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Next Week at the Court – February 8, 2010

February 5, 2010

On Monday, the Supreme Court of Georgia returns for the first two days of four days of scheduled oral argument this month.  The Court will hear argument in thirteen cases next week, four of which are civil cases.

Civil Cases to be Argued on Monday, February 8, 2010 at the 10:00 am Sitting

S09G1508. Hicks v. Heard et al.

This case involves a personal injury action where a part-time employee was involved in an automobile accident. The employee was returning from school (unrelated to her employment) and was driving a company vehicle at the time of the accident. The injured party sued the company, and the trial court granted summary judgment to the company, finding that although the employee was “on call” and available on an “as needed” basis, she was not within the scope of her employment at the time of the accident. The Court of Appeals (Blackburn, Adams, and Doyle) unanimously affirmed the trial court, finding that there was no jury issue related to whether the employee was within the course and scope of employment, because being “on call” at the time of the accident is not enough.

The Supreme Court unanimously granted certiorari to review this issue:

  1. Has the Court of Appeals given proper weight to an employee’s “on call” status during the final step of the burden shifting framework laid out in Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979)? Compare Allen Kane’s, supra at 783 with Upshaw v. Roberts Timber Co., 266 Ga. App. 135 (596 SE2d 679) (2004); Hankerson v. Hammett, 285 Ga. App. 610 (647 SE2d 319) (2007); Evans v. Dixie Fasteners, Inc., 162 Ga. App. 74, 75 (290 SE2d 172) (1982).

The case was assigned to the January 2010 term of the Court when the Court granted the petition for certiorari on October 19, 2009.

Civil Cases to be Argued on Monday, February 8, 2010 at the 2:00 pm Sitting

S10A0258. Deen v. Stevens

This direct appeal originates from Glynn County and involves the application of the statute of limitations to a lawsuit against a dentist.  Deen’s husband sought treatment from a dentist in July 2005 for an infection around a tooth.  The dentist referred him to a specialist for a root canal and prescribed an antibiotic.  Deen’s husband could not afford the root canal, and took no action.  A month later, he collapsed and the emergency room doctors concluded he suffered severe injuries as the result of a brain hemorrhage apparently related to the tooth infection, causing severe brain damage.

Three years later, Deen filed a complaint against the dentist and the dental practice, alleging professional negligence caused the injuries because less expensive treatment options were not offered and insufficient antibiotics were prescribed.  The practice filed a motion to dismiss based on the statute of limitations, because the timeline for a medical malpractice claim of two years is not tolled by a mental disability.  Deen argued that the two-year statute for simple negligence claims applies, and was tolled by the mental disability.  Deen argued that because Deen’s husband had no appointed guardian until May 2008, there was a tolling of the statute until that time.

The trial court found in favor of the dental practice, finding that the two-year statute of limitations for medical malpractice applied and was not tolled by the mental disability.  Deen appealed, arguing the distinction between mentally incapacitated adults in medical malpractice and non-medical malpractice claims is both unreasonable and unconstitutional as a violation of equal protection.  The dental practice argues that the statute has been upheld in the past, and that Deen’s claims involved professional malpractice, not simple negligence.

The case was assigned to the January 2010 term of the Court when it granted the interlocutory appeal in 2009.

Civil Cases to be Argued on Tuesday, February 9, 2010 at the 10:00 am Sitting

S09G2004. Houston County v. Harrell

This is a civil rights claim brought by Harrell against Houston County. After receiving a traffic citation, Harrell promptly paid the fine. Because she had to leave the courthouse briefly to get money from an ATM, the county required her to sign paperwork with a private probation company that handled the misdemeanor probation services for the county. Harrell paid the fine a few minutes later after getting money from the ATM. The private company had no record that Harrell had paid, and later sought a warrant for her arrest. Harrell was arrested and spent several days in jail before being released. Harrell sued, alleging a violation of her constitutional rights under 42 U.S.C. § 1983. The trial court granted summary judgment to the county.

The Court of Appeals (Phipps, Smith, and Bernes) unanimously reversed the trial court, finding that questions of fact remained about Harrell’s claims regarding the arrest warrant process. Because Harrell presented evidence that no oath was required by anyone employed by the private company before the judge issued arrest warrants, the Court of Appeals determined the record supports the conclusion that the warrant issue for Harrell’s arrest was invalid under the constitution.

The Supreme Court unanimously granted certiorari to review this procedural question:

  1. Did the Court of Appeals err in exercising jurisdiction over the appeal from a grant of summary judgment apparently based upon certification under OCGA § 9-11-54 (b), even though the machinery of immediate appellate review under OCGA § 9-11-56 (h) had previously been put into motion? See Mitchell v. Oliver, 254 Ga. 112, 114 (1) (1985).

Attorneys for the county argue that the Court of Appeals had no jurisdiction over Harrell’s appeal because she failed to file her initial Notice of appeal within 30 days of the grant of summary judgment, instead attempting immediate appellate review.  Harrell’s attorneys argue the Court of Appeals had jurisdiction, apparently based on the county failing to raise res judicata issues at an earlier stage in the process.

The case was placed in the January 2010 term of the Court when it granted certiorari on November 2, 2009.

S09G2081. Brookfield Country Club, Inc. v. St. James Brookfield, LLC

This case involves the validity of a court’s review of an arbitrator’s award. When Brookfield leased the operations of its golf course to St. James Brookfield, LLC, it made a number of warranties about its rights to the property. One of the issues unaddressed in the lease was the necessity of obtaining a permit to withdraw water from a lake on the property for purposes of irrigation. Both parties agreed to arbitrate any disputes. When St. James became aware of the necessity of the permit, it filed an arbitration claim against Brookfield to have Brookfield pay the cost of obtaining the permit and developing the plan, arguing it violated the terms of the agreement. The arbitrator agreed, finding the agreement unambiguous, and required Brookfield to bear the cost of obtaining the permit. St. James moved to confirm the decision in the Fulton County Superior Court, and Brookfield moved to partially vacate it. The trial court confirmed the award.

The Court of Appeals (Ellington, Johnson, and Mikell) unanimously affirmed the trial court’s decision, noting that this was an issue of first impression in Georgia. The Court of Appeals found the parties were attempting to add an additional ground for vacatur of an arbitration award by their agreement. This is not authorized by Georgia’s Arbitration Code, and awards must be confirmed unless one of five statutory grounds for vacatur is met. The Court of Appeals affirmed the trial court ruling confirming the award in spite of the parties’ agreement which allowed vacatur if the award “is not consistent with applicable law or not supported by a preponderance of the evidence” because this term improperly added to the five statutory grounds for vacatur.

The Supreme Court unanimously granted certiorari on the following question:

  1. Whether the Court of Appeals erred in affirming the trial court’s order confirming the arbitrator’s award and denying the application to partially vacate the award.

The case was placed on the January 2010 term of the Court when it granted certiorari on November 2, 2009.


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