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New Grants of Petitions for Certiorari in Civil Cases

May 11, 2011

Since finishing the January Term, the Court has granted petitions for certiorari in six civil cases. Brief summaries of the issues are below, and all of these cases are set for argument in July of this year.

S10G1989. Pollman et al. v. Swan et al.

This case originated in Chatham County with claims of defective construction brought as breach of contract and negligence. In 2004, the Pollmans purchased a condominium and approximately one year later, sought damages based on defective construction. The trial court granted summary judgment on almost all claims, except for fraud against the builder. The Pollmans and the builder both appealed.

The Court of Appeals (Smith, Mikell, Adams) unanimously affirmed the grants of summary judgment against the Pollmans and reversed the trial court’s failure to grant summary judgment to all defendants on the issue of punitive damages.

The Pollmans petitioned for a writ of certiorari, claiming the Court of Appeals erred in its application of law on defective construction claims. The builders responded, opposing granting the writ. The Pollmans filed a short supplement to their petition.

On April 18, 2011, the Supreme Court unanimously granted the petition to consider the following issues:

  1. Did the Court of Appeals err in finding that a plaintiff asserting a RICO claim predicated on mail fraud must show that he relied on misrepresentations made in furtherance of a scheme to defraud? Compare Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008), with Markowitz v. Wieland, 243 Ga. App. 151, 154-155 (2) (b) (2000).
  2. Did the Court of Appeals err when it found that appellants failed to present evidence of a specific dollar amount of damages and, therefore, granted summary judgment to appellees?
The case has been assigned to the July 2011 oral argument calendar.

S11G0226. L.P. Gas Industrial Equipment Company v. Burch et al.

This case originated with a vaporizer explosion that injured Mr. Burch. The Burches filed suit against LP, and LP made an offer of settlement pursuant to OCGA § 9-11-68. After LP won a defense verdict, it sought attorneys fees and expenses of litigation. The trial court denied the motion, finding that the statute did not apply. LP appealed, claiming the statute should have applied.

The Court of Appeals affirmed the trial court in a 6-1 decision (Ellington, Miller, Barnes, Phipps, Johnson, and Doyle, concurring; Andrews, dissenting). The majority found that the law in effect at the time of the injury applied, preventing application of OCGA § 9-11-68, even though that statute was in effect at the time the litigation was filed. Judge Andrews argued that the date of the filing of litigation should be the determining factor for which version of the law was in effect.

LP petitioned for a writ of certiorari, claiming the Court of Appeals improperly expanded the prohibition against retrospective laws and also resolved a constitutional question beyond its jurisdiction. The Burches did not respond.

On April 18, 2011, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals erred in holding that OCGA § 9-11-68 does not apply to this case?
The case has been assigned to the July 2011 oral argument calendar.

S11G0478. Novare Group, Inc., et al. v. Sarif et al.

This case involves claims by individuals who purchased condominiums at the Atlantic Station Development in Atlanta. The individuals claimed that when they purchased their condos, the developer promised that any future development would not obscure the views from their windows and would not occur for at least five years. The individuals further claim that the developers knew they were placing a 46-story tower directly across from the condos. The contracts signed by the purchases included a merger clause, a disclaimer about oral advice, and a recognition that views from the unit may change over time due to additional development. The purchasers notified their developer of their intent to rescind and file claims under the Fair Business Practices Act. The trial court granted the developers’ motion for judgment on the pleadings and denied the purchasers’ motion for summary judgment. The purchasers appealed.

The Court of Appeals (Miller, Phipps, Johnson) unanimously affirmed in part and reversed in part. The Court of Appeals affirmed most of the trial court’s order, but found it improperly granted judgment on the pleadings to the developers on the fraudulent inducement claim, negligent misrepresentation claim, and Fair Business Practices Act claim. The Court of Appeals also affirmed the trial court’s rulings on discovery and summary judgment.

The developers petitioned for a writ of certiorari, and the purchases responded. The Georgia Association of Realtors filed an amicus brief in support of the petition.

On April 18, 2011, the Supreme Court granted the petition for certiorari in a 5-2 vote (Benham and Hines dissenting) to consider the following issue:

  1. Whether the Court of Appeals erred in reversing in part the trial court’s order?
The case has been assigned to the July 2011 oral argument calendar.

S11G0587. Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc.

