Justia Civil Procedure Opinion Summaries

Appellee Mother’s parental rights were terminated on January 14, 2013. Since Mother was indigent, she was represented by appointed counsel during the termination proceedings at juvenile court. In a letter that was apparently written prior to the issuance of the final termination of rights order, trial counsel told Mother that he could not represent her in an appeal, that she was not entitled to indigent defense for the discretionary appeal of a civil case, and that she should contact the public defender if she had questions or needed the appointment of another lawyer. On February 13, 2013, Mother, who was acting pro se, filed a notice of appeal in the juvenile court; but, months later, the juvenile court dismissed the notice of appeal because Mother was required to seek review by discretionary application. Mother, now represented by a new attorney, filed an “application for an out-of-time discretionary appeal,” requesting review of the January 2013 termination of rights order. Having decided it could grant the application for out-of-time discretionary review, the Court of Appeals went on to consider the merits and ultimately affirmed the termination of Mother’s parental rights. The Supreme Court granted the Georgia Division of Family and Children Services’ (“the State’s”) petition for certiorari to decide whether the Court of Appeals erred in finding that an appellate court had the authority to excuse the untimely filing of a discretionary application in a civil parental termination case. The Supreme Court vacated the Court of Appeals' judgment so that the appellate court could issue an order dismissing Mother’s application for out-of-time discretionary review. View "In the Interest of B.R.F. f/k/a B.R.M." on Justia Law

In 2008, Olga Zarate-Martinez filed a medical malpractice complaint against Dr. Michael D. Echemendia, Atlanta Women’s Health Group, P.C., Atlanta Women’s Health Group, II, LLC, and North Crescent Surgery Center, LLC (collectively “Echemendia”), for damages for injuries she sustained during an open laparoscopic tubal ligation that was allegedly negligently performed and which resulted in a perforated bowel. Zarate-Martinez attached to her complaint an affidavit from Dr. Errol G. Jacobi. She later identified Dr. Charles J. Ward as an expert for summary judgment purposes, but she never submitted an affidavit from Dr. Ward in support of her complaint. Echemendia deposed Dr. Ward and Dr. Jacobi, moved to strike the testimony from both doctors on the grounds that they did not qualify as experts, and also moved for summary judgment. Without any reference to some constitutional issues raised, on February 21, 2013, the trial court issued an order striking both experts’ testimony, but granted Zarate-Martinez 45 days in which to file an affidavit from a competent expert witness. Zarate-Martinez timely submitted another affidavit, this time from Dr. Nancy Hendrix, and Echemendia again moved to strike. Zarate-Martinez then filed a supplemental affidavit from Hendrix outside of the 45-day time frame, and, in her reply to the motion to strike, reasserted her constitutional challenges to OCGA 24-7-702 (c). Zarate-Martinez also asserted a new constitutional claim, specifically, that the provisions of OCGA 24-7-702 (c) (2) (A) and (B) were unconstitutionally vague. The trial court struck Hendrix's affidavits, and, without any affidavits from qualified medical experts to support her claim, the trial court dismissed Zarate-Martinez's complaint. The Court of Appeals affirmed and did not reach the constitutional issues since the trial court never addressed them. The Supreme Court vacated the Court of Appeals decision and that of the trial court with respect to the application of OCGA 24-7-702 (c) and remanded for the trial court to reconsider the admissibility of Hendrix's testimony. View "Zarate-Martinez v. Echemendia" on Justia Law

After 29 years of marriage and three children, appellant Sharmeen Islamkhan (“wife”) filed for divorce. She sought review of the denial of her motion to vacate void judgment in which she asked the trial court to vacate its order modifying certain provisions of the parties’ final divorce decree. Wife argued that, prior to entry of the modification order, appellee Shoeb Khan (“husband”) filed a notice of appeal of the final divorce decree which acted as supersedeas and deprived the trial court of jurisdiction to modify the appealed order. The Georgia Supreme Court granted wife’s application for appeal and asked the parties to address a series of questions related to the issue of whether supersedeas had attached. After review, the Court found that the divorce decree entered by the trial court was not a final judgment and, as a result, husband’s failure to follow the procedures set forth in OCGA 5-6-34 (b) for obtaining interlocutory review rendered his notice of appeal nugatory. Accordingly, the Court affirmed the trial court’s denial of wife’s motion to vacate. View "Islamkhan v. Khan" on Justia Law

