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Next Week at the Court

June 28, 2013

On Monday, the Supreme Court of Georgia will return for two days of oral argument and currently does not have any additional days of argument scheduled. The Court will also be releasing opinions on Monday morning. Summaries of the cases being argued are below.

Monday, July 1, 2013 10:00 am Sitting

S12G1935. SPECTERA, INC. v. WILSON et al.

This case involves a dispute between an insurer and independent eye care providers regarding the proper application of the Patient Access to Eye Care Act. Spectera is an insurer that provides eye care benefits through contracts with vision care providers. In 2010, Spectera required Wilson and other independent optometrists to sign a new agreement, which mandated that they use Spectera’s lab for making lenses instead of allowing them to use their own labs, as they had done since the mid-1980s. Wilson and others sued Spectera, claiming that the new agreement violated the Eye Care Act. After motions for summary judgment, the trial court concluded that the proposed agreement violated the Eye Care Act and issued a permanent injunction stopping Spectera from enforcing those provisions of the new agreement with regard to any eye care provider (later modified to only apply to the Wilson Group pending the appeal).

The Court of Appeals (Adams, Ellington, Phipps) unanimously affirmed in part and reversed in part, finding the trial court properly found the agreement violated OCGA § 33-24-59.12(c)(2), (5), and (6) and affirming the injunctive relief, but reversing its determination that the agreement violated subsection (c)(3). While the case involved issues of first impression in interpreting the Eye Care Act, the Court of Appeals ultimately determined that the agreement required patients to effectively purchase materials directly from Spectera.

On April 15, 2013, the Supreme Court granted the petition for certiorari in a 5-1 vote (Hines, dissenting; Blackwell, not participating) to consider the following question:

  1. Did the Court of Appeals correctly construe OCGA § 33-24-59.12 (c) of the Patient Access to Eye Care Act?

The case will be heard on July 1, 2013.

S12G2011. NATIONAL CITY MORTGAGE COMPANY v. TIDWELL et al.

This case began as a wrongful foreclosure action against National City Mortgage. At some point during the trial court proceedings, National City stopped filing pleadings and PNC Bank began filing, listing itself as successor to National City. The trial court never entered an order substituting PNC Bank as the Defendant. After summary judgment was granted to plaintiffs, PNC appealed.

The Court of Appeals (McFadden, Barnes, Adams) unanimously dismissed the appeal, finding that it lacked jurisdiction because PNC was not a party to the case. The Court of Appeals found that, because PNC had never been added as a party, it was unable to appeal the decision.

On April 15, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the Court of Appeals err when it dismissed the defendant’s appeal on the grounds that PNC Bank, N.A. lacked standing to appeal on behalf of its predecessor National City Mortgage Company?

The case will be heard on July 1, 2013.

Monday, July 1, 2013 2:00 pm Sitting

S13A0908 Rigby et al. v. Boatright et al.

This case involves who an individual’s attempt to run for the Board of Directors of the Satilla Rural Electric Membership Corporation. In 2012, Boatright submitted a petition for nomination to serve on the board of the Satilla Rural EMC. After questions were raised about his eligibility due to ownership of Pike Electric stock, Boatright liquidated his holdings. The Credentials and Elections Committee then determined that Boatright was disqualified due to his financial interest in Pike, because it is a business which Satilla contracts with. Boatright moved for reconsideration and the committee denied the request. Boatright then sued in Superior Court, requesting a mandamus to require Satilla to put his name on the ballot. The trial court granted the request, finding the Committee’s decision arbitrary and capricious and the Board appealed.

The case will be heard on July 1, 2013.

Tuesday, July 2, 2013 10:00 am Sitting

S13G0553. JOHNSON et al. v. OMONDI et al.

This case is a medical malpractice action that involves treatment in an emergency room and the proper standard of care. On December 29, 2007, Shaquille Johnson was taken by his mother to the emergency room, complaining of pain on the left side of his chest. Shaquille had undergone knee surgery eight days earlier and was examined by Omondi in the emergency room. Omondi performed a number of tests and after the pain responded to a particular medication, discharged Shaquille. Two weeks later, Shaquille complained of chest pain and had difficulty breathing. He was transported to the same hospital and later died from a bilateral pulmonary embolism (blood clot). The doctor and his practice moved for summary judgment and the trial court granted it. The Johnsons appealed.

A seven-member panel of the Court of Appeals (Ray, Andrews, Branch; Doyle and Boggs, concurring in judgment only; Miller and Phipps dissenting) affirmed the trial court in a 5-2 ruling, finding that there was no dispute of fact on the key issues involved to apply the emergency medical care statute. After analyzing the standard, the majority determined that the Johnsons failed to show that Omondi did not exercise “even slight care,” which was a necessary showing to meet the “gross negligence” standard of the statute. The dissent would have found that there were a number of disputed facts about the standard of care that Omondi provided that made summary judgment improper.

On April 29, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the Court of Appeals err in its application of the gross negligence standard for emergency room malpractice under OCGA § 51-1-29.5(c)?

The case will be heard on July 2, 2013.

S13A1288 Hertz v. Bennett, Judge

This case involves an appeal of a denial of a Georgia gun license. In 1994, when Hertz was 18 years old, he pleaded nolo contendere to three gun-related crimes, including aggravated assault with a weapon and  shooting from a vehicle. He was sentenced to probation and successfully completed it. In 2012, Hertz applied for a weapons carry license in Georgia and was denied by the probate judge because of his nolo contendere pleas. Hertz sued to compel the issuance of the license and the trial court found he was ineligible. Hertz appealed.

The case will be heard on July 2, 2013.

S13A1073 Rai v. Reid, Admr., et al.

This case comes to the Supreme Court as a result of an equally divided Court of Appeals and involves a wrongful death action. In 2000, Sparkle Reid-Rai was murdered in her apartment while her husband was at work and her five-month old daughter was with her but left unharmed. The investigation eventually led investigators to discover that her husband’s father, Chiman Rai, hired two men to kill Reid-Rai because he did not agree with his son’s marriage to an African-American woman. In 2008, Rai was convicted of murder and sentenced to life in prison. After the conviction, Reid-Rai’s father filed a wrongful death action on behalf of his daughter’s estate and his granddaughter against Rai, resulting in a $2.5 million judgment on the wrongful death claim for the granddaughter and $100,000 to Reid-Rai’s estate for pain and suffering. Rai appealed.

The Court of Appeals evenly divided on the appeal. The key question is whether the statute of limitations applies to the pain and suffering portion of the damages. Six judges (Ellington, Barnes, Phipps, Doyle, Miller, and McFadden) would have found the statute was tolled by the minority status of the granddaughter and also tolled by the fraudulent concealment as to Reid-Rai, affirming the entire award. Six judges (Andrews, Dillard, Boggs, Ray, Branch, and McMillian) would have found the judgment tolled as to the granddaughter, but not as to Reid-Rai, affirming the $2.5 million but not the $100,000 for pain and suffering.

Because of the even division of the Court of Appeals, the case was immediately transferred to the Supreme Court of Georgia under the Georgia Constitution.

The case will be heard on July 2, 2013.

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