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This Week at the Court

July 11, 2011

The Supreme Court is holding two days of oral argument this week, hearing five civil cases. Brief summaries of each of the civil cases and the issues are below.

Due to a change in the Court’s e-filing system, we are no longer able to post links to the briefs filed in these cases.

Monday, July 11, 2011 10:00 am Sitting

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 was heard at oral argument on July 11, 2011.

S11A1207 Southern LNG, Inc. v. MacGinnitie, Comr.

This case is an appeal from a Fulton County ruling on sovereign immunity. Southern LNG stores and distributes liquefied natural gas. Southern claims it is a public utility and thus was required to file its ad valorem taxes with the state instead of with the local tax commissioner. The state refused to accept the tax returns and Southern sued, seeking a declaratory judgment and injunctive relief forcing the commissioner to accept the returns. The trial court found that Southern’s claims were barred by the doctrine of sovereign immunity and Southern appealed.

The case was heard at oral argument on July 11, 2011.

Tuesday, July 12, 2011 10:00 am Sitting

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 will be heard at oral argument on July 12, 2011.

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 will be heard at oral argument on July 12, 2011.

S11A1252 Grady v. Unified Government of Athens-Clarke County

This case involves a challenge to a noise ordinance in Athens, Georgia. Grady is a student at the University of Georgia and held a party celebrating his acceptance into law school. At 3:30 am, an Athens police officer issued a citation because she could hear the music clearly more than 100 feet away from Grady’s apartment. The general fine is $144 for a first offense, but the municipal court fined Grady $350. He petitioned for review by the Superior Court, which upheld the municipal court ruling, and Grady appealed to the Supreme Court of Georgia.

Grady argues in his brief that the ordinance is unconstitutional as a violation of free speech. The ordinance limits speech that is not harmful and there were no complaints about the music, according to Grady. “The prohibitions of the Ordinance extend far beyond speech that causes a disruption of the community or invasion of the rights of others, and encompass speech which may be completely welcome and completely in character with the community.”

Athens argues that the Superior Court properly dismissed Grady’s petition because he failed to prove legal error. The municipal court found the ordinance was narrowly tailored and has existed in some form since 1918, according to Athens.

Both sides apparently dispute the volume level in downtown Athens at 3:30 am, with Grady claiming it is “not a sheep meadow,” while the city government describes it as a “ghost town.”

The Court will hear oral argument on the case on July 12, 2011.


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