On July 8, 2016, the Supreme Court of Georgia issued six opinions of which three are within the scope of our coverage. Summaries of the cases and decisions are set forth below.
S16A0013 Cottrell v. Smith, et al.
In a unanimous opinion by Presiding Justice Hines, the Georgia Supreme Court affirmed the trial court’s entry of judgment notwithstanding the verdict and its earlier rulings granting motions for directed verdict in a lawsuit alleging defamation, related torts, and claims “potentially implicating the constitutionality of portions of the Georgia Computer Systems Protection Act (“GCSPA”), OCGA § 16-9-60 et. seq.”
The Supreme Court affirmed the trial court’s rulings on directed verdict, noting that its review applies the “any evidence” test and construes the evidence in favor of the losing party. With respect to the GCSPA claims, the Supreme Court explained that it was unnecessary to consider whether the GCSPA was unconstitutional because Cottrell failed to prove that, when the defendants allegedly participated in computer theft, computer trespass, computer invasion of privacy, and computer forgery, they acted with the statutorily required intent. With respect to the claim of intentional infliction of emotional distress, Cottrell failed to show that he suffered the extreme emotional distress required to prove the claim.
With respect to the claims resolved against Cottrell on JNOV, the Supreme Court observed that truth is a defense to claims of libel and slander. Because the jury did not award special damages, those claims could succeed only if what was said was defamatory per se; in this case, the possibilities were the imputation of a crime or professional or trade charges made with the intent to injure. Because Cottrell was a public figure, he had to show that any defamatory statements were made with actual malice, that is, with “actual knowledge that a statement is false or with reckless disregard as to its truth or falsity.” (quoting Atlanta Humane Soc. v. Mills, 274 Ga. App. 159, 165 (3), 678 S.E. 2d 18 (2005)). Reviewing the statements at issue, the Court found that they were truthful or expressions of opinion and none were made with actual malice. Finally, the Court found that there was no fiduciary relationship to support a breach claim and no private facts to support an invasion of privacy claim. The Court concluded, “In summary, a judgment notwithstanding the verdict was warranted in this case.”
S16A0326 Reed v. McConathy
In a unanimous opinion by Presiding Justice Hines, the Georgia Supreme Court held that the trial court erred in granting a motion to dismiss a petition for partition and accounting. The lawsuit arose after the 2004 transfer of an interest in real property from Reed to McConathy that resulted in the creation of a joint tenancy with right of survivorship. In 2007, Reed quitclaimed her interest in the property to Page, but Page quitclaimed it back the following day.
The Supreme Court noted that, under O.G.C.A. § 44-6-160, only tenants in common, not those holding as joint tenants with right of survivorship, can seek partition of real property. As former O.C.G.A. § 44-6-190(a) provided in part, a joint tenancy estate “may be severed as to the interest of any owner by the recording of an instrument which results in his lifetime transfer of all or a part of his interest….” The Court concluded that Reed’s 2007 recorded quitclaim deed to Page was such a transfer, and that it severed the joint tenancy with right of survivorship. It did not matter that Page promptly turned the transfer around. The Court remanded the case to the trial court “for proceedings consistent with this opinion.”
The Supreme Court also pointed out that its jurisdiction was founded in its title to land jurisdiction. That will change on January 1, 2017, when O.C.G.A.§ 15-3-3.1(a) becomes effective and puts appellate jurisdiction over such cases in the Court of Appeals.
S15G1295 Bickerstaff v. SunTrust Bank
In a unanimous opinion by Justice Benham, the Georgia Supreme Court held that a class representative seeking to represent a plaintiff class challenging the bank’s imposition of overdraft fees that were alleged to be usurious could properly represent the class. The Court reversed the trial court’s ruling denying the motion for class certification and the decision of the Court of Appeals affirming that ruling.
The bank’s deposit agreement included a provision for arbitration of disputes and a provision giving depositors a period of time in which they could reject arbitration by sending written notice. Instead of sending notice, Bickerstaff filed suit seeking, among other things, the certification of a plaintiff class. The trial court denied the bank’s motion to compel arbitration because the filing of the lawsuit substantially complied with the rejection decision, and the Court of Appeals affirmed that ruling.
With respect to class certification, the trial court and the Court of Appeals both concluded that the numerosity required for class certification was lacking. In the view of the Court of Appeals, Bickerstaff spoke only for himself, not any other depositor, when he rejected arbitration.
The Supreme Court noted that “the filing of a timely class action complaint commences the action for all members of the class as subsequently determined.” (quoting American Pipe and Construction Co. v. Utah, 414 U.S. 538, 550 (1974)). That filing tolls the statute of limitations for other depositors to give notice that they also rejected arbitration. Bickerstaff represented that the plaintiff class would include at least 1,000, and that allegation was sufficient to support certification of the class.
The Court explained that both it and the Court of Appeals have allowed class representatives to “satisfy certain conditions such as a limitation period for filing suit or making a claim on behalf of those class members who ratify the representatives’ actions by remaining in the class after the class is certified.” Moreover, while it had not previously held that, by filing suit and seeking class certification, a party can “satisfy a contractual limitation period on behalf of absent call members,” other courts, including the Eleventh Circuit, had done so. It criticized the Court of Appeals’ reasoning, pointing out that the “entire class action” scheme is premised on the representative’s acting on behalf of the class. The representative’s actions are not conclusive on the class members, those actions simply toll the time for them to act until they choose to remain in the class or to opt out.