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Next Week at the Court

January 21, 2011

After the iced out attempted two weeks ago to hold oral argument, the Supreme Court of Georgia will hold oral argument on Monday and Tuesday of next week.  A brief discussion of each civil case on the docket is below, along with links to the filings in each case.

Monday, January 24, 2011 10:00 am Sitting

S10G1244. OGLETHORPE POWER CORPORATION et al. v. JAMES R. FORRISTER et al.

This case involves the distinction between a permanent nuisance and a continuing nuisance.  An electric membership corporation (EMC) operates a “peaking” power plant in Polk County that operates only when the amount of electricity required for the grid exceeds the ability of the primary plants to provide that power.  The plant began operation in 2000 on 25 acres of a 160-acre site.  Individuals living close to the site complained initially about vibrations and sound emanating from the plant, and the company added some insulation and took other measures to minimize the noise.  Neighbors claim the noise from the plant got worse over time, and in 2007, the adjoining landowners filed this litigation.

The trial court denied summary judgment to the EMC, finding that the 12-month statute of limitations did not apply because there was no burden on the plaintiffs’ land by a perpetual easement.  The trial court also found that the plant’s operation was intermittent, so the statute of limitations began to run when the quantity and quality of the noise changed in 2004.

The Court of Appeals splintered 3-1-3 in its decision affirming the trial court’s ruling.  Judges Barnes, Blackburn, Mikell joined the opinion affirming the judgment, Chief Judge Miller concurred in the judgment only, and Judges Andrews, Johnson, and Ellington dissented.  The plurality determined that the 12-month statute of limitations did not apply to complaints about noise pollution.  The plurality further found that the trial court ruled correctly on the plant being a continuing, not a permanent, nuisance.  The dissent would have found that the plant was a permanent nuisance because the noise problem had existed since the plant’s construction in 2000 and applied the four-year statute of limitations.

The EMCs petitioned for certiorari, and the plaintiffs responded.  Two amici, the Georgia Energy Cooperative and the Georgia Electric Membership Corporation also filed briefs to support the petition for certiorari.

On October 4, 2010, the Supreme Court unanimously granted the petition for certiorari to review the following issue:

  1. Did the Court of Appeals err in its application of City of Atlanta v. Kleber, 285 Ga. 413 (2009) when it upheld the denial of summary judgment by the trial court?

The EMCs filed their principal brief, and the plaintiffs responded.  The Municipal Electric Authority of Georgia (MEAG) and Georgia Power filed a joint brief as amici in support of the appeal.

The case will be argued on January 24, 2011.

Monday, January 24, 2011 2:00 pm Sitting

S11A0019. Daniel et al. v. Amicalola Electric Membership Corporation

This case began as a dispute about an easement, but contains a constitutional challenge and a statute of limitations challenge.  In 2006, the Daniels purchased a piece of property; the title search indicated no easements existed on the property.  In 2007, Amicalola crews came to the property and cut down approximately 40 trees, clearing out a path along a claimed easement.  The Daniels claim that Amicalola employees advised them that the easement had been abandoned.  A year later, crews again came to work along the property and the Daniels sued.

The trial court granted Amicalola’s motion for summary judgment, finding that a one-year statute of limitations applied from the time the Daniels learned of the easement, rejecting the tolling and constitutional challenges to the statute raised by the Daniels.

The Daniels appealed based on the constitutional challenge to the statute of limitations, arguing that the trial court erred.  Amicalola responded, arguing that statute is constitutional and that the Attorney General was not properly served.  The Georgia Electric Membership Corporation filed an amicus brief supporting Amicalola.  The Daniels filed a reply brief.

The Supreme Court will hear oral argument on January 24, 2011.

S11A0046. JIG Real Estate, LLC v. Countrywide Home Loans, Inc., et al.

This case began as a foreclosure on a home in Woodstock.  The homeowner had agreed to a loan modification, but the foreclosure sale mistakenly went forward.  JIG purchased the property at the foreclosure sale.  Two days later, Countrywide informed JIG that it was rescinding the sale pursuant to O.C.G.A. 9-13-172.1.  JIG attempted to re-tender the purchase price but Countrywide did not deliver the property.  JIG sued Countrywide for breach of contract, and challenged the constitutionality of the conditional foreclosure statute.

The trial court granted Countrywide’s motion for summary judgment upholding the constitutionality of the conditional foreclosure statute, and JIG appealed, relying on the Supreme Court’s jurisdiction over cases involving the constitutionality of state statutes.

JIG filed its principal brief, arguing that Countrywide had no right to rescind the foreclosure sale, and that the statute is void for vagueness.  Countrywide responded, arguing that the statute is constitutional and the sale was handled in accordance with it.  Two amici filed briefs in support of Countrywide’s position, the Georgia Bankers’ Association, and Atlanta Legal Aid Society.

The case will be argued on January 24, 2011.

Strickland Brockington Lewis LLP represented the homeowners in the trial court.

Tuesday, January 25, 2011 10:00 am Sitting

S10G1141. BENCHMARK BUILDERS, INC. v. SCHULTZ et al.

This case began as a breach of contract action related to the construction of a home, but has become a question of attorney fees and verdict forms on appeal.  After a trial on the breach of contract claims, the jury found in favor of defendants on the principal claims and their counterclaims, but awarded no actual damages.  The jury did award, however, attorney fees for the defendants.  Plaintiffs challenged the verdict, claiming the award was improper because fees are recoverable only when a party recovers actual damages.  The trial court refused and entered the verdict.

The Court of Appeals (Barnes, Miller, Andrews) unanimously affirmed the trial court ruling, finding that the failure of the plaintiffs to object to the verdict form foreclosed any challenge to the jury’s verdict.

Appellants petitioned for certiorari asserting that the jury verdict was void and therefore the objection to the form did not foreclose a challenge based on precedents from other Court of Appeals cases.  Appellees responded by citing the primary case relied on by the Court of Appeals where a failure to object to the jury form waived any challenge to the verdict.

The Supreme Court unanimously granted the petition for certiorari on September 7, 2010 to consider the following issue:

  1. Whether the Court of Appeals was correct in holding that by failing to object to the verdict form a party waives a claim that an award of attorney fees under OCGA Section 13-6-11 is improper in the absence of an award of actual damages.

The Appellants filed their principal brief and Appellees responded.

The Court will hear oral argument on January 24, 2011.

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