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Released Opinions

July 7, 2015


On Monday, June 29, the Supreme Court of Georgia issued 21 opinions, 9 of which are within the scope of our coverage. Summaries of the cases and the opinions are below.

S14G1173 Eshleman v. Key

In a unanimous opinion by Justice Blackwell, the Supreme Court of Georgia held that a police officer whose trained police dog escaped and attacked a child in the neighborhood was entitled to official immunity. Key’s son was attacked and injured by Eshleman’s police dog, which escaped from a portable kennel outside Eshleman’s home after she “evidently failed to secure the kennel door.” The Court outlined the difference between ministerial acts, which do not qualify for official immunity, and discretionary acts, which do. In reaching its decision that Eshleman was entitled to official immunity, the Court reversed the decisions of the trial court and the Court of Appeals.

The Supreme Court explained that, while public officials, including county law enforcement officers like Eshleman, are generally entitled to official immunity from tort claims, there are two exceptions. Key did not invoke the first exception, that the official acted with malice or the intent to injure. Instead, he contended that a state law addressing liability for the owners of dangerous or vicious animals and two county ordinances imposed an “absolute and sufficiently specific duty” on Eshleman.

The Supreme Court noted that an officer performing a function that had no duty of care associated with it, such that the officer “is equally entitled to do anything or nothing at all,” is performing a discretionary function and is entitled to immunity. It explained, “[E]ven when an officer clearly owes a duty of care and is absolutely required to do something, unless she has been commanded—by law or by the policy or directive of her employer—to do a particular thing, she is still engaged in the performance of a discretionary function.”  (Emphasis in original.) The state law did no more than impose a general duty of ordinary care, which left the method of compliance up to Eshleman’s reasoned judgment. The county ordinances likewise imposed only a general duty of reasonable care.

S14G1225 McLeod v. Clements

In a unanimous opinion by Justice Nahmias, the Supreme Court of Georgia held that a covenant running with the land binds only those downstream purchasers of land with actual or constructive knowledge of the restriction. The Court affirmed the decision of the Georgia Court of Appeals and joined it in distinguishing that portion of Wardlaw v. Southern Railway Co., 199 Ga. 97, 98, 33 S.E. 2d 304 (1945), which stated that covenants running with the land bind future purchasers “with or without notice.” In the Court’s judgment, that statement was “poorly articulated” and dicta.

The covenant at issue was a 1971 family agreement to dig a well on one part of a family’s property and supply water to another subdivided portion. The burdened portion of the land was transferred by deed, then sold in 1996. The deed of sale included a “Special Agreement,” pursuant to which the purchasers agreed to provide water to McLeod’s house as long as he continued to occupy it in exchange for McLeod’s payment of a reasonable fee for electricity and well maintenance costs. Later in 1996, McLeod recorded the 1991 agreement. In addition, the pipes and water line connection have been visible and marked since 1971.

The well property was sold to Clements in 2007. The deed made the transfer “subject to that certain Special Agreement” contained in the 1996 deed. Clements stated that he didn’t know about the 1971 Agreement, but was aware of the 1996 agreement through the pipes that were visible on the burdened land. In 2008, McLeod stopped paying the costs, so Clements cut off the water, provoking the lawsuit.

The trial court granted Clements summary judgment with respect to the 1971 Agreement, but denied it as to the 1996 Agreement. The Court of Appeals affirmed the partial grant of summary judgment, and the Supreme Court affirmed. It held that the 1971 Agreement could not be enforced against Clements because he did not have either actual or constructive notice of it.

S14G1868, Phillips, et al. v. Harmon, et al.

In a unanimous opinion by Presiding Justice Hines, the Supreme Court of Georgia addressed, among other things, the standard for evaluating a claim of spoliation of evidence and the circumstances in which a rebuttable presumption or adverse inference instruction should be given. It held that a duty to preserve evidence can arise even without actual notice of a claim or litigation from the prospective plaintiff. It reversed the decision of the Georgia Court of Appeals in part because it and the trial court applied the wrong legal standard to the spoliation claim.

