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New Grants of Petitions for Certiorari in Civil Cases

July 5, 2012

We are woefully behind in covering new grants of petitions for certiorari from the Supreme Court of Georgia. Since we last discussed new grants, the Court has granted petitions in five cases within the scope of our coverage.

S12G0484. VILLANUEVA et al. v. FIRST AMERICAN TITLE INSURANCE COMPANY

This case began with major problems during the closing of a mortgage refinance, but now focuses on legal malpractice claims. In 2007, Villanueva was the closing attorney for a refinancing transaction involving two previous mortgages totaling nearly $1.2 million. After the closing, an employee of the law firm failed to pay off the earlier mortgages and absconded with a large portion of the funds. First American was the title insurer and paid off the previous mortgages, then sued the lawyers and others involved in the closing. The trial court granted partial summary judgment to First American and found First American was the proper party in interest. Villaneuva appealed.

The Court of Appeals (McFadden, Phipps concurring in judgment only, Andrews concurring in the judgment and divisions 1, 2, and 3 only) affirmed in part and reversed in part, determining that no enforceable contract existed between Homecomings and Villaneuva, reversing the trial court for failing to grant summary judgment to Villaneuva on the breach of contract claim. But the Court of Appeals also found as a matter of first impression that legal malpractice claims are assignable, because they generally involve right to property rather than personal injury, affirming the trial court’s decision on that ground.

On June 18, 2012, the Supreme Court unanimously granted the petition for certiorari to review the following issue:

  1. Did the Court of Appeals err in finding that legal malpractice claims can be assignable?

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

S12G0369. MCDOWELL et al. v. HARTZOG et al.

This case began with a vehicle wreck in Dalton in 2005. McDowell was driving through an intersection when another vehicle crossed in front of him, causing McDowell to attempt to steer clear of a wreck but instead hitting Hartzog’s vehicle. Hartzog sued and the jury found in favor of Hartzog. McDowell appealed.

The Court of Appeals (Mikell, Smith, Dillard) unanimously affirmed the trial court decision. The Court of Appeals determined that McDowell’s attorney did not adequately object to a jury charge on failure to obey a stop light because an objection at a charge conference was insufficient, and that other evidence had been appropriately admitted and elicited by McDowell.

On May 30, 2012, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Did the Court of Appeals err in its determination that McDowell failed to preserve his contention that the trial court improperly charged the jury on McDowell’s failure to obey a stop light?

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

S12G1049. IN THE INTEREST OF W.L.H., A CHILD

Although this is an appeal from a deprivation case, the issues involved focus on the ability of a minor to prosecute appeals in civil courts in Georgia. During a deprivation hearing, W.L.H., a 12-year old, requested to have access to the proceedings after a judge determined he would remain outside during the presentation of evidence. The judge denied the motion and excluded the child, and the child attempted to appeal.

The Court of Appeals (Adams, Barnes, Blackwell) unanimously dismissed the appeal, finding that a minor has no standing to appeal without the aid of a guardian or next friend. While recognizing exceptions in criminal and delinquency cases, the Court of Appeals analogized to prosecution of civil actions, which require a guardian to act on his behalf.

On May 29, 2012, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Does a child in a deprivation action have standing to appeal when the child is represented by counsel and the child’s guardian ad litem chooses not to appeal?

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

S12G1082. WELLSTAR HEALTH SYSTEMS et al. v. JOSEPH B. BREWER

This case involves a settlement of a worker’s compensation case. On July 7, 2009, the Board of Worker’s Compensation approved a settlement between WellStar and Brewer. The Board’s system for sending out automatic email notifications of the approval did not function correctly, and as a result, WellStar did not receive notice of the approval until August 4, 2009, when Brewer asked for a 20% late payment penalty under OCGA 34-9-15(b) because more than 20 days elapsed after approval of the settlement without payment. The ALJ required WellStar to pay the penalty, finding that the penalty was automatic under OCGA 34-9-221(f) and could not be waived. The Appellate Division reversed the ALJ’s finding, determining that the Board had discretion to waive the penalty. The Superior Court affirmed that the Board had discretion and Brewer appealed.

The Court of Appeals (Andrews, Phipps, McFadden) unanimously reversed the Superior Court, determining that the Board lacked discretion to waive the penalty. The Court of Appeals expressed no opinion on the constitutionality of issuing an award without notice, reserving that as an issue for the Supreme Court.

On May 29, 2012, the Supreme Court granted the petition for certiorari in a 5-2 vote (Benham and Thompson dissenting) to consider the following issue:

  1. Did the Court of Appeals err in holding that a penalty under OCGA § 34-9-221 (f) may be imposed without timely notice of the award.

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

S11G1839. CITY OF ATLANTA v. CITY OF COLLEGE PARK et al.

This case involves whether the City of Atlanta or the City of College Park has the right to tax businesses located in the parts of Hartsfield-Jackson Atlanta International Airport that are located in the city limits of College Park. College Park announced in 2007 that it would begin collecting occupation taxes on businesses within its city limits in the airport. Atlanta sued, seeking injunctive and other relief. The trial court determined that a 1969 agreement between the cities related to the airport was unenforceable to the extent it allowed to collect occupation taxes outside its city limits. The trial court declared that only College Park could collect taxes within its city limits, but also found that College Park could not collect taxes from Atlanta because Atlanta is a “local authority.” The trial court further found that only College Park could regulate and collect taxes on the sale of alcoholic beverages in its city limits. Atlanta and College Park appealed.

The Court of Appeals (Ellington, Andrews, Doyle) unanimously affirmed in part and reversed in part, finding that the trial court correctly decided that Atlanta could not impose taxes outside of its jurisdictional limits and College Park could collect taxes inside its city limits. But the Court of Appeals also found that the trial court incorrectly found that Atlanta was a “local authority.” Instead, College Park is able to levy taxes on the revenue-generating activities of Atlanta within College Park’s city limits. The Court of Appeals also vacated the portion of the trial court opinion regarding regulation and taxes of alcoholic beverage sales, finding that was an impermissible advisory opinion.

On May 7, 2012, the Supreme Court granted Atlanta’s petition for certiorari in a 4-3 vote (Carley, Hines, and Melton dissenting) to consider the following issue:

  1. Did the Court of Appeals err when it determined that the City of Atlanta was not a “local authority” as that term is used in OCGA § 48-13-13 (5)?

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

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