control module ("ACM") in Mobley's vehicle. The ACM showed that Mobley had been traveling at 97 miles per hour five seconds before the airbag deployed, well above the posted speed limit of 45 miles per hour. The trial court denied Mobley's motion to suppress the crash data, and Mobley was convicted of vehicular homicide.

1. Downloading data from an airbag control module is a search. 

Much like the opinion of the United States Supreme Court in Carpenter v. United States, the opinion in Mobley evaluates the 4th Amendment question under both a "property approach," and the "reasonable expectation of privacy" test announced in Katz v. United States.

The property-based approach looks to the text of the Fourth Amendment, which refers to the right to be secure in one's "persons, houses, papers, and effects." Writing for the Court, Justice Blackwell explained that "[f]or much of our history, the Fourth Amendment was understood to be concerned only with government trespasses upon the rights of individuals under the common law to be secure in their ‘persons, houses, papers, and effects.’” From this standpoint, “[a] personal motor vehicle is plainly among the ‘effects’ with which the Fourth Amendment – as it historically was understood – is concerned, and a physical intrusion into a personal motor vehicle for the purpose of obtaining information for a law enforcement investigation generally is a search for purposes of the Fourth Amendment under the traditional common law trespass standard.”

Downloading ACM data was also a search under the reasonable expectation of privacy test. Reversing the Court of Appeals on this point, Justice Blackwell wrote that the "constitutional preference for warrants is so strong that searches and seizures without a warrant ‘are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and  well-delineated exceptions,” and "the state has failed to identify any recognized exception" here.

2. The inevitable discovery rule only applies to means of discovery officers are pursuing at the time the warrantless search occurs. 

The state argued that even if downloading ACM data was a search, the trial court was still correct not to suppress the evidence because the officers would have inevitably discovered the information under a valid warrant they obtained the next day. With officers seeking and obtaining an otherwise valid warrant, the state argued, whether the original search itself was illegal has no practical consequence.

The Court rejected the "belt and suspenders" practice of search-first and obtain-a-warrant-later.  In prior cases, the Court has explained that there must be a reasonable probability the evidence would have been discovered by lawful means which were "possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct."Since there was no evidence in the record that the officers on the scene were preparing or even contemplating a warrant application, the inevitable discovery rule did not apply.

The full opinion is available here.


The State v. Towns

In Towns, the Court affirmed a trial court's decision to dismiss an indictment where the selection of grand jurors was not "random" within the meaning of OCGA 15-12-66.1 ("the grand jury provision").

Under the grand jury provision, whenever there is an insufficient number of persons available to empanel a grand jury, the judge shall order the clerk to choose however many grand jurors are needed from the list of persons summoned as trial jurors. But the clerk must select the substitute grand jurors "at random."

When this situation occurred in Towns case, the clerk examined a list of people summoned to appear as trial jurors the next day, identifying four candidates she knew could be contacted quickly and were likely available to report immediately. The trial court dismissed the indictment, finding that even though the clerk did not have any ill intent, "her reasoning of selecting those individuals" was not random.

The Supreme Court affirmed, holding that a selection process is "random" when "each candidate for selection has an equal probability of being chosen." At bare minimum, "the clerk must employ a selection process that produces choices that are substantially unpredictable and not meaningfully susceptible to the conscious influence of the clerk or other court personnel." The selection is certainly not random where "the clerk relied on her personal knowledge of the prospective petit jurors" contact information and availability.

The opinion did draw a dissent. Justices Ellington and Boggs agreed that the selection was not random, but believed dismissing the indictment was too harsh a remedy. Randomness, Justice Ellington wrote, "is not such an 'essential and substantial'" component of the statutory scheme "that a violation requires the invalidation of every indictment issued by the resulting grand jury." The clerk "substantially complied with the law," the dissenters wrote, and so they would reverse the order quashing the indictment.

The full opinion is available here.


Dekalb County School District v. Gold et al.

In Gold the Court held that an agreement to provide two-years advance notice to employees of Dekalb County Schools of any plan to suspend contributions to their Tax-Sheltered Annuity Plan ("TSA") had become part of the employees' contracts, and the District could therefore be liable for breach of that agreement.

Writing for the Court, Chief Justice Melton held that the agreement became part of the contract because “the record shows that Appellants offered their employees a retirement benefits plan, and also promised to provide two years’ notice before reducing any of the funding provisions of the benefits plan. In exchange, the employees agreed to begin to work or continue to work for Appellants, and to wait until their retirement to collect these funds. That bargain contemplated the necessary consideration flowing from both parties, thus making the two-year notice provision a part of Appellees’ employment contracts.”

The full opinion is available here.

Affirming Murder Convictions and Life Sentences

ANDERSON V. THE STATE (S19A0682)
CAUSEY V. THE STATE (S19A0957)
 LEILI V. THE STATE (S19A0541)
MCKINNEY V. THE STATE (S19A0908)
MOHAMED V. THE STATE (S19A0705)
POWELL V. THE STATE (S19A0721)
SMITH V. THE STATE (S19A0749)
THORNTON V. THE STATE (S19A0755)

Notable Opinions: October 7

The Court issued three notable opinions today: the first deals with Georgia's conceal and carry laws; the second deals with the appropriate standard of appellate review of jury awards on damages; and the third deals with a defendant's right to have a jury instructed on an affirmative defense for which he does not admit the facts charged.


Georgiacarry.org, Inc. v. Atlanta Botanical Garden

GeorgiaCarry.org is a case about the exceptions to Georgia's conceal and carry law, i.e., when an establishment may lawfully prohibit anyone other than a police officer from carrying a firearm on the premises.