Phillips claimed that her son suffered oxygen deprivation shortly before birth, resulting in severe, permanent neurological injuries. She sued Harmon and others for medical malpractice, and the jury returned a verdict in favor of the Defendants. In a motion for new trial, Phillips complained that the trial judge erred in communicating with the jury outside the presence of Phillips and her attorneys and in refusing to give an instruction on spoliation of evidence. The trial court denied the motion. The Court of Appeals held that Phillips was entitled to a new trial on the jury communication issue, but affirmed the denial of the requested spoliation instruction.

After lunch on the first day of deliberations, the jury asked what would happen if they could not reach a unanimous verdict. Without consulting counsel, the trial judge wrote, “Please continue deliberating” and sent the note back. That note disappeared, and its content had to be reconstructed. The Supreme Court explained that, insofar as it “cannot sanction communications of a substantive nature between a trial judge and the jury outside the presence of the defendant and counsel in a criminal trial, … it should not do so in a civil trial as such actions are no less a violation of a party’s right to be present during trial.”

The spoliation claim involved printed paper strips of the electronic monitoring of Phillips’ fetal heart rate. While the medical center’s records were maintained electronically, the nurses “often” made notes on the paper strips and referred to them in completing the official record. The medical center retained the strips for 30 days, then destroyed them in accordance with its standard procedure.

Phillips asked for an instruction of a rebuttable presumption that the notations would have been prejudicial to the Defendants. The trial court denied the request because the Defendants had “no knowledge or notice of potential litigation,” and the Court of Appeals affirmed that ruling. Phillips argued that the medical center’s triggering of an internal investigation was sufficient to give rise to a duty to preserve evidence.

The Supreme Court noted, “[T]he duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party.” For a plaintiff, contemplation of litigation alone is enough. For a defendant, “the duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of ‘notice’ to the defendant.” Notice can be actual or constructive. It can also be inferred from a defendant’s actions or other circumstances. The Court explained, “The defendant’s duty does not arise merely because the defendant investigated the incident, because there may be many reasons to investigate incidents causing injuries, from simple curiosity to quality assurance to preparation for possible litigation.”

The Supreme Court reversed because the spoliation rulings of the trial court and the Court of Appeals “appear to rest on the legally incorrect premise that a defendant’s duty to preserve evidence required notice of a claim or litigation from the plaintiff, i.e., actual notice, without regard to other circumstances.…” (Emphasis in original) It observed that the issue might recur on retrial and reminded the parties that a rebuttable presumption or adverse inference instruction should be given “only in exceptional cases.” (Quoting Cotton States Fertilizer Co. v. Childs, 179 Ga. 22, 23, 174 S.E. 708 (1934)).  In addition, the Court noted that the medical center’s good or bad faith was “a relevant consideration.”

S15A0142 Davis v. VCP South, LLC at al.

In a unanimous opinion by Chief Justice Thompson, the Supreme Court of Georgia rejected complaints from both parties about the trial court’s handling of a dispute over the disposition of the assets of several medical treatment companies.

S15A0277 Savage v. State of Georgia. et al.

In a unanimous opinion by Justice Nahmias, the Supreme Court of Georgia affirmed the validation of the revenue bonds that will be used to help finance the construction of a new stadium for the Atlanta Braves in Cobb County. The Court observed that “it is evident” the parties relied on the Court’s precedents, but “[t]here is nothing wrong with that.” It stated, “While aspects of the deal structure may push the law as far as it can go, it does not cross the line into illegality.” It did not “discount” the Appellants’ concerns about the wisdom of the deal, but viewed them as public policy concerns that are to be addressed politically, not legally.

