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Forthcoming Opinions

September 7, 2012

On Monday, September 10, 2012, the Supreme Court returns and releases opinions in 25 cases, four of which are civil within the scope of our coverage including the last case listed below which resulted in a 6-6 split of the Court of Appeals. We will update on Monday morning with summaries of the opinions released.

S11G1871. STOLTE et al. v. FAGAN et al.

This case began as a medical malpractice case by Stolte and her husband against her dentist, Fagan, and resulted in a verdict for the dentist. But the issues in the case focus on what happened at trial, specifically the use of peremptory strikes for jurors and an allegedly-improper closing statement.

At the outset of the trial, Stolte claims the trial court should have stricken four prospective jurors for cause and because the court failed to do so, Stolte was forced to use her peremptory strikes on those jurors. Then, at closing argument, Fagan’s attorney raised Fagan’s reputation as a reason for the jury to return a defense verdict. Stolte’s counsel objected, and the trial court sustained the objection. After the conclusion of Fagan’s closing argument, Stolte’s counsel objected again, requesting the court immediately instruct the jury not to concern itself with the impact on Fagan’s reputation. The court declined, but included the word “reputation” in the general charge. After the jury returned a verdict for Fagan, Stolte appealed.

The Court of Appeals (McFadden, Phipps, Andrews) unanimously affirmed the lower court decision, finding that the Supreme Court has held that if a party is required to use its peremptory strikes to exclude a juror who should have been challenged for cause, the error is not harmful if the party did not exhaust its peremptory strikes. The panel found that, while an exception exists for criminal cases, the exception does not apply to civil cases and thus Stolte did not show she was harmed by any error. The panel also found that Stolte waived any objection to the closing statement because she did not contemporaneously object and did not ask for an immediate curative instruction.

On March 19, 2012, the Supreme Court unanimously granted certiorari to consider the following questions:

  1. Did the Court of Appeals err in holding that a civil litigant must establish that she used all of her peremptory strikes before she can show harm resulting from a trial court’s refusal to strike an unqualified juror? See Harris v. State, 255 Ga. 464 (1986); Wallace v. State, 275 Ga. 879 (2002).
  2. Did the Court of Appeals err in holding that plaintiffs acquiesced and/or waived their objections to comments by defense counsel in closing argument about the defendant dentist’s professional reputation?

The case was heard on June 8, 2012.

S12A0848 Adkins et al. v. Cobb County

This case began with an eminent domain proceeding against property owned by a Marietta attorney and a Cobb County Juvenile Judge, but is before the Supreme Court as a challenge to the constitutionality of the statute related to condemnation proceedings.

Cobb County condemned property owned by Adkins and Whitfield in order to build a sidewalk for a public works project. The county filed the declaration of taking on January 11, 2010 and Adkins and Whitfield acknowledged service on March 1, 2010. On March 31, 2010, Adkins and Whitfield answered, opposing the condemnation. The county moved to dismiss, claiming that Adkins and Whitfield had only until March 12, 2010 to answer and have a hearing based on O.C.G.A § 32-3-11(c), which limits the time for a hearing to “no later than 60 days from the date of filing of the declaration of taking.” The trial court granted the county’s motion and Adkins and Whitfield appealed, arguing the statute is unconstitutional as a violation of their due process rights.

This case was heard at oral argument on April 16, 2012.

S12A0852. State of Georgia et al. v. Singh et al.S12X0973. Singh et al. v. State of Georgia

These cases involve the constitutionality of the Georgia in personam RICO statute. In late 2010, Clayton County brought a forfeiture action against Singh, alleging that his gas station was an illegal commercial gambling operation engaging in racketeering activity. The trial court granted the state’s request for a receiver, who took possession of the gas station and the assets derived from the alleged racketeering activity. In February 2011, Singh filed a motion to dismiss the state’s case, on the basis that the in personam counts of the complaint were unconstitutional. The trial court granted the motion based on a 2009 Supreme Court case, and the state appealed, alleging the trial court misinterpreted the 2009 case. In a cross appeal of the trial court’s denial of the motion to dismiss the remaining counts, Singh argues the machines were not illegal gambling devices.

The case was heard at oral argument on May 7, 2012.

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 was heard at oral argument on June 4, 2012.


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