The plaintiff organization represents persons holding conceal and carry licenses, here wishing to exercise their carry rights in the Atlanta Botanical Gardens. This, they claim, based on O.C.G.A. 16-11-127(c), which permits a person with a valid permit to carry a firearm anywhere not expressly excluded under the statute. The Botanical Gardens claim the statute provides them such an exception, allowing "private property owners or persons in legal control of private property through a lease, rental agreement, licensing agreement [etc.] . . . the right to exclude or eject a person who is in possession of a weapon." See id. 

The question presented, therefore, was "whether O.C.G.A. 16-11-127(c) permits a private organization that leases property owned by a municipality to prohibit the carrying of firearms on the leased premises?" (emphasis added).

Writing for the Court, Justice Bethel concluded that property is only "private" for purposes of the exception if the present estate in land is held by a private person; it is not enough for a private person to lease public publicly owned land. "The Court of Appeals was undoubtedly correct that the Garden has property rights in the property it leases from the City of Atlanta . . . . But that does not answer the question of whether, by virtue of the rights granted by the lease, the Garden has an 'estate' in the property." However, this conclusion begs the question of what estate in land the terms of the lease provide for -- and the lease was not included in the record on appeal. Thus, Justice Bethel wrote, the case must be remanded for further proceedings.

Justice Peterson wrote separately to say that if the lower courts found on remand that the exception did not apply to the botanical gardens, then the 2014 amendment to Georgia's conceal and carry law (which provides the language considered in the Opinion for the Court) could raise a constitutional issue about a law retroactively impairing  property rights. See, e.g., Ga. Const. Art I, Sec. I, Paragraph X ("No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of contract or making irrevocable grant of special privileges or immunities shall be passed.”). Specifically, "the amendment [would destroy] a portion of the right to exclude others from one's property," which is one of the core rights a person can have in their property.

Perhaps signaling cases to come, Justice Peterson wrote: "[i]t should not go without noting that the consequence of our decision today is that the amendment likely was unconstitutional in almost all of its applications when it first became effective, and probably in some that still remain."

The Chief Justice and Justice Ellington did not participate in the consideration of the case.


Rockdale Hospital LLC v. Evans

Evans deals with the proper standard of appellate review for jury verdicts on damages.

The jury awarded over $1 million in past medical expenses, but nothing for future expenses, wages, and pain and suffering. Plaintiff sought additur on these latter categories, contending that the verdict was so clearly inadequate as to be inconsistent with the weight of the evidence. The trial court denied the motion, but the Court of Appeals reversed, concluding that a preponderance of the evidence did not support the award.

On cross-petitons for certiorari, the Court held that the Court of Appeals applied the incorrect standard of review: rather than a preponderance of the evidence, the proper standard in appellate review of damage awards is whether the trial court abused its discretion as to additur or remititur.


McClure v. State

McClure deals with whether a defendant who does not admit the facts charged is nonetheless entitled to have jurors instructed on the law of self-defense. Writing for the Court, Justice Ellington held the answer is yes. 

The Court of Appeals held that, because an affirmative defense admits the conduct but denies some other element of the crime (often an intent element), self-defense need only be charged if the defendant admits the conduct bringing it into play. 

"A criminal defendant is not required to 'admit' anything, in the sense of acknowledging that any particular facts are true, in order to raise an affirmative defense." Instead, he may "[accept] for the sake of argument that he committed the act alleged in a charge, the defendant may do so only for the limited purpose of raising the affirmative defense at issue." The fact that an affirmative defense is implicated where conduct is admitted does not answer the question of whether it must be affirmatively admitted, or admitted for the sake of argument. "Criminal defendants, like other litigants, are entitled to pursue alternative theories, even when those theories are inconsistent."

Writing separately, Justice Nahmias wrote that "[i]t is important to recognize, however, that what the law allows may be bad strategy for a defendant." Instead, "[p]resenting inconsistent defenses to the jury, particularly when the evidentiary support for one defense is considerably weaker than for others . . . risks losing credibility for all of the defenses."

Notable Opinions August 19

The Court issued one notable opinion today, addressing when a child charged with a felony must be tried in the juvenile courts instead of superior courts.

In State v. Coleman, the Court held today that the 180-day time limitation in OCGA § 17-7-50.1, providing that within the state must return a grand jury indictment or else the case will be transferred to the juvenile court, does not apply to a juvenile who is released and remains on bond. Writing for a unanimous Court, Chief Justice Melton wrote that the transfer rule is only triggered if the child is detained for 180 days, and the child is only "detained" if he is in the physical custody of the state fort he statutory period. Thus, if the child is released on bond, he is not "detained," and the time limit does not expire.

The full opinion is available here.


Affirming Murder Convictions

S18G1644. SCOTT v. THE STATE
S19A0490. MCCAMMON v. THE STATE
S19A0559. HOLMES v. THE STATE
S19A0603. THE STATE v. COLEMAN
S19A0618. MOORE v. THE STATE
S19A0635. MARTIN v. THE STATE  
S19A0659. COOPER v. THE STATE
S19A0683. GLENN V. THE STATE
S19A0694. SMITH v. THE STATE
S19A0695. DANIELS v. THE STATE
S19A0715. FOREMAN v. THE STATE
S19A0723. JACOBS v. THE STATE
S19A0791. COX v. THE STATE
S19A0801. BLACKWELL v. THE STATE
S19A0818. WALKER v. THE STATE
S19A0854. FOSTER v. THE STATE  
S19A0880. DAVIS v. THE STATE
S19A0924. WORTHEN v. THE STATE
S19A0947. MACK v. THE STATE
S19A0954. ROBINSON V. THE STATE

Attorney Discipline 

S19Y0873. IN THE MATTER OF CHRISTOPHER JOHN THOMPSON 
S19Y1128. IN THE MATTER OF PHILLIP NORMAN GOLUB
S19Y1192. IN THE MATTER OF CHARLES EDWARD TAYLOR

Notable Opinions: June 28

The Court issued notable opinions in two criminal cases today. The first deals with the required "knowledge" element of a felony hit-and-run offense, and the second clarifies what a criminal defendant must show to establish standing to challenge the admissibility of evidence obtained by an illegal search. 

