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Next Week at the Court – Argument and Opinions

January 31, 2014

After re-opening following SnowJam 2014, the Supreme Court of Georgia will not be releasing any new opinions on Monday. But the Court will be hearing two days of argument on Monday and Tuesday of next week. Summaries of the cases being argued that are within the scope of our coverage are below.

Monday, February 3, 2014 10:00 am Sitting

S13G1733. GALLANT et al. v. MACDOWELL

This case is a dental malpractice action. MacDowell had a number of problems with her teeth over the years, eventually agreeing to a treatment plan created by Gallant (a general practice dentist) and carried out by Gallant and Winston (an oral surgeon). The treatment plan included a full mouth prosthodontic reconstruction and required several procedures over more than a year. After Winston placed a series of implants, Gallant determined the implants were placed too deep and at an incorrect orientation, but did not inform MacDowell of these facts and continued working within the plan. During the period between November 2007 and January 2008, Winston informed MacDowell that the reconstruction was too narrow, and eventually in February 2008, Gallant referred MacDowell to another dentist for a second opinion. That dentist recommended the reconstruction be redone, which it eventually was. On January 26, 2010, MacDowell sued Gallant and his practice alleging professional malpractice, and the defendants moved for summary judgment based on the two-year statute of limitations. The trial court granted the motion and MacDowell appealed.

The Court of Appeals (Doyle, McFadden, Boggs) unanimously reversed the trial court decision, finding that the statute of limitations was tolled by Gallant’s failure to tell MacDowell of his opinions that the implants were properly placed. The trial court relied on the visits to Winston in November 2007 and January 2008 to end any potential tolling, but this was incorrect because Winston was working as a team with Gallant. MacDowell did not seek an independent medical opinion that would have allowed her to discover her cause of action until she consulted with the new dentist in February 2008, which was within the two-year statute.

On November 4, 2013, the Supreme Court granted the petition for certiorari in a 6-1 vote(Benham dissenting) to consider the following issue:

  1. Did the Court of Appeals err when it held that the statutory period was tolled even after the plaintiff consulted a second dentist? See Witherspoon v. Aranas, 254 Ga. App. 609, 614 (2) (b) (562 SE2d 853) (2002), overruled on other grounds by Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 157 (2) (b) (682 SE2d 165) (2009).

The case will be heard on February 3, 2014.

Tuesday, February 4, 2014 10:00 am Sitting


This case is purportedly an appeal of a ruling on a recusal motion, but hinges on the jurisdiction of Georgia appellate courts to hear direct appeals of child custody provisions of divorce decrees. Nancy and John Murphy were divorced in 2006, but John sought to modify the child support provisions of the decree in 2012. Nancy moved to disqualify the judge to whom the modification case was assigned and after the motion was denied, Nancy filed a notice of appeal.

The entire Court of Appeals dismissed the appeal in a 12-0 decision. Writing for the Court of Appeals, Judge McFadden explained that the statute previously allowed appeals from “[a]ll judgments or orders in child custody cases” but that in May 2013 (after Nancy filed her notice of appeal), the legislature limited the types of orders that were directly appealable to orders that awarded, refused to change, or modified child custody. Because the denial of the motion to disqualify did not award, refuse to change, or modify child custody, it was not immediately appealable and the appeal must be dismissed because the amended statute applied retroactively to the notice filed by Nancy. The Court of Appeals then explained why the collateral order doctrine did not apply to give it jurisdiction.

On November 4, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals erred when it concluded that the 2013 amendment of OCGA § 5-6-34 (a) (11) applies retroactively in an appeal filed before the enactment of the amendment.

The case will be heard on February 4, 2014.

S13G1626. HODGE, ADMRX., et al. v. URFA-SEXTON, LP et al.

This case considers the question of whether a paralegal who has knowledge of a case can disqualify an entire law firm from representing a party. Monica Williams was shot to death in January 2010 at an apartment complex owned by URFA-Sexton LP. Hodge is the administrator of Williams’ estate and retained the law firm of Hanks Brookes to investigate potential claims against URFA-Sexton related to Williams’ death. Kristi Bussey was a paralegal at Hanks Brookes and participated in the investigation into potential claims, as well as assisting Hodge in being appointed the administrator of the estate. URFA-Sexton retained Insley & Race LLC in March 2010 to represent it in connection with the potential case threatened by Hodge. A year later (but before the suit was filed), Bussey interviewed for a paralegal position at Insley & Race and was hired. Bussey said she did not become aware of the potential conflict until just before Hodge filed this case in November 2011. After informing her superiors, Insley & Race implemented screening measures and Bussey provided affidavits that she never disclosed or discussed any confidential information regarding the Williams case with anyone at Insley & Race. After suing URFA-Sexton, Hodge filed a motion to disqualify Insley & Race, claiming that Bussey’s employment was a conflict of interest. The trial court denied the motion but certified the issue for immediate review.

