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Next Week at the Court

June 2, 2012

On Monday, June 4, 2012, the Supreme Court of Georgia returns for two days of oral argument. The Court will hear a total of three days of oral argument in the month of June, with its last day for argument this month set for June 11. Brief summaries of the civil cases within the scope of our coverage being argued are below.

Monday, June 4, 2012, 10:00 am Sitting

S11G1792. LEITCH et al. v. FLEMING

In this case, the District Attorney for the Stone Mountain Judicial Circuit sued the judges of the Magistrate Court of DeKalb County, seeking a ruling regarding the proper evidentiary standard before the magistrate court. In 2008, the Supreme Court ruled in this case that the mandamus approach originally taken by the DA was improper, but that a declaratory judgment action would be proper. Upon remand, the DA amended her petition to assert a declaratory judgment claim now at issue–that the DA faced uncertainty as to her ability to rely on hearsay evidence alone to establish probable cause to have a case bound over to the proper court.  The trial court granted the DA’s motion for summary judgment and the magistrate court appeals.

The Court of Appeals (Miller, Ellington, Doyle) unanimously affirmed in part and reversed in part, finding that trial court could find the declaratory judgment action was brought properly and that hearsay evidence must be admitted as legal evidence at preliminary hearings. The Court of Appeals reversed the portion of the trial court’s order related to the enforcement of a complaint to the Judicial Qualifications Commission, finding that ruling was merely advisory.

On March 5, 2012, the Supreme Court granted certiorari in a 4-3 decision (Carley, Hines, Melton dissenting) to consider the following question:

  1. Whether the Court of Appeals erred in determining that declaratory judgment is an appropriate remedy in this case.

The case will be heard at oral argument on June 4, 2012.


This case involves whether an injured employee’s later injury constituted a “fictional new injury” or a “change in condition.” Scott was injured in a workplace accident in 1996, resulting in the partial amputation of her foot. Scott was on temporary total disability for approximately ten months, and then returned to work. But as a result of the prosthesis she had to wear, she had significant knee problems and underwent knee surgery in 1997. Scott continued to work for the next 12 years, but the knee problems and pain associated with them became progressively worse. Eventually her physician recommended she stop working altogether in September 2009, and she sought workers’ compensation benefits. Scott argued her inability to work was the result of a fictional new injury on the date her doctor first held her out of work. Shaw argued that her inability to work was because of a change in condition, and thus the statute of limitations barred her claim. The ALJ awarded benefits, and the full Board affirmed the award. Shaw appealed to the superior court, which also affirmed the award. Shaw then filed a discretionary appeal.

The Court of Appeals (Dillard, Smith, Mikell) unanimously reversed the lower decisions, concluding that the injury could only be characterized as a change in condition because the Scott originally received benefits, returned to work, and only gradually worsened. The Court of Appeals found that, because the injury was a change of condition, the statute of limitations barred her new claims.

On March 19, 2012, the Supreme Court granted certiorari in a 4-3 vote (Carley, Benham, and Thompson dissenting) to consider the following question:

  1. Did the Court of Appeals err in concluding that the concept of a “fictional new accident” cannot apply to situations where an employee who has suffered a compensable injury returns to work after receiving workers’ compensation benefits as a result of that injury and thereafter suffers a progressive worsening of his condition that forces the employee to cease work. Central State Hosp. v. James, 147 Ga. App. 308 (1978); R.R. Donnelley v. Ogletree, 312 Ga. App. 475 (2011).
The case will be heard at oral argument on June 4, 2012.

Monday, June 4, 2012 2:00 pm Sitting

S12A1174. Smith et al. v. Ellis

This case comes to the Supreme Court in an unusual posture: it was transferred from the Court of Appeals because the Court of Appeals equally divided on the issue in a 6-6 vote. As a result, the case was transferred to the Supreme Court to resolve the appeal of the trial court’s ruling.

The case involves an accidental shooting. Smith and Ellis both worked for the Knight Group, which was building houses in Forsyth County in 2009. Ellis asked Smith if they could meet to shoot guns on one of the properties being built. Smith did some work on the day they were to shoot, and as he was gathering his tools, Smith was accidentally shot by Ellis while Ellis was attempting to clear a jam in his gun.