The State v. Mondor

In Mondor, the Court held that a hit-and-run indictment that fails to specifically allege knowledge of involvement in an accident is not subject to dismissal by general demurrer. Writing for the Court, Justice Warren held that "OCGA § 40-6-270 requires knowledge of an accident that resulted in at least one of three enumerated consequences: injury, death, or damage . . . because Count 2 recites the statutory language setting out all of the elements of subsections (a) and (b) of OCGA § 40-6-270, including the mens rea element, that count is sufficient to withstand a general demurrer."

Read the full opinion here

Bourassa v. State

In Bourassa, the Court clarified what a defendant must show to establish standing to challenge the admission of evidence obtained by an illegal search. Writing for the Court, Justice Warren explained that a defendant may rely on evidence offered by the state (such as testimony a voice on the phone was the defendant's). While "the Court of Appeals was correct to the extent it suggested that Bourassa could not rely on a mere position, contention, or theory of the State" to establish standing, uncontested evidence submitted by the state is sufficient.

Read the full opinion here
 

 

Murder Convictions 

S18G0976. BUDHANI v. THE STATE

S19A0331. ELKINS v. THE STATE

Notable Opinions: June 24

The Court issued two notable opinions today, the first dealing with the assertion of sovereign immunity among subdivisions of the state, and the second addressing the meaning of revisions to Georgia's anti-SLAPP statute.

City of College Park v. Clayton County

The Supreme Court of Georgia has unanimously ruled that sovereign immunity does not apply to a lawsuit brought by the City of College Park against Clayton County. The case involves a dispute between College Park and Clayton County over their shares of tax revenue from alcohol sold at Hartsfield-Jackson Atlanta International Airport. Writing for the Court, Chief Justice Melton held that “the County is not a sovereign over the City, and the City is not a sovereign over the County . . . . Neither entity retains a superior authority over the other that would prevent it from being hailed into a court of law by the other.”

Read the full opinion here

Wilkes & McHugh P.A. Et Al. v. LTC Consulting, L.P. 

Wilkes deals with  the General Assembly’s 2016 revisions to Georgia's anti-SLAPP ("strategic lawsuits against public participation") statute, OCGA § 9-11- 11.1. Like the revisions to the evidence code, the Court noted that the 2016 amendment to the anti-SLAPP substantially revised the statute to track California’s anti-SLAPP procedure. Thus, Justice Boggs wrote for the Court, "[the Court's] precedents construing the pre-amendment version of § 9-11-11.1 are of limited utility." The new statute significantly changes the procedural mechanism for challenging SLAPPs at the outset of litigation. “First, the court must decide whether the party filing the anti-SLAPP motion . . . has made a threshold showing that the challenged claim is one ‘arising from’ protected activity,” usually meaning that “[t]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” Second, the Court must decide whether the plaintiff has established that there is a probability that the plaintiff will prevail on its claim. Only a claim that satisfies both prongs is a SLAPP.

Read the full opinion here


Murder Convictions
S19A0018. BOYD v. THE STATE
S19A0042. VASQUEZ v. THE STATE
S19A0047. BRANT v. THE STATE
S19A0069. HENRY v. SPIVEY
S19A0116. FLEMING v. THE STATE
S19A0166. VENTURINO v. THE STATE
S19A0231. JACKSON v. THE STATE 
S19A0373. TAYLOR v. THE STATE
S19A0418 . BANNISTER v. THE STATE

Notable Opinions: June 10

The Court issued two notable opinions today, the first dealing with appellate procedure when a trial court fails to issue a certificate of immediate review, and the second concerning the introduction of prior-false-accusation testimony in a sexual assault case.

Duke v. State

In Duke, the Court dismissed a request to appeal the trial court's decision denying state funds to pay expert witnesses in his defense. The underlying issue concerns a defendant's access to state funds to be used in his defense when he obtains pro-bono rather than state-appointed counsel. The case is notable, however, because the Court overruled its 2000 decision in Waldrip v. Head. 

Waldrip held that the Georgia Supreme Court had "inherent authority" to decide to hear an interlocutory appeal. OCGA 5-6-34 et seq. provides the basic mechanisms of appellate review, providing that if an order is not "final" (meaning there are issues or parties remaining in the case) a party seeking appellate review must obtain a certificate of immediate review from the trial court. If the trial court grants the certificate within 10 days, then the plaintiff may ask the Court of Appeals or Supreme Court (as appropriate) to review the case. If the trial court does not issue the certificate, however, the would-be-appellant is out of luck; there is no other mechanism for interlocutory appeal, and the statute does not provide for review of the failure to issue the certificate. Waldrip purported to allow a party whose certificate had been denied to go directly to the Supreme Court and ask for review.

In overruling Waldrip, the Court reasoned that the statutory requirements for interlocutory appeal are jurisdictional. The Court rejected the notion that it had power to  override the General Assembly's policy choice to prioritize the trial court's discretion in the interlocutory appeal process over the efficiency of hearing an appeal right away.

Read the full opinion here

State v. Burns

Burns deals with the admissibility of evidence that the alleged victim of sexual assault crimes has made false accusations before. In Smith v. State, 259 Ga. 135 (1989) the Court held that a defendant in a prosecution for sexual offenses may introduce evidence that the alleged victim has made false accusations in the past, both to attack their credibility and to prove the defendant's innocence. The Smith court relied both on the evidence code (OCGA 24-4-403, allowing for the exclusion of relevant evidence where its probative value is substantially outweighed by the risk of undue prejudice) and the defendant's constitutional rights to confront witnesses against him and present a full defense.

