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New Grants of Petitions for Certiorari in Civil Cases

January 12, 2012

We are catching up on grants of petitions for certiorari from the last two months of last year and the beginning of 2012. In that period, the Supreme Court granted petitions for certiorari in four civil cases within the scope of our coverage. Summaries of the cases and the issues are below.

S10U1780. In Re Formal Advisory Opinion No. 86-1

Formal Advisory Opinion No. 86-1 was issued by the Georgia Supreme Court on December 17, 1987. The opinion advised that it was “ethically proper for a lawyer to serve simultaneously as a state legislator and a part-time solicitor,” while recognizing that conflicts could arise in particular cases.

On July 14, 2010, the State Bar petitioned for the withdrawal of the Formal Advisory Opinion. The Supreme Court treated the petition as a petition for discretionary review.

On November 7, 2011, the Supreme Court granted the petition for discretionary review and requested the Bar and interested parties address the following issues:

  1. Whether OCGA § 16-10-9 (a) (1) prohibits a lawyer-legislator from serving as a part-time solicitor.
  2. Whether Rule 1.16 (a) (1) of the Rules of Professional Conduct is comparable to former Standard 45 (e) and whether a lawyer would violate Rule 1.16 (a) (1) by serving as both a lawyer-legislator and a part-time solicitor.
  3. Whether FAO No. 86-1 should be withdrawn.

S11G1728. Tampa Investment Group, Inc., et al. v. Branch Banking and Trust Company, Inc.S11G1729. Legacy Communities Group, Inc., et al. v. Branch Banking and Trust Company, Inc.

These cases involve efforts by BB&T to collect on 16 promissory notes executed between 2005 and 2008 to two different entities for the development of residential subdivisions. BB&T originally foreclosed on nine of the notes and was the sole and winning bidder at the foreclosure auction. The bank then rescinded its foreclosure actions and filed suit asserting claims for the amount due under each of the notes. The trial court granted the borrowers’ and guarantors’ motion for partial summary judgment as to the notes that BB&T originally foreclosed upon (finding them unenforceable), and granted BB&T’s motion for partial summary judgment regarding the remaining notes (finding them enforceable in spite of Statute of Frauds claims).

The Court of Appeals (Ellington, Miller, Doyle) unanimously affirmed in part and reversed in part, finding that the bank abandoned foreclosure proceedings before any foreclosure sale was consummated, allowing BB&T to proceed with its recovery under the first groups of notes, reversing the trial court. The Court of Appeals also found that although the Statute of Frauds applied, partial performance saved the failure to satisfy the requirements of the Statute of Frauds, affirming the trial court’s decision on the remaining notes. The Court of Appeals thus found the bank’s claims regarding all the notes were not barred by any legal theory.

On November 7, 2011, the Supreme Court unanimously granted the petitions for certiorari to review the following issues reflecting the two divisions of the opinion:

  1. Whether the Court of Appeals erred in reversing the trial court’s grant of partial summary judgment by holding that BB&T failed to satisfy the Statute of Frauds so that no valid foreclosure sale occurred and the confirmation process under OCGA § 44-14-161 did not apply
  2. Whether the Court of Appeals erred by affirming the trial court’s grant of partial summary judgment.
The cases will be heard at oral argument on February 6, 2012.

S11G1772. Jordan v. Moses

This case originated with the dissolution of a law partnership in Brunswick. Moses and Jordan practiced together for several years prior to forming a partnership at the start of 2003. At an August 16, 2006 meeting, Jordan informed Moses he was considering dissolving the partnership, and Moses offered to serve in an “of counsel” role from her home. On a Sunday about ten days later, Jordan left a letter on Moses’ office chair purporting to dissolve the partnership effective August 31. Jordan then left town. Moses sent an email the next day stating she did not agree to dissolve the partnership. Moses’ attorney discussed the issue with Jordan, and Moses believed the firm would continue in existence. In early October, however, Jordan informed the firm’s railroad clients that the firm was dissolved, and sent out a letter in December announcing formation of The Jordan Firm.

At the beginning of 2007, Jordan filed suit asking for a declaration that the law partnership was dissolved on September 26, 2006 and that Moses was owed no further funds. Moses counterclaimed for breach of the partnership agreement, wrongful dissolution, and breach of fiduciary duty, among other claims. Jordan moved for summary judgment on the counterclaim for wrongful dissolution and the trial court granted it, in addition to granting Jordan a protective order related to discovery and ordering Moses to turn over a hard drive in her possession.

The Court of Appeals (Smith, Dillard, McFadden) unanimously reversed the trial court decision, finding that Moses presented at least one genuine issue of fact regarding her wrongful dissolution claim, preventing the trial court from granting summary judgment. In addition, the panel found there was a dispute of facts regarding the date of dissolution of the partnership and that the trial court should not have entered a blank protective order based on the number of requests.

On November 7, 2011, the Supreme Court granted certiorari in a 4-3 vote (Hunstein, Thompson, and Melton, dissenting) to consider the following issue:

  1. Whether the Court of Appeals applied the proper legal analysis in reversing the grant of summary judgment on the wrongful dissolution claim?

The case will be heard at oral argument on February 7, 2012.

S11G1814. Mayor and Alderman of the City of Savannah v. Batson-Cook Company et al.

This case originated with the construction of a parking garage in Savannah. During the construction process, a subcontractor of Batson-Cook believed it located “materially differing site conditions” upon the discovery of soft clay at the site. Batson-Cook requested an adjustment from the city based on the conditions and the city denied the claim, relying on its engineering firm’s determination that the soft clay had been in existence and discovered previous to the contract. The subcontractor then sued Batson-Cook and Batson-Cook filed a third-party complaint against the city, seeking to pass through the damages to the city if the conditions at the site were materially different.

After a trial, the jury awarded $2.77 million to the subcontractor from Batson-Cook and $15.16 million to Batson-Cook from the city, in addition to over $2 million in attorney fees and expenses. The city appealed.

The Court of Appeals (McFadden, Phipps, Andrews) unanimously affirmed the trial court decision, finding the affidavits in support of the city’s contention that the trial judge assigning himself a case where his nephew’s law firm was general counsel to Batson-Cook were insufficient to question the judge’s impartiality. The panel also found the trial court did not abuse its discretion in setting the order of parties presenting at trial or in ruling on the city’s motion for directed verdict.

On November 30, 2011, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the factual allegations presented on the motion to recuse were legally sufficient to require the motion to be presented to another judge for decision?

The case will be heard at oral argument in March 2012.


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