This case involves another dispute over the proper ownership of church property. Timberridge Presbyterian Church was founded in 1829, and affiliated with the Presbyterian Church in the United States (PCUS) in 1880. PCUS merged with another Presbyterian denomination in 1983 to form PCUSA. Timberridge Presbyterian then incorporated in 1984. Timberridge claims it attempted to exercise an option pertaining to church property in 1987. Timberridge sought a declaratory judgment in 2007 that no trust existed in its property in favor of the Presbytery or PCUSA. The Presbytery filed a separate action seeking to eject Timberridge and forbidding it from using its name. Timberridge also voted to disaffiliate from PCUSA. The trial court found an express trust was created in favor of PCUSA and Timberridge’s pastor and members no longer had control of the church corporation. The church appealed to the Supreme Court, which transferred the cases to the Court of Appeals.

The Court of Appeals (Smith, Mikell, Adams) unanimously reversed the decision of the trial court in a 21-page opinion, determining that after applying “neutral principles of law” to the relevant documents, the regional body does not have a right to control the local church corporation or property.

The Presbytery petitioned for a writ of certiorari and the church responded. The Presbytery filed a supplemental brief in reply to the church’s brief.

On April 18, 2011, the Supreme Court granted the petition for certiorari in a 6-1 vote (Carley, dissenting) to consider the following issue:

  1. Did the Court of Appeals err in its application of neutral principles of law to this church property dispute?
The case has been assigned to the July 2011 oral argument calendar.

S11G0556. CSX Transportation, Inc. v. Smith

This case originated with a workplace injury in Ohio (because CSX maintains its registered office in Gwinnett County, venue for a state court Federal Employers’ Liability Act (FELA) was appropriate there). Larry Smith was a conductor for CSX was walking down stairs to a safety meeting. His foot slipped on a stair tread in a puddle of soap and he injured his knee, requiring surgery a year later. Smith sued pursuant to FELA, which is a federal tort remedy for workplace injuries of railroad employees. After a trial, the jury found in favor of CSX and Smith appealed.

The Court of Appeals reversed the trial court in a 4-3 decision (Ellington, Miller, Phipps concurring; Barnes, concurring specially; Andrews, Johnson, and Doyle dissenting). The majority found the trial court did not abuse its discretion in admitting testimony for the impeachment of Smith, but did find that the trial court failed to instruct the jury on an Occupational Safety and Health Administration regulation about the slip-resistance of stairs. Judge Barnes concurred specially, agreeing with the majority on the jury instruction issue, but not on the impeachment issue. The dissent agreed with the majority on the impeachment question, but would have found there was no evidence that CSX was cited for a violation of the particular OSHA regulation cited by Smith.

CSX petitioned for a writ of certiorari and Smith responded.

On April 26, 2011, the Supreme Court granted the petition for certiorari in a 5-2 vote (Hunstein and Benham dissenting) to consider the following issues:

  1. Whether the Court of Appeals correctly held that the trial court erred by failing to give Smith’s requested charge on 29 CFR § 1910.24?
  2. Whether the Court of Appeals correctly held that the trial court did not abuse its discretion in permitting CSX Transportation to impeach Smith regarding whether he had been taken “out of service” before he slipped on the stairs?
The case has been assigned to the July 2011 oral argument calendar.

S11G0660. O’Brien v. Bruscato

This case has criminal law origins, but involves questions regarding medical malpractice. Victor Bruscato was under the care of a psychiatrist when he killed his mother in 2002. Victor’s father brought a medical malpractice action against the psychiatrist as guardian for his son, claiming that the decision to suddenly stop Victor’s medication for a period of six weeks was a violation of the standard of care. The trial court granted summary judgment to the psychiatrist, finding that the malpractice claims were barred by the “impact rule” or on public policy grounds. Bruscato appealed.

The Court of Appeals splintered in its 4-3 decision reversing the trial court’s decision (Ellington, Miller, Barnes, Phipps concurring; Johnson concurring in part; Doyle concurring specially in part and dissenting in part; Andrews dissenting). The majority found the medal malpractice statute’s provision for “any injury” is not limited by the “impact rule.” The majority also found that the public policy concerns of a defendant profiting from his crime do not apply because Victor has not been convicted of murder even though he has been found incompetent to stand trial. Judge Doyle concurred with the majority’s decision on the “impact rule,” but dissented on the public policy decision of the majority. Judge Andrews’ dissented on both holdings of the majority, saying this is the first decision in which a resurgence of psychosis amounts to a physical injury sufficient for Victor to claim emotional distress.

Dr. O’Brien petitioned for a writ of certiorari, and Bruscato responded.

On April 26, 2011, the Supreme Court granted the petition for certiorari in a 4-3 vote (Benham, Thompson, and Hines dissenting) to consider the following issue:

  1. Whether the Court of Appeals properly ruled that Bruscato’s claim for damages is not barred by Georgia public policy?
The case has been assigned to the July 2011 oral argument calendar.
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