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Forthcoming Opinions

June 10, 2011

On Monday, June 13, 2011, the Supreme Court of Georgia will release opinions in 16 cases, four of which are civil. Brief summaries of the issues in each civil case are below, and we will post links to the opinions when they are released on Monday.

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 heard oral argument on January 24, 2011.

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 Court heard argument on the case on January 24, 2011.

S10G1343S10G1345. DWIGHT BROWN et al. v. EDGAR “BO” POUNDS et al.

This case originated with challenges to the management structure of Cobb Electric Membership Corporation.  After litigation against the Board of Directors of Cobb EMC, the parties reached a proposed Settlement Agreement that included a provision regarding a meeting of shareholders with a vote.  After the Agreement was made a final judgment by the trial court, the Cobb EMC Board voted to change its bylaws and instituted proxy voting, among other changes.  The plaintiffs filed an emergency motion to enforce the settlement, and the trial court found that many of the amendments adopted by the Board were valid.  The plaintiffs appealed.

The Court of Appeals (Johnson, Barnes, Phipps) unanimously affirmed in part and reversed in part, finding that the Settlement Agreement was a contract to be enforced.  The Court of Appeals panel found the amendment related to proxy voting was contrary to the terms of the Agreement, but also found that the other bylaw amendments relating to the business that could be conducted at member meetings were outside the bounds of the Agreement.  The panel further found that the distribution of Cobb EMC’s own proposed resolutions violated the Agreement.

Cobb EMC filed a petition for writ of certiorari, arguing that the Court of Appeals failed to defer to the trial court’s interpretation of the Settlement Agreement. Cobb EMC was joined by an amicus brief in support of its application from an Emory Law Professor.  Plaintiffs responded in opposition to the petition, arguing that there is no issue of great concern or gravity in the legal interpretation of the Agreement.  Cobb EMC filed a reply brief in support of its petition.

On November 1, 2010, the Supreme Court unanimously granted the petition for certiorari (without Justices Hines and Nahmias) to consider the following issue:

  1. Did the Court of Appeals err in holding that the amendment to Cobb EMC’s bylaws, allowing for voting by proxy, violated the settlement agreement previously entred into by the parties?

Cobb EMC filed their principal brief, and plaintiffs responded.  David McGinnis filed aprincipal brief, and appellees responded.  Cobb EMC filed a supplemental brief, to which the plaintiffs also responded.

The Court heard oral argument on the case on February 7, 2011.

S11A0023. Fulton County et al. v. Action Outdoor Advertising JV, LLC et al.S11A0101. City of Sandy Springs et al. v. Action Outdoor Advertising JV, LLC et al.

This case originated from decisions made by the Fulton County Board of Zoning Appeals denying sign permit applications to place billboards on land in Fulton County.  The advertisers challenged the decision in Superior Court, and that court later found portions of the sign ordinance unconstitutional.  The Georgia Supreme Court affirmed the ruling.  Additional advertisers sought to construct signs, and joined in the present litigation.  Faced with six cross-motions for summary judgment, the trial court granted partial summary judgment to the advertisers, relying on language in the Supreme Court’s previous decision related to the scope of the unconstitutionality of the sign ordinance.

The county applied for interlocutory appeal and the advertisers responded.

On July 30, 2010, the Supreme Court granted the petition for interlocutory appeal in a 6-1 vote (Thompson dissenting) to review the following issue:

  1. Whether the trial court erred when it granted plaintiffs’ motions for partial summary judgment and ordered defendants and intervenors to permit plaintiffs to construct their signs.

Appellant Fulton County argued in its principal brief that the trial court misapplied the Supreme Court’s previous decision on billboard sites, applying a facial versus as-applied analysis, among other claims.

Appellees KH Outdoor and Granite State Outdoor argued in response, recounting the history of Fulton County’s refusal to grant advertising permits, and arguing that the trial court’s decision comports exactly with the Supreme Court’s previous decision.

Appellees Sandy Springs, Milton, Johns Creek, and Alpharetta filed a brief, arguing that the trial court was incorrect and was prohibited from issuing the relief it issued.

Appellees Action Outdoor, Boardworks Outdoor, Steve Galberaith, and Larry  Roberts filed a brief, also arguing that the trial court had properly granted the relief sought, relying on the Supreme Court’s previous decision in this case, and arguing that their rights to construct their signs were vested.

Appellees KH Outdoor and Granite State Outdoor also filed a supplemental brief to address claims relating to the brief of the cities of Sandy Springs, Milton, Johns Creek, and Alpharetta.

In the related case appealing from the same order related to billboard applications in Fulton County, Sandy Springs appealed from a denial of summary judgment where the trial court judge ordered the construction of signs within the jurisdiction of the cities.

Appellants Sandy Springs, Milton, Johns Creek, and Alpharetta filed their principal brief, arguing that the signs violate the overlay district standards, the sign companies hold no legal interest sufficient to vest their rights, and that the trial court’s decision violates the constitutional rights of the cities.

Appellees KH Outdoor and Granite State Outdoor responded, arguing that the superior court’s decision was correct because the entire framework of the ordinance had been invalidated, the reliance on the overlay regulations is incorrect, and the Plaintiffs’ rights have vested.

Appellees Action Outdoor, Boardworks Outdoor, Steve Galberaith, and Larry Robertsresponded, also arguing that the overlay districts do not prohibit the signs, the applications are complete and not subject to denial, and thus the Appelles are entitled to construct their signs.

The Georgia Municipal Association filed an amicus brief in support of the Appellant cities, arguing that the order threatens the sovereignty of Georgia cities.  KH Outdoor and Granite Statefiled a response to the amicus brief filed by the Municipal Association.

The cases were heard together at oral argument on Tuesday, February 15, 2011.

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