The damages at issue in this case arose from the death of a mixed-breed dachshund owned by Robert and Elizabeth Monyak. In 2012, the Monyaks boarded Lola, their 8 ½ -year old dachshund mix, for ten days at a kennel owned by Barking Hound Village, LLC (“BHV”) and managed by William Furman. Three days after picking up their dogs from BHV, Lola was diagnosed with acute renal failure. Despite receiving extensive veterinary care over a nine-month period, including kidney dialysis treatment, Lola died in March 2013. The Monyaks asserted various claims of negligence against BHV and Furman, and sought compensatory damages, including over $67,000 in veterinary and other expenses incurred in treating Lola. In addition, alleging fraud and deceit on the part of the defendants, the Monyaks sought litigation expenses and punitive damages. Observing that pet dogs were considered personal property under Georgia law, but finding that not all dogs have an actual commercial or market value, the Court of Appeals held that where the actual market value of the animal was non-existent or nominal, the appropriate measure of damages would be the actual value of the dog to its owners. The Georgia Supreme Court granted certiorari to consider whether the Court of Appeals erred in holding that the proper measure of damages for the loss of a pet dog was the actual value of the dog to its owners rather than the dog’s fair market value. Because the Supreme Court found that long-standing Georgia precedent provided that the damages recoverable by the owners of an animal negligently killed by another included both the animal’s fair market value at the time of the loss plus interest, and, in addition, any medical and other expenses reasonably incurred in treating the animal, the Court affirmed in part and reversed in part the Court of Appeals’ decision. View "Barking Hound Village, LLC v. Monyak" on Justia Law

In 1993, Willie Barnes suffered an amputation of his left leg below the knee in an industrial accident at the Georgia-Pacific (GP) wood processing plant where he worked. GP, its insurer Georgia Conversion Primary Ins. Co. and its workers’ compensation servicing agent CCMSI, accepted the claim as catastrophic and began paying temporary total disability (TTD) benefits. Barnes was fitted with a prosthetic leg and returned to lighter duty work in January 1994. On January 30, 1994, GP stopped paying TTD benefits to Barnes, and the TTD benefits were replaced with permanent partial disability (PPD) benefits. The PPD benefits continued until May 1998. In 2006, the GP plant was sold to Roseburg Forest Products Company (Roseburg). Barnes continued working for Roseburg, but was laid off on September 11, 2009. On November 13, 2009, Barnes consulted a doctor regarding chronic knee pain. Two years later, he was fitted for a new prosthetic leg, which was paid for by CCMSI, the company that continued as the workers’ compensation servicing agent for Roseburg and Roseburg’s insurer, ACE American Insurance Co. (ACE American). On August 30, 2012, Barnes filed a claim to resume TTD benefits, asserting the date of his original workplace accident August 13, 1993 as the date of injury. On November 30, 2012, Barnes filed a separate notice of claim, alleging a fictional new injury based on the date that he was terminated from his employment, September 11, 2009. The Administrative Law Judge denied the claims as barred by the applicable statutes of limitation set out in OCGA 34-9-104 (b) and 34-9-82. The State Board of Workers’ Compensation (Board) affirmed, as did the trial court. However, the Court of Appeals reversed, finding that both of Barnes’ claims were not barred by the applicable statutes of limitation. The Supreme Court concluded the appellate court erred in its interpretation of the applicable statutes of limitations in these cases, and reversed. View "Roseburg Forest Products Co. v. Barnes" on Justia Law

Appellants GeorgiaCarry.org and Phillip Evans appeal the dismissal of their petition for declaratory and injunctive relief as to the Atlanta Botanical Garden’s prohibition of weapons on the Garden’s premises. Evans, who holds a Georgia weapons carry license, visited the Garden twice in October 2014 and wore a handgun in a waistband holster each time. After gaining admission to the Garden on his second visit, Evans was stopped by an employee of the Garden and advised that he could not carry the weapon at the Garden; a security officer detained Evans, and Evans was eventually escorted from the Garden by an officer with the Atlanta Police Department. The Supreme Court agreed with appellants that the trial court erred in dismissing their case. "Appellants request for declaratory relief was not impermissible, and it was error to dismiss Appellants’ declaratory judgment action on the basis that it improperly called for the interpretation and application of a criminal statute." Accordingly, the trial court’s order was reversed in this respect. The trial court also dismissed Appellants’ request for injunctive relief; the Supreme Court concluded this was proper in part. The portion of Appellants’ requested injunctive relief (enjoining the arrest or prosecution of Appellants) squarely implicated the administration of criminal law and, thus, was improper. The case was remanded for further proceedings. View "GeorgiaCarry.org v. Atlanta Botanical Garden, Inc." on Justia Law

Tamara Williford filed a “Petition for Equitable Relief” against Mary Ann Brown, alleging that Brown’s husband, Tommy, was Williford’s biological father; that Tommy Brown was in poor physical health and could not leave home but was in good mental condition and can make decisions for himself; that Williford and Tommy have a good relationship, used to talk on the telephone regularly, and until recently saw each other in person; and that Tommy was prevented from doing so by Mrs. Brown. The petition requested an order requiring Mrs. Brown to allow Williford unimpeded personal access to Tommy, or appointing a guardian ad litem for Tommy. Mrs. Brown filed an answer denying: that Williford was Mr. Brown’s biological daughter, that he was in poor health, that he wished to have contact with Williford, and that Mrs. Brown has interfered in any way with Williford’s access to Mr. Brown. The trial court held that there was no such relief as Williford requested. The Supreme Court agreed and affirmed the trial court's dismissal of her petition. View "Williford v. Brown" on Justia Law

