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New Grants of Petitions for Certiorari in Civil Cases

September 7, 2011

The Supreme Court granted several new petitions for certiorari in civil cases before and after returning from its August recess. The following civil cases will be briefed and heard by the Supreme Court.

S11G1047. Cardinale v. City of Atlanta et al.

This case concerns the enforcement of Georgia’s Open Meetings Act. The Atlanta City Council held an elected officials’ retreat and advertised as a public meeting. During the retreat, Council members voted on whether to amend their rules on public comment at committee meetings. The minutes do not reflect how the individuals voted, but merely state that the membership was “not in support of amending the existing law.”

Cardinale was unable to obtain the exact vote and filed a pro se action, claiming he had a right to detailed information on which members voted for and against the rule change. The trial court granted the City’s motion to dismiss, finding that the Open Meetings Act did not require a detailed vote.

The Court of Appeals (McFadden, Phipps,  Andrews) unanimously affirmed the trial court ruling, finding that the Open Meetings Act did not require the disclosure of names in a non-roll-call vote, and that Cardinale’s complaint did not contain an allegation of an advertising violation.

Cardinale filed a pro se petition for certiorari and the City did not respond.

On July 11, 2011, the Supreme Court granted certiorari in a 5-2 vote to consider the following question:

  1. Whether the Court of Appeals erred in interpreting the Open Meetings Act to allow the minutes of a public meeting not to record “the name of the persons voting against a proposal or abstaining” where the vote was not taken by roll-call and was not unanimous. See OCGA § 50-14-1 (e) (2).

Cardinale filed his principal brief, alleging the Act requires minutes to include the names of individuals voting for or against proposals in non-roll-call votes that are not unanimous. The City responded, arguing the plain language of the statute supports the Court of Appeals’ determination.

According to Cardinale, the Court has also requested an amicus brief from Attorney General Sam Olens on the Open Meetings issue.

The case will be heard at oral argument on October 24, 2011.

S11G0557. Leibel et al. v. Johnson

This case involves a legal malpractice claim brought by a pediatric neurosurgeon against her former attorney, Steven Leibel. Mary Johnson, then represented by Leibel, filed suit against a hospital in 1996 for damages related to claims of age and gender discrimination. The hospital was granted summary judgment, and Leibel filed a motion for reconsideration after the deadline, and then filed an untimely appeal with the Eleventh Circuit, which was dismissed. Johnson then sued Leibel, claiming he failed to introduce evidence that would have created issues of fact and failed to file a timely notice of appeal. A jury awarded Johnson $2 million in damages (increased to $2.76 million) and Leibel filed a motion for JNOV and a motion for a new trial. The trial court granted the motion for a new trial, but denied the motion for JNOV.

The Court of Appeals (Doyle, Andrews, Ellington) unanimously found the trial court erred by granting the motion for new trial, and affirmed the denial of the motion for JNOV. As part of its decision, the Court of Appeals found the trial court correctly allowed the admission of expert testimony on the ultimate issue because the jury requires expert testimony on the issue of causation in a legal malpractice case, the same standard as medical malpractice cases.

Leibel petitioned for certiorari based on the trial court allowing expert testimony issue on the ultimate issue and based on alleged juror misconduct. Johnson responded, arguing the testimony was admissible and there was no issue of juror misconduct. Leibel also filed a reply.

On September 6, 2011, the Supreme Court unanimously granted the petition for certiorari to address the following issue:

  1. Did the Court of Appeals err by concluding that expert testimony is “admissible to prove proximate cause in those legal malpractice cases in which a lay person could not competently determine whether or not the negligence of the attorney proximately caused the plaintiff’s damages, i.e., whether or not the plaintiff would have prevailed in the underlying action?”

The case has been assigned to the January 2012 oral argument calendar.

S11G0907. Crisler et al. v. Haugabook et al.

This case originally involved an attorney who falsely claimed he obtained a $1 million settlement for his clients. The attorney transferred $1 million to the clients, the Crislers, using a check-kiting scheme and the Crislers refused to return the money after the scheme was uncovered. The Court of Appeals reversed a trial court determination and instructed the court to enter judgment in favor of Haugabook, finding the Crislers received $1 million to which they were not entitled.

On remand, the trial court granted summary judgment as directed, but several weeks later, Haugabook amended his complaint, adding a prayer for prejudgment interest and filed a motion for entry of final judgment of prejudgment interest. The trial court awarded prejudgment interest at the legal rate, and the Crislers appealed.

The Court of Appeals (Smith, Mikell, Adams) unanimously affirmed the trial court’s grant of prejudgment interest to Haugabook, finding the award of prejudgment interest is mandatory for liquidated damages.

The Crislers filed a petition for certiorari, arguing the Court of Appeals ignored precedent which prohibits the award of prejudgment interest and claiming the amendment to the complaint was made without leave of the court. Haugabook responded, arguing the award of interest was proper.

On September 6, 2011, the Supreme Court unanimously granted the petition for certiorari to address the following issue:

  1. Whether a party must make a prayer for prejudgment interest under OCGA § 7-4-15 and if so whether it can be made without leave of court following the grant of summary judgment.
The case has been assigned to the January 2012 oral argument calendar.

S11G1170. Greene County School District v. Circle Y Construction, Inc.

This case originates from a construction contract with the Greene County School District. In 2008, the district and Circle Y entered into a contract for improvements and additions to the school district’s facilities paid for through a local option sales tax. The contract provided for termination upon seven days’ notice, but did not provide a specific termination date. After 11 months, the district gave notice to Circle Y that it was terminating the contract. Circle Y sued for breach of contract, claiming the termination was without cause and the district failed to pay for work already performed under the contract. The school district filed a motion to dismiss for failure to state a claim, alleging the contract was void based on the prohibition on multi-year contracts contained in OCGA § 20-2-506 and that the claims for restitution were barred by sovereign immunity. The trial court denied the motion to dismiss and the Court of Appeals granted the interlocutory application to review the ruling.

The Court of Appeals (Miller, Phipps, McFadden) unanimously affirmed the trial court decision denying the motion to dismiss the breach of contract claim. The Court of Appeals found that it was an issue of first impression whether a multi-year contract arising from the “proprietary functions” of the district is exempt from the other requirements of OCGA § 20-2-506. The Court of Appeals determined the statute intended flexibility when proprietary functions were at issue, and therefore the contract was not void. In addition, the voters of the county approved the projects through the local option sales tax, which also allowed the district to bypass the multi-year rule.

The school district filed a petition for writ of certiorari, arguing that the Court of Appeals’ decision effectively eliminated the limitations on multi-year contracts. Circle Y responded, arguing the Court of Appeals’ decision was correctly decided.

On September 6, 2011, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Did the Court of Appeals err in holding that a contract between a school district and a private company for services regarding the renovation and repair of school facilities qualifies as a contract covering a proprietary function within the meaning of OCGA § 20-2-506 (h) so as to eliminate the need for the contract to comply with the provisions of OCGA § 20-2-506 (b)?

The case has been assigned to the January 2012 oral argument calendar.

One Comment
  1. Cliff Head permalink
    September 7, 2011 2:22 pm

    FYI, Firefox will not display the July cases at There is junk in the page that needs to be cleaned up. Internet Explorer renders the page properly despite the filler.

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