Writing for the Court, Justice Benham held that Smith's constitutional holding swept too broadly and must be overruled, but affirmed the Court of Appeals' ruling on admissibility because Smith's interpretation of the rape shield law survived the passage of the new evidence code. The opinion criticizes Smith's lack of nuance and analysis, explaining:

[t]he holding was reached without any meaningful analysis and without consideration of whether the relevant rules of evidence (or other applicable statutes) could pass muster under the Sixth and Fourteenth Amendments; our blanket holding that rules of evidence must ‘yield’ to constitutional concerns – and must permit the admission of evidence that may be considered for both impeachment and as substantive evidence – was unwarranted and incorrect.”

Indeed, Justice Benham wrote, the United States Supreme Court has explained that the rules of evidence permit trial judges to exclude evidence based on the judgement that it's probativity was overborne by other factors. 

Read the full opinion here


Murder Convictions

S18G1007. MCKIE v. THE STATE
S19A0118, S19A0119. BROXTON v. THE STATE (two cases)
S19A0164, S19A0416. DAVIS v. THE STATE (two cases)
S19A0360. SWANSON v. THE STATE
S19A0367. CLARK v. THE STATE
S19A0605. COOPER v. THE STATE
S19A0674. TOOKES v. THE STATE
S19A0790, S19A0907. STROZIER v. THE STATE (two cases)
S19Y0792. IN THE MATTER OF LESLEY ANNIS
S19Y0823. IN THE MATTER OF ALEXANDER E. KAHN

Notable Opinions: June 3rd

The Court issued two notable opinions today, one involving the procedure for granting a general demurrer, the other clarifying the "acceptance doctrine" in response to a certified question from the United States District Court for the Middle District of Georgia. 

The State v. Williams S19A0185

In Williams, the Court reversed the dismissal of a felony murder charge, holding that the trial court (by virtue of a number of pending motions being considered together) improperly considered evidence adduced at a hearing in granting a general demurrer. A general demurrer “challenges the sufficiency of the substance of the indictment,” a court asks whether the defendant “can admit each and every fact alleged in the indictment and still be innocent of any crime.” In reasoning that a person does not "distribute" heroin within the meaning of OCGA 16-13-30(b) by simply injecting it into a consenting person, Justice Blackwell explained, the trial court relied on findings about the state's theory not evident on the face of the indictment. Importantly, the court clarified in a footnote, the procedural misstep did not necessarily mean the trial court incorrectly interpreted the statute. 

The full opinion is available at https://www.gasupreme.us/wp-content/uploads/2019/06/s19a0185.pdf

Thomaston Acquisitions v. Piedmont Construction Group

In Thomaston Acquisitions, the Court addressed when the "acceptance doctrine" applies as a defense to negligent construction against subsequent purchasers of the property. In this case, Piedmont Construction Group ("PCG") sought to defend against Thomaston Acquisition's ("TA") claims of negligent construction. The United States District Court of the Middle District of Georgia certified the question to the Court, asking (1) whether the doctrine applied, and, if so, (2) to whom must the defect be "readily observable on reasonable inspection," the original owner, or the subsequent purchaser?

The acceptance doctrine provides that once a constructed property has been accepted by the buyer, the builder is not liable for subsequent injuries that would have been readily available on reasonable inspection. The Court held today that (1) the acceptance doctrine also applies against subsequent purchasers, even where a negligent construction plaintiff had no authority to inspect or accept it, and (2) that if the defect is "readily observable" to the original purchaser, the subsequent purchaser may not sue for negligent construction.

The doctrine applies against subsequent purchasers

 Writing for the Court, Justice Nahmias explained that "[a]fter the work has been accepted, a contractor generally has no authority to inspect or make changes to the property" and therefore where a defect is readily observable to the person who has the ability to inspect and repaid it, the builder is no longer fairly accountable. Critically, Justice Nahmias wrote, the Court's decision did not prevent the application of any of the recognized exceptions to the acceptance doctrine (liability to third parties for hidden defects; nuisance per se; inherently dangerous conditions, etc.), nor did it force subsequent buyers to subject themselves to the doctrine by purchasing property "as is." While many states have abandoned the acceptance doctrine in favor of a more lenient "forseeability" requirement, irrespective of privity, the Court reiterated its holding in Bragg v. Oxford Constr. Co., 285 Ga. 98, 101 (2009) that the acceptance doctrine would continue to be applied unless and until the General Assembly abolished it by statute. 

The defect need only be observable to the original purchaser

Since a builder loses the ability to inspect and control defects on the property once it is passed to the owner, the defect need only be readily observable to the original purchaser. After that point, the subsequent purchaser can look to the seller of the property for warranties and liabilities after the condition of the property. Thus, the Court held, a subsequent-purchaser plaintiff must show the defect was not readily observable to the original purchaser of the property. 

The full opinion is available at https://www.gasupreme.us/wp-content/uploads/2019/06/s19q0249.pdf

Murder Convictions and Life Sentences

S18G0699. ADAMS v. THE STATE
S18G0947. NORDAHL v. THE STATE
S19A0095. DOZIER v. THE STATE
S19A0172. RIGSBY v. THE STATE
S19A0177. WALKER v. THE STATE
S19A0224. GOINS v. THE STATE
S19A0289. ROWLAND v. THE STATE
S19A0343. JACKSON v. THE STATE
S19A0366. BLACKMON v. THE STATE
S19A0428. BOWMAN v. THE STATE
S19A0565. GOLSON v. THE STATE


Disciplinary Matters

S19Y0706. IN THE MATTER OF JONNIE MAE GRAHAM
S19Y0959. IN THE MATTER OF PRESTON B. KUNDA

Notable Opinions: May 20

The Court issued notable opinions in three cases, two of which SCOGblog highlighted this past spring in Cases to Watch and Oral Argument Notes (McConnell v. GA. DOL) (Guyton v. Barrow) dealing with agency deference, data breach litigation, and mootness. 

