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Welcome Back – Next Week at the Court

January 3, 2014

The Supreme Court of Georgia returns Monday from its break over December and will hear two days of argument in a number of cases. The Court will also likely release opinions on Monday morning and will provide the list of opinions to be released by this afternoon. Summaries of the cases being argued next week are below and we will update with the list of opinions later today.

Monday, January 6, 2014 2:00 pm Sitting

S14A0114 Fulton County et al. v. City of Sandy Springs et al.

This case is a dispute between Fulton County and Sandy Springs about which government is responsible for maintaining stormwater detention ponds. In the 1970s, Fulton County obtained easements to construct and maintain two detention ponds to address surface flooding issues for homeowners. The County constructed the detention ponds inside what became the city limits of Sandy Springs in 2005. After Sandy Springs was incorporated, the city and County never signed an intergovernmental agreement regarding stormwater management. In 2009, Sandy Springs notified Fulton County that there were problems with the detention ponds that the County needed to address. Fulton County did not respond and Sandy Springs sued, seeking a writ of mandamus. The trial court determined that Fulton County was responsible for maintaining the ponds. The County appealed to the Supreme Court.

The case will be heard on January 6, 2014.

Tuesday, January 7, 2014 10:00 am Sitting

S13G1274. SEWELL, M.D., et al. v. CANCEL, M.D., et al.

This case stems from the restructuring of an anesthesiology practice (CGAS) that was under an exclusive contract to provide anesthesiology services to The Medical Center of Central Georgia in Macon. Cancel was the CEO of CGAS in 2001 when he discovered what he believed were fraudulent bills to Medicare, Medicaid, and insurance companies. After period of time and further allegations, The Medical Center sent a letter advising Cancel that it intended to cancel the agreement with CGAS in 2003. The Medical Center eventually retained Nexus Medical Group as the new exclusive provider of anesthesiology services. Nexus included several former CGAS physicians as well as other doctors, but not Cancel. Cancel and others sued, claiming breach of fiduciary duty, fraud, and other claims. A series of orders from the trial court granted summary judgment against Cancel as to all his claims and Cancel appealed.

The Court of Appeals (Phipps, Ellington, Dillard) unanimously found that the trial court correctly entered summary judgment against Cancel, but also found that a cross-appeal filed by the individual defendants was not properly before the court. The Court of Appeals determined that, because the ruling the individual defendants attempted to appeal was not issued until after the notice of appeal was filed on Cancel’s motions, the court was without jurisdiction to hear the purported cross-appeal.

On September 23, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari (Nahmias, disqualified) to consider the following issue:

  1. Did the Court of Appeals err in finding that it lacked jurisdiction to hear the defendants’ timely-filed cross-appeal to the extent that they sought review of an order entered after the plaintiffs’ notice of appeal was filed. See OCGA § 5-6-38; Rhone v. Bolden, 270 Ga. App. 712 (1) (608 SE2d 22) (2004)?

The case will be heard on January 7, 2014.


This case began with a car wreck. Carter was injured and settled with the insurance carrier of the other driver for the $30,000 policy limit and provided a limited release under OCGA § 33-24-41.1, but with the added condition that $29,000 of the payment was allocated to punitive damages and $1,000 was allocated to compensatory damages. Carter then sued her underinsured motorst carrier, Progressive. The trial court granted Progressive’s motion for summary judgment, finding that, by imposing a condition on the settlement funds, Carter failed to comply with OCGA § 33-24-41.1 and was thus prevented from recovering underinsured motorist benefits.

The Court of Appeals (Andrews, Doyle, Boggs) unanimously affirmed the trial court decision, finding that the statute that allows for the limited release prior to seeking recovery from an underinsured carrier (OCGA § 33-24-41.1) only applies to actual losses, not punitive damages. The condition imposed to allocate $29,000 to punitive damages undermines the purpose of the statute and its requirement that the claimant must substantially exhaust other available coverage.

On September 23, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to consider the following issue:

  1. Did the Court of Appeals misconstrue OCGA § 33-24-41.1?

The case will be heard on January 7, 2014.


This case is a criminal case, but raises procedural issues related to the jurisdiction of the Supreme Court and the Court of Appeals and we appreciate being apprised of this case by a reader. The case began when Sonia Rodriguez was stopped based on an automated scan of her license plate. During the stop, the officer found marijuana in the vehicle. Rodriguez moved to suppress the marijuana found during the stop, claiming the officer lacked a sufficient basis for the stop and unreasonably prolonged the detention after stopping her. The trial court denied her motion and Rodriguez filed an interlocutory appeal.

The Court of Appeals (Doyle, Andrews, Boggs) initially affirmed the trial court decision, but after a motion for reconsideration, issued a new, fractured decision, which still apparently affirmed the trial court ruling. The 12-member Court of Appeals issued a per curiam decision joined by two judges, and with respect to division 2 and the judgment by two other judges. Two additional judges concurred in the judgment only and six judges dissented, but on differing grounds. The per curiam opinion found that Rodriguez waived her claim that the initial stop was invalid, because the written amended motion did not make that assertion. But that opinion also found that Rodriguez had failed to show the search was not allowed because of an improper expansion of the duration of the stop. Judge Doyle (joined by three other judges) would have reversed the decision, finding that there was not a sufficient basis for the initial stop. Judge Dillard would have found that Rodriguez’s failure to give the state pre-hearing notice regarding the legal issues to be considered justifies vacating and remanding the case.

On September 9, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to consider the following issues:

  1. Whether the Court of Appeals was equally divided in this case and, therefore, ought to have transferred the case to this Court? See Ga. Const. of 1983, Art. VI, Sec. V, Par. V.
  2. If so, whether the trial court erred when it denied the motion to suppress?

The case has been assigned to the January 2014 oral argument calendar.

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