Act No. 138 (House Bill 279 or the “Act”) established three new seats on the Court of Appeals, to which, Governor Nathan Deal appointed Amanda H. Mercier, Nels S.D. Peterson, and Brian M. Rickman. In this action, John Clark, Ivory Kenneth Dious, Francys Johnson, Jr., Henry C. Ficklin, and Darryl A. Momon (collectively referred to as “Clark”) contended that the new judges were improperly appointed. After considering the Georgia Constitution, related statutory authority, and the history of judicial appointments to the Court of Appeals, the trial court held that the 1983 Georgia Constitution permitted the Governor to fill newly created seats on the Court of Appeals by appointment. Clark then appealed, and, in addition, filed an emergency motion for supersedeas, again to prevent the Governor from administering the oath of office to the appointees. The Supreme Court denied the emergency motion on December 18, 2015. The Governor also filed a cross-appeal, contending that the trial court erred in its determination that sovereign immunity did not protect him from the injunction and declaratory judgment action brought against him. The new Court of Appeals judges took office on January 1, 2016. The only part of this action which remained viable for the Supreme Court's review was Clark’s petition for a writ of quo warranto, which became ripe at the time that the new judges assumed office. Throughout this litigation, Clark contended that OCGA 15-3-4 (b) was unconstitutional because the Georgia Constitution required that Court of Appeals judges who fill newly created seats must be selected by a general nonpartisan election. After review of the same authorities relied upon by the trial court, the Supreme Court concluded that court did not err in declining to issue a writ of quo warranto. View "Clark v. Deal" on Justia Law

Plaintiff Alfred Fuciarelli was a tenured faculty member at Valdosta State University (“VSU”). Fuciarelli was at one time also assistant vice president for research and a dean of the graduate school. After he complained about VSU’s “noncompliance with laws, rules and regulations,” VSU terminated Fuciarelli’s contract to serve as an assistant vice president and dean. Although Fuciarelli remained as a member of the faculty, his salary and benefits were reduced. Fuciarelli appealed his termination to the Board of Regents which affirmed VSU’s decision. Thereafter, Fuciarelli filed suit against the Board of Regents, William McKinney, individually and in his official capacity as president of VSU, and Karla Hull, individually and in her official capacity as a former acting vice president of VSU, seeking damages under both the Public Employee Whistleblower Retaliation Act, and the Taxpayer Protection Against False Claims Act (“TPAFCA”). The trial court denied defendants’ motion to dismiss the public employee whistleblower retaliation claim, but granted defendants’ motion to dismiss the taxpayer retaliation claim on the ground that Fuciarelli failed to obtain the approval of the Attorney General before filing suit. The Georgia Supreme Court granted a writ of certiorari to the Court of Appeals to determine whether it correctly held that the TPAFCA did not require the Attorney General to approve taxpayer retaliation claims brought under subsection (l) of the Act. Because the plain language of the statute required the Attorney General to approve a taxpayer retaliation claim prior to filing suit, the Supreme Court reversed the judgment of the Court of Appeals' holding to the contrary. View "McKinney v. Fuciarelli" on Justia Law

Although these two cases arose separately, they posed a singular legal issue for the Supreme Court’s review, and thus were addressed in the same opinion. In S15G0887, Akeem Washington, who was on probation for speeding, sued Shannon Rivera, a probation officer, and her administrative assistant, alleging that they failed to perform their ministerial duties when they swore out a warrant for Washington’s arrest for failure to pay a fine that Washington already had paid in fulfillment of the conditions of his probation. Rivera moved to dismiss the complaint, arguing she was immune from liability in Washington’s suit because her alleged actions were protected by either quasi-judicial immunity or sovereign immunity. The trial court denied the motion, ruling that it was possible that facts could be shown in discovery that would establish that neither quasi-judicial immunity nor sovereign immunity applied. Rivera did not attempt to file an application for interlocutory appeal from that order but filed a notice of appeal, asserting that she had authority to file a direct appeal under the collateral order doctrine. The Court of Appeals dismissed the appeal. In S15G0912, Dan and Arlene Appelrouth sued their neighbors, Cesar and Janice Rodriguez, also naming Forsyth County and other unknown persons as defendants. The Appelrouths alleged that actions taken on the Rodriguezes’ property, as well as on the County’s road right of way and associated drainage ditch, caused water damage to the Appelrouths’ property, and raised claims of, inter alia, breach of legal duty, negligence per se, trespass, nuisance, and inverse condemnation. The Rodriguezes filed a cross-claim against the County, which filed motions to dismiss both the complaint and cross-claim, asserting sovereign immunity. The trial court denied the motions, ruling that it was possible that evidence could be established which would allow the Appelrouths and the Rodriguezes to prevail against the County’s claim of sovereign immunity. The County, like Rivera did not seek interlocutory appeal, and again the Court of Appeals dismissed on direct appeal, citing the collateral order doctrine as grounds for dismissal. Although the Court of Appeals applied incorrect analyses in these cases, the Supreme Court concluded it reached the correct results in dismissing the direct appeals filed by Rivera and Forsyth County. View "Rivera v. Washington" on Justia Law