City of Guyton v. Barrow

As we highlighted in march, oral arguments in City of Guyton, Case no. S18G0944 (2019 WL 2167460) gave the impression that skepticism of agency deference exists on the Georgia Supreme Court, and that, given the appropriate opportunity, the Court may go so far as to overrule the State analogues to familiar doctrines like Chevron and Auer deference. (See Oral Argument Analysis: Guyton v. Barrow). 

Along those lines, the introduction to Justice Peterson's opinion for the Court helpfully captures the Court's conclusion in the case:

"Some have argued that this doctrine is in tension with our role as the principal interpreter of Georgia law, and we granted certiorari here on that question. But any such tension could exist only in cases where we have exhausted all of our interpretive tools without determining a text’s meaning. This is not one of those cases."

The case arises from Craig Barrow's challenge to the Environmental Protection Division of the Georgia Department of Natural Resources's (“EPD”) decision to issue a permit to the City of Guyton to apply treated wastewater to a tract of land through spray irrigation. Barrow argued that EPD issued the permit in violation of a water quality standard, Ga. Comp. R. & Regs., r. 391-3-6-.03 (2) (b) (ii) (the “antidegradation rule”).

The Court of Appeals below concluded that the antidegradation rule unambiguously required EPD to perform the antidegradation analysis, and, therefore, that EPD’s internal guidelines to the contrary did not warrant deference. See Barrow v. Dunn, 344 Ga. App. 747 (812 SE2d 63) (2018). The Court unanimously reversed, agreeing that the text of the rule was unambiguous -- albeit in the opposite direction. 

While Court did not overrule or even apply agency deference in Guyton, it nonetheless signaled to lower courts a narrow vision for their application of the doctrine going forward. Justice Peterson wrote "[a]lthough our statement in Atlanta Journal [that an agency’s interpretation is 'controlling' unless 'it is plainly erroneous or inconsistent' with the regulation seemingly requires us to follow an agency interpretation so long as it is reasonable] placed no qualifiers on judicial deference to agency interpretations, it is clear that we are to defer to an agency’s interpretation only when we are unable to determine the meaning of the legal text at issue." In this sense, Guyton at least purports to rein in agency deference to only those cases in which the courts "have exhausted all tools of construction." (emphasis added). To drive home the point, Justice Peterson emphasized "[a]fter using all tools of construction, there are few statutes or regulations that are truly ambiguous," and therefore even where "the meaning of the applicable regulation is not obvious on its face, this does not mean the regulation is ambiguous." (emphasis added).

McConnell v. Georgia Department of Labor 

In March, we noted that oral argument in McConnell ("McConnell II") signaled changes might be coming in Georgia data breach litigation. 

Background:

Thomas McConnell filed a class action against the Georgia Department of Labor, alleging several tort claims in connection with the Department’s disclosure PII belonging to members of the proposed class. Specifically, McConnell alleges that a Department employee sent an e-mail to approximately 1,000 applicants for unemployment benefits including a spreadsheet that listed the name, social security number, home phone number, e-mail address, and age of over 4,000 Georgians who had registered for Department services.

Proceedings Below: 

McConnell's tort claims include negligent disclosure of PII, breach of fiduciary duty, and invasion of privacy. The complaint sought to recover out-of-pocket costs related to credit monitoring and identity protection services and damages resulting from the adverse impact to his credit score from the closing of accounts.  In 2017, the Supreme Court held that the Court of Appeals had erred in addressing the merits before deciding the threshold issue of sovereign immunity. McConnell v. Dept. of Labor, 302 Ga. 18, 19, 805 S.E.2d 79 (2017) ("McConnell I). On remand, the trial court held that sovereign immunity barred the claims; the Court of Appeals disagreed, but held in any event that McConnell’s had indeed failed to state a claim. See McConnell v. Dept. of Labor, 345 Ga. App. 669 (2018).

McConnell II: 

As anticipated, the Court held that the State had waived sovereign immunity as to McConnell's negligence claims, but that McConnell nonetheless failed to state a claim. In particular, the Court rejected the Plaintiffs' submission that, based on the the opinion of a divided Court in Bradley Center, Inc. v. Wessner, 250 Ga. 199, 201 (1982) (dealing with a doctor's duty to protect third parties against mental health patients who are or could be dangerous) Georgia law imposes a  general duty “to all the world not to subject them to an unreasonable risk of harm.” 2019 WL 2167323 at *3. 

Writing for the Court, Justice Boggs explained: 

the language in Bradley Center on which McConnell relies was not a holding concurred in by a majority of this Court, was not supported by the only authority that the lead opinion cited, was not a correct statement of the law, did not control the result in that case (which was based on a “special relationship” between the plaintiff and the defendant), and has never been endorsed in a decision of this Court that qualifies as precedent.

Id. Because no such special relationship existed between McConnell and the Department, and he could not point to any statute creating such a duty, the Court dismissed the complaint for failure to state a claim. See id. 

The Upshot: 

The upshot of McConnell II is that whether and when holders of personally identifiable information owe a duty to protect the information is not settled. This is because, despite disapproving Bradley Center, the Court did not take the opportunity to clarify the duty owed under Georgia law. While McConnell II does not necessarily stand for the proposition that holders of PII don't ever have any duty to safeguard the information, a unanimous dismissal of the complaint at a minimum makes clear that the Court does not take the existence of such a duty for granted. Indeed, Justice Nahmias noted during oral argument that there is little to distinguish accidental disclosure situations from criminal hacking if there is not an underlying duty to safeguard another's PII.  

Interestingly, a number of the data breach cases filed involving Georgia law currently pending in Federal Court expressly relied on Bradley Center to find the existence of a duty to safeguard.  (See below). While a number of these cases have been found to state a claim under Georgia law, with the decision in McConnell, there do not appear to be any Georgia cases which agree. See McConnell II (supra), Collins v. Athens Orthopedic Clinic, 347 Ga. App. 13 (2018) (dismissing for failure to state a claim based on lack of legally cognizable damages); Finnerty v. State Bank and Trust Co., 301 Ga. App. 569, 687 S.E.2d 842 (2009). 