The Court first upheld the intergovernmental agreement (IGA) between Cobb County and the Cobb-Marietta Coliseum and Exhibit Hall Authority, under which the Authority would issue revenue bonds, and the County would cover the portion of the bond payments not covered by the Atlanta Braves. It rejected the contention that the IGA was constitutionally invalid because it did not involve joint services or the joint or separate use of facilities or equipment and because it was not in pursuit of a activities its participants can lawfully provide. The Court held that the IGA qualified as a contract for services because the Authority and the County were each taking on some service obligations. In addition, it held that the stadium “certainly qualifies” as a recreational facility that the Authority can lawfully construct.

The Supreme Court also rejected the contention that the expenditures were not for a public purpose because the project was said to be exclusively for the benefit of the Braves. It noted that the Authority and County specifically determined that the project would be “a significant and much needed catalyst for revitalization and continuing redevelopment of the property in the vicinity of the stadium.” The determinations of public purpose were not overridden by the fact that the Braves would be providing some of the benefits or by the fact that admission fees would be charged.

The Supreme Court also rejected the contention that the revenue bonds violated the debt limitation provision of the Georgia Constitution, Ga. Const. of 1983, Art. IX, Sec. V, Par. I. It noted that the bond terms complied with the revenue bond laws. In addition, the County’s pledge to pay the Authority up to $25 Million a year for 30 years fell outside the debt limitation clause because the pledge was part of a valid intergovernmental agreement. The Court observed that it had repeatedly recognized that intergovernmental agreements are outside the debt limitation clause in construing the 1945, 1976, and 1983 Constitutions.

The Court also rejected the claim that the IGA violated the gratuities clause of the Constitution, Ga. Const. of 1983, Art. III, Sec. VI, Para. VI(a)(1). It noted that the County was receiving a substantial benefit from the IGA. It was not the Court’s job to decide whether the benefit was sufficient.

The Court likewise rejected the argument that the IGA violated the lending clause of the Constitution, Ga. Const. of 1983, Art. IX, Sec. II, Para. VIII, because “[t]he County is not paying, with appropriated funds or credit, for anything to be owned by the Braves parties.”

Finally, the Court rejected the contention that the revenue bonds did not comply with constitutional and statutory standards. The stadium project “fits squarely” within the range of allowable “revenue producing undertakings.” The bond obligations would be covered by license fees from the Braves and payments pursuant to the IGA, which have been held to constitute project revenue. The County’s promise to levy ad valorem taxes if necessary did not turn the revenue bonds into general obligation bonds; it put the County’s “full faith and credit” behind its contractual commitments.

S15A0335 Reeves v. Webb

In a unanimous opinion by Presiding Justice Hines, the Supreme Court of Georgia reversed a probate court’s decision denying a petition to probate a will. The probate court dismissed the petition reasoning that the will’s proponent failed to produce the subscribing witnesses for examination at the hearing or show that they were deceased or unavailable. The Supreme Court of Georgia pointed out that the law now permits self-proving wills, codicils, and affidavits, and that this will included a self-proving affidavit. Accordingly, the appearance of the subscribing witnesses was unnecessary, and the burden of proof shifted to the caveator making the objection.

S15A0395 Johnson v. Rogers

In a unanimous opinion by Justice Blackwell, the Supreme Court of Georgia held that the doctrine of virtual adoption does not apply to a case in which a decedent has disposed of his or her entire estate by will. Mrs. Johnson dies and left a will in which she gave interests to Mr. Johnson, her husband, and contingent residual interests to Rogers, her grandniece who had lived with the Johnsons for 37 years. Rogers sought an intestate share of the estate claiming that she had been adopted. The probate court admitted Mrs. Johnson’s will to probate and granted the intestate share to Rogers on the ground that she had been virtually adopted. The Supreme Court of Georgia reversed.

