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New Grants of Petitions for Certiorari in Civil Cases

October 6, 2011

The Supreme Court has granted two new petitions for certiorari in civil cases within the scope of our coverage in the last week. Details about both cases, which will be argued in January 2012, are below.

S11G0590. Kesterson et al. v. Jarrett et al.

This case is a medical malpractice action against a doctor for injuries allegedly sustained by a child during the labor and delivery process. The Kestertons brought this action against their medical doctor and the hospital where their daughter, Kyla, was delivered. Catherine Kesterton had her labor induced on the morning of October 20, 1998, and the labor proceeded throughout the day without incident. Around 7:34 pm, the nurse noticed there was a deceleration in Kyla’s heart rate and notified the attending physician. The doctor ordered an emergency C-section and Kyla was born. Tests taken a week later showed significant damage to Kyla’s brain and she was diagnosed with spastic quadriplegia, which is a type of cerebral palsy. The Kestertons sued, alleging the nurses and doctor were negligent in failing recognizing the signs of fetal distress earlier.

The trial court ordered a bifurcation of the trial into a liability phase and a damages phase. The doctor and hospital later moved to exclude Kyla from the courtroom during the trial and the trial court granted the motion, only allowing Kyla to be present at certain points during the liability phase. After a trial on the liability issues, the jury returned a verdict in favor of the defendants and the Kestertons appealed.

The Court of Appeals (Ellington, Doyle; Andrews concurring in the judgment only) affirmed the trial court’s decision and undertook a detailed analysis of whether it was appropriate to exclude a party to a civil case from the trial, because as a general rule, “parties to civil actions in this state have the right to be present at all stages of the trial.” The issue was one of first impression in Georgia, so the court agreed with the reasoning of a 6th Circuit case. The court determined that the trial court made all the necessary factual findings to exclude a party except for one: a finding that Kyla’s presence would “cause the jury to be biased toward her based on sympathy rather than the evidence.” The court found that this failure was harmless error in this case, but also directed that failure to make all the specific factual findings would constitute reversible error in the future.

The Kestertons filed a petition for certiorari, alleging Kyla’s constitutional rights were violated, and the defendants responded.

On October 3, 2011, the Supreme Court granted the petition for certiorari in a 5-2 vote (Thompson and Hines dissenting) to consider the first division of the Court of Appeals’ opinion, which dealt specifically with the issue of excluding Kyla from the liability phase of the trial.

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

S11G1069. Crowe v. Elder

This case is a breach of contract action arising from an alleged agreement regarding distribution of Walter Elder’s estate. Walter Elder died without a will in 2004, leaving an estate of $3 million. His widow (“Elder”) petitioned for a year’s support of $3 million and Crowe (Elder’s daughter) filed no objection. Crowe alleged she did not object in exchange for Elder’s agreement to divide the estate equally with her and the decedent’s grandsons.

Crowe initiated an action in probate court in 2007, attempting to set aside the year’s support. The probate court dismissed the action because it lacked equity jurisdiction and Crowe appealed. The superior court and the Court of Appeals both found in favor of Elder, finding Crowe had not demonstrated fraud. Crowe then filed a new action in superior court, alleging breach of contract based on the same facts as the first action. The trial court granted Elder’s motion for summary judgment that res judicata barred Crowe’s claim and Crowe appealed.

The Court of Appeals (Mikell, Smith, Adams) unanimously affirmed the trial court’s grant of summary judgment to Elder. The court found all the elements of res judicata exist. While Crowe contended the subject matters were not identical, the court found the same set of facts applied in both cases and Crowe could have raised the breach of contract claim in the first action.

Crowe filed a petition for certiorari alleging that res judicata does not apply because the probate court had no jurisdiction to hear the breach of contract issue and Elder responded.

On October 3, 2011, the Supreme Court unanimously granted the petition for certiorari to review the following issue:

  1. Did the Court of Appeals err in holding that res judicata bars Appellant’s action for breach of contract?

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

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