It will not be long, however, before the Court has more to say on data breach litigation. In late April, the Court granted cert in Collins v. Athens Orthopedic Clinic, asking whether the  Court of Appeals erred in dismissing a data breach complaint because the plaintiffs could not allege legally cognizable injury. That case is scheduled for the September 2019 oral argument calendar; for background on the case, see our post on the order granting cert. 

Also Referenced:

In Re Equifax Inc., Customer Data Security Breach Litigation, 362 F.Supp.3d 1295 (N.D.Ga. 2019)

In Re Arby's Restaurant Group Inc. Litig., No. 1:17-cv-1035-AT, 2018 WL 2128441 at *3-5 (N.D.Ga. March 5, 2018)

 In Re The Home Depot Inc., Customer Data Security Breach Litigation, No. 1:14-md-2583-TWT 2016 WL 2897520 *3-4 (N.D.Ga. May 18, 2016)

Murder Convictions/Life Sentences

CARTER V. THE STATE (S19A0440) 

CARTER V. THE STATE (S19A0409) 

COCHRAN V. THE STATE (S19A0149) 

DAVIS V. THE STATE (S19A0419) 

GOODEN V. THE STATE (S19A0173) 

GRIER V. THE STATE (S19A0634) 

MOSS V. THE STATE (S19A0443) 

SPELL V. THE STATE (S19A0066) 

STROTHER V. THE STATE (S19A0279) 

Disciplinary Matters

IN THE MATTER OF: RICHARD SCOTT THOMPSON (S19Y1076)

Notable Opinions: May 6, 2019

The Court issued two notable opinions today. The first deals with the development of Georgia's new federal-style evidence code, and the second addresses whether police must administer Miranda-style warnings before asking suspected drunk drivers to submit to breath tests.


The State v. Orr (S18G0994)

The State v. Orr continues the development of evidence law in Georgia following the adoption of the new federal style evidence rules in 2013. Specifically, Orr abrogates a previously categorical rule that pre-arrest silence ("failure to come forward") is always inadmissible; after Orr, trial courts must evaluate these situations under the case-by-case prejudice vs. probativity analysis laid out in OCGA 24-3-403.

Orr involved a domestic violence/simple battery charge where the defendant claimed at trial that he had only ever hit the victim in self defense. The prosecution elicited testimony that the defendant had never (including on the night in question) told law enforcement about the victim assaulting him, and had argued in closing that his silence on the subject should be understood as belying his testimony that he acted in self defense.

The Court of Appeals upheld the trial court's grant of a motion for new trial, noting that until the Georgia Supreme Court denounced the rule from Mallory v. State, 261 Ga. 625 (1991), its holding bound lower courts to deem the evidence and argument in Orr's trial inadmissible. See State v. Orr, 345 Ga. App. 74. 78-79 (2018) (noting cases in which the Supreme Court had "express[ed] no opinion about the continuing validity of Mallory under the new evidence code).

Writing for the Court, Justice Nahmias made clear that "there is no doubt that [the Mallory rule] was abrogated by the new evidence code." See Case No. S18G0994 at *16. The Mallory Court said that "a comment upon a defendant's silence or failure to come forward is far more prejudicial than probative, and therefore . . . such a comment will not be allowed even where the defendant has not received Miranda Warnings and . . . takes the stand in his own defense." See 261 Ga. at 630. The new evidence code, however, "created a new evidence world in this state," S18G0994 at *17, and is largely derivative of the federal rules of evidence. Georgia courts may only look to the substantive provisions of the prior evidence rules when those rules are not displaced by the new evidence code. See generally State v. Almanza, 304 Ga. 553 (2018). Under the new rules, the provision for exclusion of evidence based on the prejudice vs. probativity analysis is 24-4-403 ("rule 403"), which expressly provides for a balancing test, not systematic exclusion. Thus, Mallory's flat exclusion of this evidence is contrary to an on-point rule of the new code, and is therefore no longer good law. See also State v. Jones, 297 Ga. 156, 158 (2018).

Justice Nahmias emphasized the decision does not foreclose other avenues for keeping such evidence out, but instead "[t]he point is that careful attention must now be paid to the specific evidence offered and the specific theory and rules the proponent . . . contends authorize its admission." S18G0994 at *29. Indeed, in many cases rule 403 will provide a basis for exclusion, since "in most circumstances silence is so ambiguous that it is of little probative force." Id. at *30, citing United States v. Hale, 422 U.S. 422 U.S. 171, 176 (1975).

It is worth noting as a practice point that in footnote 6 of the opinion the court clarified it did not decide whether Mallory still applied to cases that had been in the appellate pipeline before the new evidence code came into effect.


The full opinion can be found at: https://www.gasupreme.us/wp-content/uploads/2019/05/s18g0994_sub.pdf


The State v. Turnquest 

Turnquest stands for the proposition that neither the Georgia Constitution nor OCGA 24-5-506, a Georgia statute prohibiting self-incrimination, require Miranda-style warnings before police ask people arrested for DUI to submit to a breath test. See The State v. Turnquest, S19A0157.

In Olevik .v. State, 302 Ga. 228, 235-246 (2017) the Court held that the Georgia Constitution offers broader protection against self incrimination than the Federal Constitution. Whereas the Federal Constitution protects only against the compulsion of incriminating testimony, the Georgia Constitution forbids the compulsion of incriminating acts as well. Shortly after, the Court held that the exercise of that right against self-incrimination cannot be offered into evidence by the state as proof of guilt. Elliot v. State, 824 S.E.2d 265 (2019). Turnquest clarifies, however, that officers need not expressly advice suspected drunk drivers of their right to take a breath test before asking them to do so.

