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Opinions Released

November 24, 2010

Our apologies to our readers that attendance at a conference and the practice of law prevented us from posting the list of opinions released on Monday.  Below is a brief summary of each of the five civil cases and the opinion issued by the Court.  We also wish all our readers a wonderful Thanksgiving!


This case involves a dispute over the proper statute of limitations that applies in a breach of contract action.  Newell wanted to build a new automobile shredding facility and JJ&G, an engineering firm, provided a proposal and eventually undertook work on the facility.  After a period of time, the concrete paving began to crack, and Newell blamed the problem on JJ&G’s design.  More than four years after first notifying JJ&G about the problem, Newell filed suit for breach of contract.  The trial court found the four-year statute of limitations for professional malpractice, breach of an oral contract, or breach of a partly written and partly oral contract did not apply, allowing the case to go forward.

The Court of Appeals (Blackburn, Adams, and Doyle) unanimously reversed the trial court, finding that the four-year statute of limitations applied to this case, because Newell was asserting a professional malpractice claim sounding in contract against JJ&G.

The Supreme Court unanimously granted certiorari on January 11, 2010 to review the following issue:

  1. Did the Court of Appeals err in holding that a professional malpractice claim premised on a written contract is governed by the four-year statute of limitations in OCGA § 9-3-25, rather than the six-year statute of limitations in OCGA § 9-3-24?
On November 22, 2010, the Supreme Court unanimously reversed the Court of Appeals.  Writing for the Court, Justice Melton found that the case was based on the written agreement instead of a professional malpractice action, requiring the application of the six-year contract statute of limitations.


This is an action filed by Brown & Gallo, LLC, a well-known court reporting service, against the Judicial Council of Georgia, which oversees court reporters in the state.  The case was filed in Fulton County Superior Court on October 30, 2008 and heard by Judge Jerry Baxter.  Brown & Gallo had offered a promotion in 2008, where they would give a $25 gas card for each deposition scheduled during a certain period.  The Board of Court Reporting claimed this violated the Board’s Code of Professional Ethics, which were rules adopted pursuant to Georgia’s Administrative Procedure Act.  While the administrative complaint was pending, Brown & Gallo filed litigation challenging the ethical rule as invalid as ambiguous, exceeding the authority of the Board, and infringing on its right to conduct business.  The Board and Judicial Council moved to dismiss on the basis that the requirements of the Administrative Procedure Act related to adopting rules do not apply to the judiciary.  The trial court denied the motion to dismiss.

The Court of Appeals (Mikell, Johnson, and Ellington) unanimously affirmed the trial court’s denial of the motion to dismiss without an opinion, instead relying on the opinion below.

Five Justices of the Supreme Court (Hunstein and Carley were disqualified) unanimously granted certiorari to review the following question:

  1. Did the Court of Appeals err in affirming the trial court’s denial of Petitioner’s motion to dismiss?

On November 22, 2010, the Supreme Court reversed in an opinion authored by Justice Benham and joined by all the Court except for Justice Melton, who concurred in the judgment only.  Judge Robert W. Chasteen and Judge Henry Newkirk took part in the case to replace Justices Hunstein and Carley.  Writing for the Court, Justice Benham found that the Council and the Board are agencies of the judiciary and that the reference to the judiciary in the Administrative Procedure Act includes the Council and the Board.

S10A0831. COOK v. SMITH et al.

This dispute involves the Randolph County School Board, and disputes between the Superintendent and the chairman of the Board.  Henry Cook was elected chairman of the School Board in 1994, and subsequently Bobby Jenkins was chosen as the superintendent.  After several disputes, the Board voted in April 2009 to terminate the Superintendent’s contract.  The Board also attempted to replace Cook as chairman of the Board.  Cook and Jenkins then sued the other Board members.

The trial court initially enjoined the Board from firing Jenkins, but then lifted the order in June 2009.  At the next Board meeting, the board members claim they were again prohibited from adding items to the agenda, and the Board filed a motion for contempt.  The trial court found Cook and Jenkins in contempt and ordered them to jail for four days.  They eventually filed an emergency motion with the Georgia Supreme Court and the trial judge rescinded the contempt order.  The trial court also granted the Board’s motion to remove Jenkins from his position as Superintendent.

In a separate case, Cook challenged the constitutionality of a 2009 statute designed to change his term from four years to two years.  The same trial court held the statute constitutional, and Cook was removed from office.

Cook and Jenkins both appealed their respective cases to the Georgia Supreme Court.

On November 22, 2010, the Supreme Court unanimously affirmed in part and reversed in part.  Writing for the Court, Justice Melton found the trial court did not abuse its discretion regarding holding Cook in contempt of court, but did err regarding the constitutionality of the legislation.  The legislation’s effect of removing Cook as chairman of the Board was a bill of attainder because it negated his existing four-year term.


This case focuses on the proper application of homestaed exemptions when couples are separated, but not divorced.  John and Sandra Masters lived together in DeKalb County from 1978 through 1992.  In 1992, the couple separated, and in 1998, John turned his entire interest in the property over to Sandra.  John then moved to Glynn County and applied for a homestead exemption there in 2001.  After John turned the DeKalb property over to her in 1998, Sandra applied for a homestead exemption at that location.  John has continued to live in Glynn County and Sandra lives in DeKalb County but they have never divorced.  In 2008, DeKalb discovered that the couple had two homestead exemptions and revoked the DeKalb homestead exemption.

The trial court concluded that the statutory language only allows one homestead exemption per family group, which includes a married couple, and Sandra appealed to the Georgia Supreme Court.

On November 22, 2010, the Supreme Court reversed the trial court in a 6-1 decision (Benham, dissenting).  Writing for the Court, Justice Melton found the statute treats all married people equally, but that the DeKalb should not have rescinded Sandra’s homestead exemption, but instead, John’s homestead should have been denied.  In short, John’s actions could not negate the valid exemption on the DeKalb property.


This case originated in Walker County against multiple defendants, and J&N Holdings attempted to file a direct appeal from a trial court order dismissing one of the many defendants in the case.

The Court of Appeals dismissed the direct appeal, because it found that when a decision by a trial court adjudicates less than all the claims of all parties, there is no final judgment.  Without a final judgment, any direct appeal is premature.

On July 14, 2010, the Supreme Court granted certiorari in a 5-2 vote (Thompson and Hines dissenting) to consider the following issue:

  1. Did the Court of Appeals err by dismissing Petitioners’ direct appeal?

Appellants argue in their brief that the trial court converted the motion to dismiss into a motion for summary judgment, and that the granting of the motion was a final judgment by its nature.  The Appellee filed a response that it does not dispute the position of Appellants by reserved the right to address the substantive issues at a later point.

The Court heard oral argument on October 13, 2010.

On November 22, 2010, the Supreme Court unanimously reversed the Court of Appeals dismissal.  Writing for the Court, Justice Carley explained that a reviewing court should treat a motion to dismiss for failure to state a claim as a motion for summary judgment if matters outside the pleadings are considered.  In this case, matters outside the pleadings were presented, and the motion was converted into a motion for summary judgment, requiring the Court of Appeals to hear the appeal.


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