Smith sued the Knight Group for worker’s compensation benefits and reached a settlement that paid Smith in exchange for his agreement that he did not sustain a compensable injury. The Board of Worker’s Compensation approved the settlement, including the denial of employer’s liability. Smith then sued Ellis for negligence, but the trial court determined that the exclusive remedy provision of the Worker’s Compensation Act barred any future litigation. Because Smith filed a claim that his injury was work-related and then settled that claim, the court found, he could not then file a subsequent lawsuit claiming the injury was not work-related. Smith appealed to the Court of Appeals, which equally divided on the question, resulting in the transfer to the Supreme Court.

The case will be heard at oral argument on June 4, 2012.

Tuesday, June 5, 2012 10:00 am Sitting


This case began when Honda decided to place a new sales and service dealership in Cumming, Georgia. WMW operated a Honda dealership and service center since 1976. The dealership is located in Roswell and the service center is located in Alpharetta. When Honda notified WMW that it planned to open a new facility in Cumming, WMW sued Honda and the proposed franchisee under the Georgia Motor Vehicle Franchise Practices Act. The trial court concluded WMW lacked standing to challenge a new dealership and dismissed the case. WMW appealed.

The Court of Appeals affirmed in a 5-2 decision (Smith, Barnes, Andrews, Mikell and Dillard voting to affirm; McFadden and Adams dissenting). The majority determined that although WMW was a dealer under the statute, the eight-mile radius was determined from the location of the corporation. The service center in Alpharetta was not a dealership for purposes of the statute and thus the trial court ruled correctly that WMW lacked standing. Writing in dissent, Judge McFadden would have found that, because a corporation can occupy more than one place at a time, the definition of “dealership” includes all assets of the dealership, wherever located.

On March 5, 2012, the Supreme Court granted certiorari in a 5-2 decision (Thompson and Hines dissenting) to consider the following question:

  1. Did the Court of Appeals err in finding that a corporation owning an automobile dealership with multiple locations lacks standing to challenge the establishment of a new dealership unless it is to be located within the “relevant market area” surrounding the corporation’s principal place of business, see OCGA §§ 10-1-622 (1), and 664 (b)?

The case will be heard at oral argument on June 5, 2012.


This case presents an apparent conflict between the Federal Arbitration Act and Georgia law. It began when American General Financial Services filed a collection against Jape to recover on a loan Jape obtained from American General. Jape counterclaimed, alleging breach of contract. When Jape filed his counterclaim, American General moved to compel arbitration and stay the proceedings pending arbitration. The trial court denied the motion, finding that American General waived its right to arbitrate the counterclaim by filing a collection action in the trial court. American General requested a certificate of immediate review and when the trial court did not issue it, American General filed a notice of direct appeal.

The Court of Appeals dismissed the notice of appeal for lack of jurisdiction, finding that American General failed to obtain a certificate of immediate review for the motion to compel arbitration and stay proceedings.  (Thanks Hunton & Williams LLP for providing a copy of the Court of Appeals decision that was not otherwise available.)

On March 5, 2012, the Supreme Court granted certiorari in a 4-3 vote (Hunstein, Carley, and Hines dissenting) to consider the following question:

  1. Did the Court of Appeals err in finding that the Federal Arbitration Act’s provision allowing direct appeals from orders denying motions to compel arbitration, see 9 U.S.C. § 16 (a) (1) (B), does not preempt Georgia’s procedural rules which require that appeals of interlocutory orders come by application?
The case will be heard at oral argument on June 5, 2012.

S12A1228. GFI Management Services, Inc. v. Medina

This case is an appeal of a trial judge’s ruling that the apportionment of damages requirements of the Tort Reform Act of 2005, located in OCGA 51-12-33, are unconstitutional. The case began when Medina was robbed and shot in 2007 at an apartment complex owned by GFI.  Medina sued for his injuries, and GFI sought apportionment of damages pursuant to OCGA 51-12-33, requiring apportionment of damages. Medina argued that the permissive provisions of 51-12-31 applied, not requiring apportionment. The trial court found that OCGA 51-12-33 was unconstitutionally vague when compared to OCGA 51-12-31 and GFI appealed.

The case will be heard at oral argument on June 5, 2012.


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