The Court of Appeals (Ray, Barnes, Miller) unanimously affirmed the decision of the trial court, finding that, as a matter of first impression, the standards that apply to automatically disqualify lawyers and their firms under the Georgia Rules of Professional Conduct do not apply to nonlawyer employees of law firms. While a screening process should be strictly followed, a paralegal’s knowledge should not automatically disqualify an entire firm. The findings by the trial court that Insley & Race instituted sufficient and timely screening measures was not clearly erroneous.

On October 21, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals correctly held that a conflict of interest involving a non-lawyer can be remedied by implementing proper screening measures in order to avoid disqualification of the entire law firm?

The case will be heard on February 4, 2014.


This case began when an inmate at Walker State Prison was injured while on a painting detail at the warden’s house. While painting, Couch stepped on a dry-rotted joist which gave way. Couch fell, suffered several injuries, and sued the Department for damages. Before the trial, Couch made a written offer of settlement of $24,000 which the Department rejected. After trial, the jury returned a verdict in his favor in the amount of $105,417. Because the final verdict was more than 125% of the offer of settlement, Couch then moved for attorney fees and expenses under OCGA § 9-11-68. The Department moved to dismiss the claim, maintaining that sovereign immunity was not waived under the Georgia Torts Claims Act for purposes of authorizing the award of attorney fees. The trial court found Couch was entitled to attorney fees up to the 40% contingency arrangement with his attorneys and awarded $49,542 in fees with an additional $4,782 in expenses. The Department appealed.

The Court of Appeals (Barnes, Miller, Ray) unanimously affirmed the decision of the trial court, finding that the state waives sovereign immunity for the torts of state employees acting within the scope of their official duties in the same manner as a private individual under like circumstances. No independent cause of action is required under the offer of settlement statute and sovereign immunity does not bar the recovery of fees against the state after a rejected offer. The Court of Appeals also found that the amount of the fee was properly determined by the judgment entered on the verdict and the trial court considered the hours worked and rates in determining the reasonableness of the amount, rejecting the Department’s claim that the award should have been prorated for work done prior to the offer of settlement.

On November 4, 2013, the Supreme Court granted the petition for certiorari in a 4-3 vote(Thompson, Hines, Benham dissenting) to consider the following issues:

  1. Did the Court of Appeals err when it held that the sovereign immunity of the Department was waived by the Tort Claims Act as to Couch’s attorney fees?
  2. If the sovereign immunity of the Department was waived as to attorney fees, did the Court of Appeals nevertheless err by failing to prorate the 40 percent contingency fee to reflect that some of the fees were incurred before the settlement offer was rejected? See OCGA § 9-11-68 (b) (2) (plaintiff entitled to fees and expenses “incurred . . . from the date of the rejection of the offer of settlement through the entry of judgment”).

The case will be heard on February 4, 2014.

S13G1590. AUSTIN v. CLARK et al.

This case involves the proper application of the doctrine of official immunity. Donna Austin was injured as she was leaving the graduation ceremony at Peach County High School when she stepped from the sidewalk into the road and her leg became stuck in a water drain in the curb. Austin sued the school district and a number of individual defendants. The trial court dismissed the claims, finding claims against the school district were barred by sovereign immunity and that claims against the individual defendants were barred by official immunity.

The Court of Appeals (McFadden, Doyle, Boggs) unanimously affirmed the decision of the trial court regarding official immunity and the individual defendants, finding that the methods used to eliminate or avoid hazards are left to the discretion of school officials. Because the duties involved were discretionary, the claims were properly dismissed on the basis of official immunity. The Court of Appeals also reversed the trial court decision on sovereign immunity.

On October 21, 2013, the Supreme Court of Georgia unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals erred in affirming the trial court’s order granting the individual defendants’ motion to dismiss based on official immunity.

The case will be heard on February 4, 2014.


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