The Supreme Court explained that the doctrine of virtual adoption can fill a gap where someone has agreed to adopt another, but does not complete the formal process. The doctrine is meant to “avoid an unfair result from the application of intestacy statutes.” (Quoting Sanders v. Riley, 296 Ga. 693,698, 770 S.E. 2d 570 (2015)). The Court noted that it had “previously held” that “where a will gives all of the real and personal property of the alleged adoptive parents to someone other than the alleged virtual adoptee, except for a certain bequest of personal property, there no longer remains in the estate any property subject to enforcement of the virtual adoption claim.” (Citing Banes v. Derricotte, 215 Ga. 892, 896, 114 S.E. 2d 12 (1960)).

The Court also held that the 2002 amendment to O.C.G.A. § 53-4-48 did not do away with the intestacy requirement. That amendment changed the law so that a subsequent adoption no longer revoked a will. Rather, the subsequently adopted child is entitled to an intestate share. The Court reasoned that the amendment covered lawful statutory adoptions, which have “almost no relationship” to a virtual adoption.

S15A0489 Elbert County, et al. v. Sweet City Landfill, LLC, et al.

In a unanimous opinion by Presiding Justice Hines, the Supreme Court of Georgia reversed a trial court ruling that struck down Elbert County’s solid waste ordinance as unconstitutional. The Court remanded the case for the trial court to apply the balancing test of Pike v. Bruce Church, Inc., 307 U.S. 137, 142 (1970), under which a statute or ordinance that “regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, … will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”

In 2009, Sweet City applied for a special use permit that would allow it to establish a solid-waste facility in Elbert County. The County voted not to enter into a host agreement with Sweet City in 2012, and Sweet City filed suit seeking a declaration that the County’s solid waste ordinance was unconstitutional and an injunction permitting it to go forward with its plan. The trial court granted Sweet City’s motion for summary judgment and awarded the requested relief.

The Supreme Court reversed the trial court’s ruling. It held that the trail court erred in concluding that it would be futile for Sweet City to exhaust its remedies. Instead, the Court noted that its “long-standing procedure is to address … vested right claims only after the local zoning authority has refused to issue the necessary permits for the proposed project, or has imposed unconstitutional restrictions on an existing project.” Sweet City needed to get a final decision from Elbert County before filing suit.

In addition, the Supreme Court rejected Sweet City’s attack on the constitutionality of Elbert County’s ordinance. It pointed out that the lack of solid waste facilities in Elbert County did not make the ordinance facially discriminatory against Sweet City and similar uses. Instead, it was necessary to apply the balancing test of Pike.

S15A0521 Jones v. Boone

In a unanimous opinion by Justice Hunstein, the Supreme Court of Georgia affirmed a trial court ruling ousting the new attorney for the City of Gordon. In its June 15 opinion in Lue v. Eady, the Court noted that the City’s Charter empowered the Mayor to participate in the city council’s discussions, but could vote only in the event of a tie and in the election of those officials elected by the council. In order to move forward, four affirmative votes are needed. The Charter also provides that the city council appoints the city attorney and that the attorney serves at council’s pleasure.

When a motion was made to terminate Boone’s services as city attorney, the vote was 3-2, with one abstention. Mayor Lue then voted in favor of the motion. She also voted in favor of the appointment of an interim attorney, after that vote came in at 3-2 in favor, with one abstention. Jones was appointed

Boone challenged the appointment of Jones through a quo warranto petition, contending that the Mayor was not entitled to vote to turn a 3-2 majority with an abstention into the required four votes. The Court affirmed the trial court’s ruling ousting Jones, rejecting the contention that an abstention was the equivalent of a no vote. Relying on its decision in Merry v. Williams, 281 Ga. 571, 642 S.E. 2d 46 (2007), the Court noted, “The requirement of a specific number of affirmative votes exhibits a legislative intent that abstentions not be counted with the majority of votes cast.…” Abstentions do not count, as either affirmative or negative votes. Because there was no tie vote, Mayor Lue was not entitled to vote.


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