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Released Opinions

October 7, 2013

This morning, the Supreme Court of Georgia released opinions in 18 cases and will also hear argument in four cases. Five of the opinions released are within the scope of our coverage and are summarized below.

S12G1915. RUTTER v. RUTTER

This case began as a divorce proceeding, but now involves what happens when the legislature amends the same statute during the same legislative session. Charles Rutter attempted to exclude any evidence his wife, Stacy, may have gained from video cameras she had installed in their marital residence. Under Georgia law, one generally cannot conduct video surveillance of another person in a private place without his consent. But O.C.G.A. § 16-11-62(2)(C) contains an exception for video surveillance conducted “within the curtilage of [her own] residence.” The trial court denied the motion to exclude and certified its denial for immediate review.

The Court of Appeals (Blackwell, Mikell, Miller) unanimously affirmed the trial court decision. The Court of Appeals first reviewed a key issue. Subparagraph (2)(C) of O.C.G.A. § 16-11-62 was added by HB 1576, approved by the Governor on April 20, 2000. But on April 27, 2000, the Governor approved SB 316, which stated that it struck the existing version of O.C.G.A. § 16-11-62 and replaced it with a new section that did not contain subparagraph (2)(C). The Court determined that, due to the sequence of events, there was no repeal by implication accomplished by SB 316. The statutory provisions of SB 316 were not clearly repugnant to subparagraph (2)(C) and the version of O.C.G.A. § 16-11-62 that was being amended by SB 316 was that in effect on the day the General Assembly passed it. The Court of Appeals then determined the trial court properly applied subparagraph (2)(C) to deny the motion to exclude.

On January 22, 2013, the Supreme Court granted the petition for certiorari in a 5-1 vote (Benham dissenting; Blackwell disqualified) to consider the following questions:

  1. Did the Court of Appeals err in its determination that paragraph 2 (C) of the version of OCGA § 16–11–62 contained in HB 1576 survived the later enactment of SB 316 which set forth an amended version of OCGA § 16–11–62 which does not contain paragraph 2 (C)?
  2. If paragraph 2 (C) of OCGA § 16–11–62 survives, did the Court of Appeals correctly interpret its meaning?

The case was heard on April 2, 2013.

On October 7, 2013, the Supreme Court reversed in a 6-1 decision (Hunstein, dissenting). Writing for the Court, Chief Justice Thompson explained that the subsequent enactment of SB 316 eliminated the “curtilage” exception. But because repeals by implication are not favored, the Court also determined that the subparagraph (2)(C) was in irreconcilable conflict with the provisions of SB 316. Under one version, the conduct is lawful and other the other it is unlawful, making it impossible for the statutes to stand together. Justice Hunstein would have found the provisions were not in conflict.

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 was heard on July 1, 2013.

On October 7, 2013, the Supreme Court unanimously affirmed in part and reversed in part. Writing for the Court, Justice Benham explained that the Court of Appeals correctly found the agreements violated (c)(2) and (c)(6) but did not violate (c)(5) because they did not create discrimination between classes of providers. But the Court also found that the injunctive relief granted by the trial court went too far and vacated the permanent injunction.

S12G1964. HANKLA et al. v. POSTELL et al.

This case began as a medical malpractice action against a certified nurse midwife for an injury suffered during childbirth in 2003. Zamarion Everett sustained a brachial plexus injury (the brachial plexus is the bundle of nerves that control arm and hand movement) and his mother sued the certified nurse midwife who attended his birth. A medical doctor testified regarding the standard of care and the jury returned a verdict for the nurse midwife.

The Court of Appeals (Mikell, Miller, Blackwell) reversed the trial court’s decision, finding that the medical doctor was not competent to testify about the standard of care for a certified nurse midwife. Under OCGA § 24-9-67.1, an expert has to be from the same field to testify in a medical malpractice action, unless the expert is a physician who has supervised, taught, or instructed nurse midwives. The Court of Appeals found that supervision must have taken place within three of the last five years under (c)(2)(D) because the expert in this case was not in the same field under (c)(2)(A). The expert in this case had not supervised, taught or instructed midwives during the three years prior to Zamarion’s birth and thus the trial court abused its discretion in admitting the testimony on the standard of care.

On January 7, 2013, the Supreme Court granted the petition for certiorari in a 4-2 vote (Benham and Nahmias dissenting; Blackwell disqualified) to consider the following issue:

  1. Is a physician qualified under OCGA § 24-9-67.1 to testify as to the standard of care as to procedures performed by a nurse midwife if the physician satisfies the requirements of subsection (c) (2) (A), even if she does not satisfy the requirements of subsection (c) (2) (D)? See OCGA § 24-9-67.1 (c); Pendley v. Southern Regional Health Sys., 307 Ga. App. 82 (2) (704 SE2d 198) (2010); Anderson v. Mountain Mgmt. Servs., 306 Ga. App. 412 (2) (702 SE2d 462) (2010).

The case was heard on April 1, 2013.

On October 7, 2013, the Supreme Court unanimously affirmed the decision of the Court of Appeals. Writing for the Court, Justice Hunstein explained that the statute does not allow a physician to testify in these scenarios, even when the physician satisfies the “active practice” requirements. In order to give expert medical testimony, the Court determined that “a physician or other health care provider, regardless of her experience in ‘active practice,’ must satisfy either the ‘same profession’ requirement of OCGA § 24-7-702 (c) (2) (C) or the ‘supervision’ requirement of subparagraph (c) (2) (D).”

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 was heard on July 1, 2013.

On October 7, 2013, the Supreme Court unanimously reversed and remanded (Blackwell, concurring in Division 2 and in the judgment). Writing for the Court, Justice Hunstein explained that the merger of corporations makes them the same entity under federal and state law. The appeal was not filed by a non-party and thus the Court of Appeals should have considered the merits of the appeal instead of dismissing it.

S13A0992 Turner County v. City of Ashburn et al.

This case involves the proper allocation of the proceeds of a local option sales tax (LOST) between Turner County and its three cities. If local governments are unable to agree on how to divide LOST proceeds within 60 days of beginning nonbinding arbitration or mediation, they may file a petition for the superior court to resolve the question. When the three cities in Turner County filed this petition in superior court, the county sought to dismiss the action, claiming the statute was unconstitutional. The trial court then denied the county’s motion to dismiss and then adopted the plan proposed by the cities as the best option for the distribution of LOST proceeds and the county appealed.

The case was argued on June 4, 2013.

On October 7, 2013, the Supreme Court unanimously reversed in part and vacated in part. Writing for the Court, Justice Benham gave an extensive history of the LOST statute and then turned to consideration of the key question: whether the judicial resolution procedure of the LOST statute violates the separation of powers doctrine in the Georgia constitution. The Court then explained that the procedure does violate the separation of powers doctrine and found that portion of the LOST statute unconstitutional. The legislative amendment in 2010 which provided the superior court to resolve the question of tax distribution allows judicial resolution of an exclusively legislative power, the power to tax.

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4 Comments
  1. Frank Keller permalink
    October 18, 2013 1:47 pm

    A ‘State’ requisition of LOST funds, with the local revenue deposited into Georgia’s ‘General Fund’, would go a long way toward avoiding any future disputes between cities & counties.

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