Because the Federal Constitution's self-incrimination provision only deals with testimony, Miranda v. Arizona, 384 U.S. 436 (1966), it does not apply to incriminating acts; i.e. since the 5th amendment only covers speech, the Miranda warnings are only required when police seek to elicit incriminating statements (submitting to a breath test is an act not a statement). Thus, the question becomes whether any provision of Georgia law requires such a warning.

Writing for the Court, Justice Peterson rejected arguments that Miranda-style warnings were required under the self-incrimination provision, Ga. Const. Art. 1 § 1, ¶16, the due process provision Ga. Const. Art. 1 § 1, ¶1, and Georgia's statutory prohibition on compelled self incrimination, O.C.G.A. § 24-5-506. As to constitutional self-incrimination, Justice Peterson explained for the Court that to the extent Miranda could be viewed as an interpretation of any federal constitutional provision, it was not based on any language history or context that was shared by the Georgia provision. Further, nothing in the language, history, or context of paragraph 16 of the Georgia Constitution (nor, for that matter, the statutory self-incrimination provision) indicates that a suspect must be warned of his right against compelled self incrimination. The failure to apprise a suspect of their rights does not, Justice Peterson wrote, render subsequent incriminating acts "compelled," neither in the the common sense of the word nor as reflected by the common law history enshrined in the Georgia Constitution.

Similarly, Justice Peterson pointed out that nothing in the text or history of the Georgia's due process right requires police to inform a person of their right against self-incrimination, and even the fact that Miranda changed the nature of the Federal right does not mean it similarly changed the scope of the Georgia right. Even if it did, there is no United States Supreme Court decision indicating the Federal Due Process right requires Miranda warnings before a breath test.

The decision in Turnquest overrules Price v. State, 269 Ga. 222 (1998) (holding the failure to give Miranda warnings renders evidence regarding field sobriety tests inadmissible).

The full opinion can be found at: https://www.gasupreme.us/wp-content/uploads/2019/05/s19a0157.pdf


Other Cases
The Court also upheld murder convictions and life sentences in the following cases:

S19A0068.  JONES v. THE STATE
S19A0101.  JONES v. THE STATE
S19A0276.  WILLIAMSON v. THE STATE
S19A0346.  WILLIAMS v. THE STATE
S19A0351, S19A0352.  HANEY V STATE (two cases)

Notable Opinions: April 29, 2019

The State v. Newman (S19A0374)

Newman holds that a defendant who argues ineffective assistance of counsel for failure to request a jury charge fails to show the "plain error" necessary for a new trial if he cannot demonstrate the error negatively affected the proceedings.

In State v. Newman the Court reversed the grant of a new trial to a man convicted of felony murder, aggravated assault, and possession of a firearm. The trial court granted the motion for new trial on the grounds that defense counsel was ineffective in failing to request a jury instruction on defense of habitation (see OCGA § 16-3-23), and the court itself erred in failing to instruct the jury sua sponte.

Because Newman failed to object to the failure to give the instruction, the trial court's decision not to do so does not warrant a new trial unless it was plain error. See State v. Johnson, – Ga. – (Case No. S18A1275, decided Feb. 18, 2019)

Writing for the Court, Chief Justice Melton held that even if Newman had presented enough evidence to warrant the defense of habitation instruction (doubtful, since he essentially contended at trial that the shooting was an accident), he had failed to show that not giving the charge negatively effected the outcome of the trial since there was substantial evidence of guilt and he had repeatedly changed his version of events.


Other Cases

The Court also upheld murder convictions and life sentences in the following cases:

S19A0012. KOONCE v. THE STATE
S19A0019. OLIVER v. THE STATE
S19A0031. HART v. THE STATE
S19A0100. LUCKIE v. BERRY
S19A0129. WOFFORD v. THE STATE
S19A0138. MOORE v. THE STATE
S19A0158. OUTLER v. THE STATE
S19A0174. BELL v. THE STATE
S19A0243. PARKS v. THE STATE
S19A0361. LAY v. THE STATE



Attorney Discipline
S19Y0645. IN THE MATTER OF LAKEISHA TENNILLE GANTT
S19Y0980. IN THE MATTER OF DON SMART

Notable Opinions: April 15

Today the court issued two notable opinions regarding the "prejudice" prong of the Strickland v. Washington "ineffective assistance of counsel" test.



Dozier v. Watson (S19A0027)

In Dozier, the Court reversed an order by the Superior Court of Jenkins County granting Jeffrey Watson's petition for a writ of habeas corpus. Writing for the Court, Justice Ellington explained that a trial court may not grant the writ purely because trial counsel's performance was constitutionally ineffective. Instead, an ineffective assistance claim requires showing both that the lawyer's performance was deficient and that the deficient performance was harmful to the criminal defendant. See Strickland v. Washington, 466 U.S. 668, 687-689 (1984). The harmfulness prong, commonly referred to as "prejudicial," requires that there is a reasonable probability that but for the lawyer's deficient performance, the outcome would have been different. Thus, it is not enough to conclude that "prejudice was apparent because [Watson] was deprived of constitutionally sufficient performance," the insufficient performance must cause harm within the proceeding. In the context of Watson's case (dealing with the alleged failure to adequately explain the consequences of being sentenced as a recidivist under a plea agreement), this would mean that "Watson had shown 'that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " (4) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

https://www.gasupreme.us/wp-content/uploads/2019/04/s19a0027.pdf

Burgess v. Hall (S19A0041)


