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Released Opinions

March 18, 2011

In an unusual Friday release of opinions, the Supreme Court released opinions in 21 cases this afternoon, four of which are civil. Brief summaries of the cases and the released opinions are below.

S10G0494. City of East Point v. Jordan et al.

After Johnathan Battle died while in the City of East Point’s jail facility, and his estate sued the City, which did not respond to the complaint and subsequently had a default judgment of $16 million entered against it.  The city moved to set aside the judgment, claiming improper service, and the trial court denied the motion.  On appeal, the city claimed it had not been properly served with the complaint, which had been served personally on the chief of police and the city attorney.  The city claimed the city attorney lacked the authority to accept service for the city.

The Court of Appeals (Johnson, Ellington, and Mikell) unanimously affirmed the trial court’s decision, finding that the facts and law indicated that the city attorney was the proper individual to receive service on behalf of the city, both due to the language of the city charter and because the statute requiring service on the mayor or city manager allows service to be made on an agent designated by a city.

On May 17, 2010, the Supreme Court granted certiorari in a 5-2 vote (Carley and Melton dissenting) to address the following issue:

  1. Did the Court of Appeals err by affirming the trial court’s finding of valid service of process on the City of East Point? See OCGA § 9-11-4 (e) (5); City of Atlanta v. Black, 265 Ga. 425 (457 SE2d 551) (1995).

The Appellant’s Brief argues that the City Attorney was not the proper party to receive service under the ordinances of the city and the laws of the State, but rather that the City Attorney could only acknowledge and waive personal service.  The Appellee’s Brief argues that the City Attorney had been appointed as the agent for service and the agent of the mayor.  A reply brief by the Appellants argues, among other things, that the mayor had no authority to delegate his designation as an agent for service of process and that the appellee misconstrues the relevant Georgia precedent.

This case was heard at oral argument on September 8, 2010.

On Friday, March 18, 2011, the Supreme Court granted the parties’ joint motion to withdraw the appeal because they reached a settlement of the claims.

S10G0615. Propst, Admr., et al. v. Morgan, Admr.

This case involves administrators of two different estates, but focuses on judicial recusal standards.  Propst received a jury verdict in his favor and Morgan sought to appeal.  After the costs of appeal remained unpaid, the trial judge dismissed the notice of appeal.  Morgan appealed the dismissal of the notice of appeal, citing an earlier motion by Morgan to have the trial judge recused based on personal bias.

The Court of Appeals (Phipps, Smith, and Bernes) unanimously vacated the trial court order, and found the case should be returned to have the recusal motion decided by a different judge prior to determining whether the notice of appeal should have been dismissed.  The Court of Appeals explained the recusal standard, and part of the basis for the recusal motion was that Morgan had previously made a criminal investigation of the trial judge’s husband, resulting in a guilty plea.  The Court of Appeals determined that the actions taken by the judge are invalid if the motion to recuse was improperly entered.

The Supreme Court unanimously granted certiorari on June 1, 2010 to review the following issue:

  1. Did the Court of Appeals err by considering the underlying issue of recusal without first considering whether the appeal raising this issue was properly dismissed? See OCGA § 5-6-48 (c).

The Brief of Appellants argues that the appeal was properly dismissed and that the waiver of the right to appeal controls the case.  The Brief of Appellees argues that the costs of appeal were properly paid, and that the actions of the trial judge were a violation of the recusal rules.

This case was heard on September 7, 2010.

On Friday, March 18, 2011, the Supreme Court unanimously affirmed the Court of Appeals. Writing for the Court, Justice Nahmias explained that the Court of Appeals properly considered the merits of the recusal motion due to the rare circumstances. The unanimous Court also announced the rule that when a trial judge dismisses a case after denying a motion to recuse, it is proper to consider the motion to recuse first to ensure that the motion to recuse should not have been granted.

S10G0877. Rosenberg v. Falling Water, Inc.

