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Released Opinions

June 16, 2014

This morning, the Supreme Court of Georgia will hear oral argument in three cases and released opinions in 11 cases, four of which are within the scope of our coverage. Summaries of the cases and opinions released are below.

S13G1152. HARTLEY v. AGNES SCOTT COLLEGE et al.

This case began when Hartley was arrested on a variety of charges as a result of arrest warrants sought by Agnes Scott College police officers based on a student’s complaint. The District Attorney later dropped all the charges and Hartley sued the college and the police officers for false arrest and other claims, alleging they failed to make a reasonable investigation. Hartley asserts that a reasonable investigation would have demonstrated she was not even in the state at the time of the alleged assault. Agnes Scott College and the officers moved to dismiss, claiming that the officers were law enforcement officers acting within the scope of their official duty and thus entitled to official immunity as state officers or employees. The trial court denied the motion to dismiss, finding that the campus police were not state officers or state employees who would be entitled to official immunity.

The Court of Appeals granted the application for interlocutory appeal and reversed the trial court ruling in a 4-3 decision (Ray, Andrews, Branch, concurring; Boggs, concurring in judgment only; Miller, Phipps, Doyle, dissenting). The majority found that the Campus Policemen Act makes officers employed by private colleges who meet the requirements “law enforcement officers” for purposes of official immunity. The officers in this case were acting to enforce the laws of the state and thus were state officers for purposes of official immunity. The minority would have found the statutory language excludes employees of private entities from the definition of state employees or officers entitled to official immunity.

On September 9, 2013, the Supreme Court granted the petition for certiorari in a 4-3 vote (Thompson, Hines, and Melton dissenting) to consider the following issue:

  1. Did the Court of Appeals err in ruling that the campus police officers in this case qualify as State officers or employees within the meaning of OCGA § 51-21-22 (7)?

The case was heard on November 19, 2013.

On June 16, 2014, the Supreme Court unanimously reversed the Court of Appeals’ decision, finding that campus police officers are not state officers or employees protected by the Georgia Tort Claims Act (GTCA). Writing for the Court, Justice Nahmias explained that the provisions regarding campus police in the GTCA do not stand alone. Instead, the GTCA is a unified scheme designed to provide immunity for torts committed by state officers or employees acting within the scope of their duties on behalf of a state government entity. A person who was not acting for a specific state government entity is not an immune state officer or employee under the GTCA. Because the Agnes Scott officers were not acting for a state government entity, no immunity exists for their torts. The Court did not address the question of official immunity under the Constitution, but left that to further development in the case.

S13G1555. GEORGIA DEPT. OF CORRECTIONS v. COUCH

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 was heard on February 4, 2014.

On June 16, 2014, the Supreme Court unanimously affirmed in part and reversed in part. Writing for the Court, Justice Nahmias explained that the sovereign immunity of the Department was waived regarding the attorney fee award, but that the trial court did not properly calculate the amount. While attorney fees are not part of the GTCA’s definition of a “claim,” the waiver of sovereign immunity in the GTCA applies to tort actions, meaning the cases proceed under the normal rules of practice and procedure. Thus, once the state has allowed a tort action to proceed against it, the state cannot then avoid the consequences of provisions of the Civil Practice Act that other litigants face, including an award of fees and expenses under the offer of judgment provisions. But the Court also found that a contingent fee agreement cannot bind the court in determining the the reasonable value of fees. Instead, the court should look to the reasonable value of the services actually provided from the date of the rejection of the offer through judgment.

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 (Dr. Arnold) 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 was heard on February 3, 2014.

On June 16, 2014, the Supreme Court unanimously affirmed the decision of the Court of Appeals. Writing for the Court, Justice Benham explained that Drs. Winston and Gallant had jointly treated MacDowell for her dental problems and thus it was not until MacDowell consulted with Dr. Arnold that she learned the of the problems through an independent medical opinion for purposes of the tolling statute. She filed her action within two years of that point and thus summary judgment was improper (although the trial court has not yet determined whether fraud exists).

S14A0631 Selke et al. v. Carson et al.

This case involves the termination of sheriff’s deputies in Forsyth County. In February 2013, the Forsyth County sheriff terminated 11 deputies as part of a reduction in force. The deputies claimed their termination was based on political retaliation and age discrimination. The deputies attempted to appeal their terminations, but the sheriff and personnel services director both denied the requests. The deputies then brought a mandamus action to seek to compel the personnel services director to forward their appeals to the county’s civil service board. The trial court denied that request and granted the state’s motion to dismiss and the deputies appealed.

The case was heard on April 7, 2014.

On June 16, 2014, the Supreme Court unanimously dismissed the appeal. Writing for the Court, Chief Justice Thompson explained that the deputies were required to follow discretionary appeal procedures. While orders granting or refusing injunctive relief (including mandamus actions) are generally appealable, decisions of a superior court reviewing the decision of an administrative agency can only proceed by discretionary appeal. Because the trial court was reviewing the decision of the administrative department, the deputies had to proceed by discretionary appeal and their failure to do so resulted in dismissal.

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