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Forthcoming Opinions

September 9, 2011

As part of its return from August recess, the Supreme Court of Georgia will release opinions in 27 cases on Monday, five of which are civil. Brief summaries of the civil cases in which opinions are expected are below and we will update on Monday morning with summaries of the opinions.

S11A0760. City of Statesboro et al. v. Dabbs et al.S11X0761. Dabbs et al. v. City of Statesboro et al.

This case involves a dispute over whether the City of Statesboro followed the Open Meetings Act requirements of Georgia law. The city manager for Statesboro admitted that the city conducted special meetings on April 1 and April 19, 2010 about its fiscal year 2011 budget without properly posting a notice or agenda. In spite of the lack of notice, the city conducted official business at the special meetings. After plaintiffs sued, the trial court found the city in violation, awarded attorneys’ fees to plaintiffs, and enjoined the city from conducting any further meetings in violation of the Open Meetings Act.

The City appealed, claiming the trial court erred in awarding attorneys’ fees and also erred in providing injunctive relief without a proper request from plaintiffs. Plaintiffs appealed, claiming the trial court erred by not awarding the full amount of attorneys’ fees sought. The Supreme Court has jurisdiction over the appeal because it involves a grant of injunctive relief.

The City filed its principal brief and plaintiffs responded. Plaintiffs also filed their cross-appeal principal brief and the City responded.

The Supreme Court heard oral argument on the case on May 16, 2011.

S11A1102. Wilcox et al. v. Fenn et al.

This case challenges the constitutionality of a state law shielding local government employees from personal liability while on official business. The case began with a car wreck, caused by a police vehicle colliding with Wilcox’s car on I-16. Wilcox was severely injured and his son was killed. Wilcox sued the police officers in their individual capacities and the trial court granted the officers’ motion for summary judgment, finding they were protected by official immunity. The trial court also denied Wilcox’s motion for partial summary judgment, finding that O.C.G.A. § 36-92-3 was constitutional.

Wilcox appealed and the Supreme Court has jurisdiction due to the constitutional issue. Wilcox argued in his principal brief that the section is unconstitutional because it is not part of the State Tort Claims Act. The officers responded, arguing that the General Assembly had authority to provide immunity for local government officials and exercised that authority in O.C.G.A. § 36-92-3. Wilcox filed a reply brief.

The case was heard by the Court on June 13, 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.”

Grady filed a supplemental brief, and Athens responded. The Association of County Commissioners of Georgia also filed an amicus brief in support of Athens-Clarke County.

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

S11G0417., LLC et al. v. Walker

This case arises from a lawsuit by a former seller of AmeriSciences health and nutrition products. Walker bought and sold AmeriSciences products for several years before ending her relationship with the company. At that point, Walker was holding more than $150,000 of inventory. Walker notified AmeriSciences that she intended to sue for failing to notify her of her statutory right to require the company to repurchase her inventory. While Walker waited for the statutory period before filing a Fair Business Practices Act (FBPA) claim, AmeriSciences filed a declaratory judgment action in Texas, seeking a ruling that the forum selection clause was binding. After the Texas court ruled, AmeriSciences claimed that ruling was res judicata. The trial court agreed, granting AmeriSciences summary judgment on all the claims.

The Court of Appeals (Barnes, Blackburn, Pope) unanimously reversed the trial court, finding that claims under the Fair Business Practices Act are not contract claims, making the Texas ruling on a contractual forum select clause inapplicable. In addition, the Court of Appeals found Walker had shown sufficient evidence of damages to survive summary judgment and that Walker stated sufficient claims against the individual defendants.

AmeriSciences petitioned for certiorari, arguing that the Court of Appeals decision would apply Georgia law in any policy area instead of extending full faith and credit to other states’ decisions, and that forum selection clauses will be invalid in FBPA claims. Walker responded, arguing that the Texas case attempts to instruct Georgia courts how to apply Georgia law, and noting that the Supreme Court had previously denied two other petitions for certiorari on the same issue. AmeriSciences filed a short reply brief in support of its petition.

On March 7, 2011, the Supreme Court unanimously granted the petition for certiorari to consider the following issues:

  1. Whether the Court of Appeals properly analyzed the effect of the Texas judgment, the applicability of the forum selection clause, and the appropriateness of the exercise of personal jurisdiction over the individual defendants.
  2. Whether the Court of Appeals properly interpreted the Georgia Sale of Business Opportunity Act in reaching its determination that Walker’s complaint stated a viable claim against the individual defendants.

Amerisciences filed its principal brief and Walker responded. Amerisciences then filed a supplemental brief, leading to a supplemental brief from Walker, and a second supplemental brief from Amerisciences.

The case was heard by the Court on June 13, 2011.

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 from 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?

Dr. O’Brien filed his principal brief, and Bruscato responded. Dr. O’Brien filed a supplemental brief and Bruscato responded to that brief as well.

The case was heard on July 18, 2011.


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