This case resulted from a collapsed deck in Cobb County.  Rosenberg had purchased the house after it was constructed in 1994.  In August 2005, the deck collapsed and Rosenberg sued the builder for negligent construction and fraud.  The builder argued that the eight-year statute on claims arising from deficient construction applied.  The trial court granted summary judgment to the builder based on the statute of repose, implicitly ruling that even if the builder committed fraud in 1994, that fraud did not estop the builder from relying on the statute of repose 11 years later.

The Court of Appeals (Ellington, Johnson, Mikell) unanimously affirmed the trial court’s ruling, finding that a statute of repose cannot be tolled and the doctrine of equitable estoppel did not apply.

On July 9, 2010, the Supreme Court granted certiorari in a 4-3 vote (Hunstein, Benham, and Hines, dissenting) to consider the following issue:

  1. Whether the Court of Appeals erred in holding that the defendant was not equitably estopped from relying on the statute of repose to defeat a construction defect claim.

Appellant Rosenberg argued in his brief that the Court of Appeals confused the legal principles of equitable estoppel and fraudulent concealment, allowing “wrongdoers” to profit from their conduct.  In response, Appellee Falling Water argued that the claims were barred by the statute of repose and could not be revived by equitable estoppel.  Rosenberg filed a reply brief to reiterate his position.  The Georgia Trial Lawyers’ Association filed an amicus brief in support of Appellant and in support of the position that equitable estoppel should be allowed against a statute of repose.

The Court heard argument on October 13, 2010.

On Friday, March 18, 2011, the Supreme Court affirmed the Court of Appeals in a 4-3 vote (Hunstein, Carley, and Benham dissenting). Writing for the majority, Justice Melton explained that a statute of repose sets the outer limit on a plaintiff’s claims. In this case, Rosenberg was not injured until years after the statute of repose expired, and thus never had a claim to bring against Falling Water. The dissent, authored by Chief Justice Hunstein, claims the majority lacks a logical basis for distinguishing between cases where the personal injury occurs outside the statute of repose and those where the injury occurs after the statute of repose expires.

S10A1443. O’LEARY et al. v. WHITEHALL CONSTRUCTION, LLC et al.S10X1442. WHITEHALL CONSTRUCTION, LLC et al. v. O’LEARY et al.

This case involves a dispute over stormwater runoff from the construction of a house next to the O’Leary’s property. The O’Learys complained about the runoff, but nothing corrected the problem until after construction was completed. After a five-day jury trial, the trial court entered judgment for the construction company and awarded it attorneys’ fees. The O’Learys appealed to the Supreme Court, alleging a constitutional violation by the trial court’s application of the Offer of Judgment statute retroactively.

In their principal brief, the O’Learys argue that evidence was introduced that was highly prejudicial, that the trial court gave an erroneous charge, and that the retroactive application of the amended Offer of Judgment statute was unconstitutional. The construction companyresponded, arguing that the Notice of Appeal filed by the O’Learys was untimely, responding to the other issues raised, and arguing the O’Learys have no standing to challenge the Offer of Judgment statute. The O’Learys filed a reply brief.

In the cross appeal, the construction company argued that the trial court denied it attorneys’ fees under O.C.G.A. § 9-15-14, even though it awarded them fees under the Offer of Judgment provisions of O.C.G.A. § 9-11-68. The O’Learys responded that the trial court did not abuse its discretion in denying fees under O.C.G.A. § 9-15-14.

These cases are being decided without oral argument.

On Friday, March 18, 2011, the Supreme Court unanimously affirmed the trial court decision. Writing for the majority, Justice Benham explained that the O’Learys filed their Notice of Appeal after the time ran on the trial court’s ruling on the Motion for New Trial, and thus the only order the Court could review is the order granting attorneys’ fees. The Court further found that the edit to the Offer of Judgment statute after this action was filed was not a substantive change, and could operate retrospectively. The Court also found the trial court did not abuse its discretion in refusing to award fees under O.C.G.A. § 9-15-14.

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