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This Week at the Court

October 1, 2012

On Monday, October 1, the Supreme Court began two days of argument scheduled for this week. No additional oral argument days within the month are currently scheduled. Brief summaries of the cases and issues being argued are below.

Monday, October 1, 2012 10:00 am Sitting


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 will be heard on October 1, 2012.


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 will be heard on October 1, 2012.

S12Q1648 Holland et al. v. Caviness

This case began with an injury from a train wreck but is now a proceeding by a client against his former lawyer. After being injured, Caviness attempted to bring suit against CSX under the Federal Employers Liability Act (FELA). But Caviness’ then-attorney (Holland) missed the statute of limitations and the court dismissed the FELA action on March 10, 2008 on that basis. Caviness filed the present litigation on July 8, 2009 and it was removed to federal court. After striking an expert report, the court entered summary judgment for Holland on the legal malpractice claim, but allowed the claim for breach of fiduciary duty to go to trial.

After Caviness completed his case in chief, the district court granted the Defendants’ motion for judgment as a matter of law regarding the issue of damages from the loss of the settlement offer, but denied the motion as to mental distress damages, making OCGA 51-12-6 applicable. The jury then returned a $700,000 verdict in favor of Caviness pursuant to that Code section.

Defendants filed a motion for new trial, asserting that evidence of Defendants’ worldly circumstances (including valuable houses and new cars) should not have been admitted because a jury cannot consider those circumstances when awarding damages under OCGA 51-12-6.

On May 30, 2012, the District Court certified the following question to the Georgia Supreme Court:

  1. Is it proper for a jury to consider a defendant’s worldly circumstances when deciding the amount of damages that should be imposed under OCGA 51-12-6?

The case will be heard on October 1, 2012.

S12A1599 City of Suwanee v. Settles Bridge Farm, LLC

This case is a direct appeal regarding the constitutionality of an ordinance adopted by the City of Suwanee. In 2006 and 2007, Settles Bridge Farm, LLC purchased a number of acres that were zoned high-density residential that did not require any special approval before construction of a school. A private school approached Settles Bridge Farm in 2008 and agreed to purchase the property. After learning of the contract, the City of Suwanee adopted a moratorium banning any new building permits and subsequently adopted an amendment requiring most construction in an area zoned residential must go through a special use review.

Settles Bridge Farm filed suit, alleging the ordinance was unconstitutional as applied to them and the trial court agreed. The trial court then awarded $1.8 million in damages in addition to more than $460,000 in interest and the City of Suwanee appealed.

Tuesday, October 2, 2012 10:00 am Sitting

S12A1720 Barham et al. v. City of Atlanta

This case is a direct appeal from a Fulton County Superior Court ruling regarding cheating on the City of Atlanta’s promotional examination for firefighters. The case is a class action suit alleging that fire chiefs gave information about the content of a promotional examination to favored firefighters before the test to give them an unfair advantage. After a trial, the jury returned a verdict in favor of the plaintiffs, finding that cheating occurred and that the city acted in bad faith. The court then put a permanent injunction in place, requiring a new test and placing a requirement regarding scores for those who scored high on the test previously.

The primary jury verdict is on appeal before the Court of Appeals, but four firefighters affected by the injunctive relief appealed directly to the Georgia Supreme Court, requesting relief from the requirements placed by the trial court on those who previously scored high on the test.

S12A1068 Burgess v. Liberty County Board of Elections et al.

This case is an election challenge regarding the 2011 Hinesville City Council elections. Burgess qualified to run for City Council in 2011. After a challenge by voters in the district, the Board of Elections determined that Burgess had not lived in the district for the 12-month period required, based in part of the fact that Burgess served on the city council of Allenhurst until 2011, and removed him from the ballot. Burgess appealed the decision, but while that decision was on appeal, the Board issued a decision in a second challenge to Burgess’ qualifications which Burgess did not appeal. The trial court rejected Burgess’ appeal of the first decision because he failed to appeal the second decision. Burgess then appealed to the Supreme Court.


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