In Burgess, the Court affirmed the denial of Burgess's petition for a writ of habeas corpus. Burgess's habeas claim asserts that his appellate counsel was constitutionally ineffective because he failed to pursue lines of evidence that may have been used to impeach the principal witness against Burgess. "To show that appellate counsel was ineffective for failing to argue that trial counsel was ineffective, a defendant must show that trial counsel was deficient and the deficiency prejudiced the trial."
(7). Writing for the Court, Justice Peterson emphasized that the record reflects that the trial counsel tried at length to impeach the relevant witness, and appellate counsel did not believe that the cross examination of the witness (which is typically a matter of trail strategy) could satisfy both prongs of the Strickland test. Thus, even if the Court agreed that the performance of both lawyers was deficient, Burgess still could not show that their performance negatively impacted the outcome because the added benefit of "[a]ny additional attack on Weems's credibility would have had marginal value." (10). For the same reason, Burgess's claims that the State had failed to disclose relevant impeachment evidence could failed to demonstrate the so-called "Brady violation" prejudiced the outcome of the trial.

https://www.gasupreme.us/wp-content/uploads/2019/04/s19a0041.pdf

Murder Convictions and Life Sentences

The Court also upheld murder convictions and life prison sentences for:

Carpenter v. State (S19A0439)
Castillo-Velazquez v. State (S19A0323)
Coley v. State (S19A0457)
Davis v. State (S19A0250)
Jones v. State (S18A1208)


Other Decisions

Clark v. State (S19A0038)

In Clark, the Court held that a trial court's initial decision denying Clark's motion for out-of-time appeal was res judicata against a second motion seeking the same relief. "Res judicata precludes re-litigation of claims where the cause of action and the parties or their privies are identical and the claim was previously adjudicated on the merits by a court of competent jurisdiction." Brooks v. State, 301 Ga. 748, 750-751 (2017). Thus, "the trial court was precluded from revisiting the issue of [Clark]'s entitlement to an out-of-time appeal of his convictions, [and] it did not err in denying the [second] motion for an out-of-time appeal." Id.

Notable Opinions March 13

Federal Deposit Insurance Corporation v. Loudermilk et al. (S18Q1233)

In Loudermilk, the Court held that Georgia's apportionment statute applies in tort cases in which alleged losses are purely monetary. In the context of the case, damages sought by the Federal Deposit Insurance Corporation (FDIC) are not excluded from apportionment simply because the losses are purely economic.

The case came to the Court in three certified questions from the United States Court of Appeals for the 11th Circuit. In the underlying case, the Georgia Department of Banking and Finance ordered the closure of the Buckhead Community bank after several large commercial loans the bank issued had failed. The FDIC was appointed as the bank's receiver, and subsequently sued multiple former directors and officers in Federal Court, alleging that they had been grossly negligent under Georgia law in their approval of 10 commercial real estate loans. The FDIC sought nearly $22 million in losses.

Pertinent to the Court's decision today, the District Court denied a motion asking the court to instruct the jury that it should apportion damages according to fault among bank officers found liable. On appeal from a judgement against them of nearly $5 million, the 11th Circuit sent three questions to the Supreme Court of Georgia:

1. Does Georgia Code 51-12-33 apply to claims for purely money losses against bank directors and officers? 
2. Did the apportionment statute abolish Georgia's common-law rule imposing joint and several liability on wrongdoers who act in concert; and
3. Us a decision by a bank's board of directors a "concerted action" so that the board members should be held jointly-and-severally liable" for negligence?

(emphasis added).  Writing for the Court, Justice Warren answered yes to the first question, no to the second, and declined to further answer the third.

In holding that purely monetary losses may be apportioned, the Court emphasized that "the usual and customary meaning of the term 'property,' as used in a legal context . . . [includes] injuries to tangible and intangible property." (emphasis added).

The Court also indicated that the common law rule of joint and several liability for concerted action survived the enactment of 51-12-33, at least action is "concerted" in the traditional sense understood at common law where fault is not divisible (the "touchstone" of the apportionment statute).



Debelbot et al. v. The State (S18A1073)

In Debelbot the Court vacated the denial of a motion for new trial in the case of a U.S. Army couple convicted of killing their 2-day-old baby by fracturing her skull. Writing for a unanimous court, Justice Peterson held that "the nature of the order below prevents meaningful review" of the couple's claims on appeal.

According to the couple, shortly after taking the child home from the hospital for the first time, they awoke in the middle of the night and discovered a lump on the baby's forehead. They child died shortly after they returned to the hospital. A GBI autopsy revealed severe head trauma, and lead the examiner to conclude that the child had died from either a series of blows to the head or a crushing type of injury. While the couple denied any knowledge of how the baby's skull was fractured, the State produced evidence that the child's father told a cellmate that the night the baby came home, he had gone out to buy crack cocaine and returned to find the baby not moving; the mother apparently told the father she had "spanked" the baby. Both parents were found guilty and sentenced to life in prison. The motion-for-new-trial court rejected the testimony offered by the parents' experts, which claimed the "injuries" were really the result of a birth defect.

In relevant part, the Court held that the nature of the motion-for-new-trial court's order made it difficult to review the parent's claims for ineffective assistance of counsel (based principally on the failure to offer an alternative explanation for how the baby was injured). The trial court's order summarily concluded that none of the parents' witnesses at the hearing were credible, despite having qualified them as expert witnesses, and refused to consider any of the medical evidence they offered as contrary to the Harper v. State (1982) "verifiable certainty" test for determining the admissibility of a scientific procedure. Therefore, rather than say that the new trial should have been granted, the Court vacated the denial and remanded the case for further consideration.

Justice Bethel concurred in the judgement, but wrote separately to criticize a suggestion in the prosecutor's closing argument that "reasonable doubt does not mean beyond all doubt It does not mean to a mathematical certainty . . . . You don't have to be 90 percent sure. You don't have to be 80 percent sure. You don't have to be 51 percent sure." (emphasis added). Justice Bethel emphasized the remark could easily invite the jury to misunderstand the nature of "reasonable doubt" and apply far too low a standard for imposing criminal punishment.