Trial Practice and Procedure - Kate S. Cook, Brandon L. Peak, John C. Morrison Iii, Tedra C. Hobson, and Mary K. Weeks

• Publication year: 2011

Trial Practice and Procedure

by Kate S. Cook*** Brandon L. Peak** John C. Morrison III*** Tedra C. Hobson^****

Mary K. Weeks^***** Jeb Butler^****** _*******

and Samantha A. DiPolito^*******

* Of Counsel in the firm of Butler, Wooten & Fryhofer, LLP, Columbus and Atlanta, Georgia. University of the South (B.A., magna cum laude, 1998); Mercer University, Walter F. George School of Law (J.D., magna cum laude, 2002). Member, State Bar of Georgia.

** Partner in the firm of Butler, Wooten & Fryhofer, LLP, Columbus and Atlanta, Georgia. The Citadel (B.S., summa cum laude, 2001); Mercer University, Walter F. George School of Law (J.D., magna cum laude, 2004). Member, State Bar of Georgia.

*** Associate in the firm of Butler, Wooten & Fryhofer, LLP, Columbus and Atlanta, Georgia. Mercer University (B.A., magna cum laude, 2003); Mercer University, Walter F. George School of Law (J.D., magna cum laude, 2006). Member, State Bar of Georgia.

**** Associate in the firm of Butler, Wooten & Fryhofer, LLP, Columbus and Atlanta, Georgia. Emory University (B.A., 2000); Georgetown Public Policy Institute (M.P.P., 2004); University of Georgia School of Law (J.D., magna cum laude, 2007). Member, State Bar of Georgia.

***** Associate in the firm of Butler, Wooten & Fryhofer, LLP, Columbus and Atlanta, Georgia. University of Kentucky (B.A., summa cum laude, 1999); Mercer University, Walter F. George School of Law (J.D., magna cum laude, 2007). Member, State Bar of Georgia.

****** Associate in the firm of Butler, Wooten & Fryhofer, LLP, Columbus and Atlanta, Georgia. Vanderbilt University (B.A., cum laude, 2004); University of Georgia School of Law (J.D., magna cum laude, 2008). Member, State Bar of Georgia.

******* Associate in the firm of Butler, Wooten & Fryhofer, LLP, Columbus and Atlanta, Georgia. Auburn University (B.A., cum laude, 2004); Mercer University, Walter F. George School of Law (J.D., cum laude, 2007). Member, State Bar of Georgia.

I. Introduction

This Article addresses significant judicial and legislative developments of interest to the Georgia civil trial practitioner occurring during the survey period of this publication.¹

II. Legislation

Signed by Governor Deal on May 3, 2011, House Bill 24² rewrites and replaces the Georgia Evidence Code³ as codified in Title 24 of the official code of Georgia Annotated (o.c.G.A.).⁴ The Act loosely conforms Title 24 to the Federal Rules of Evidence and makes the changes effective for any motion, hearing, or trial commencing on or after January 1, 2013.⁵

III. Case Law

A. Choice of Law

In Carroll Fulmer Logistics Corp. v. Hines,⁶ the Georgia Court of Appeals held that the substantive law of Georgia applied to a wrongful death and survival action filed in Georgia but arising from a Florida tractor-trailer wreck.⁷ Utilizing the public policy exception⁸ to the traditional doctrine of lex loci delicti,⁹ the court determined that the Florida Wrongful Death Act,¹⁰ which specifically provides for the calculation of wrongful death damages based upon the value of the

1. For analysis of Georgia trial practice and procedure law during the prior survey period, see Kate S. Cook et al., Trial Practice and Procedure, Annual Survey of Georgia Law, 62 Mercer L. Rev. 339 (2010).

2. Ga. H.R. Bill 24, Reg. Sess., 2011 Ga. Laws 99 (to be codified at O.C.G.A. tit. 24).

3. O.C.G.A. tit. 24 (2010).

4. Ga. H.R. Bill 24 § 2.

5. Id. § 1. Because of this effective date, any substantive changes to the Georgia Evidence Code will be addressed in the next survey period.

6. 309 Ga. App. 695, 710 S.E.2d 888 (2011).

7. Id. at 695, 698, 710 S.E.2d at 890-91.

8. Under this exception, a Georgia court will not apply another state's substantive law if that state's law contravenes public policy, notwithstanding the fact that the tort at issue occurred in that other state. Id. at 696, 710 S.E.2d at 890.

9. See Dowis v. Mud Slingers, Inc., 279 Ga. 808, 809, 621 S.E.2d 413, 414 (2005) (stating that under the doctrine of lex loci delicti a tort action is governed by the substantive law of the state where the tort was committed).

10. Fla. Stat. §§ 768.16-.26 (2011), available at http://www.leg.state.fl.us/Statutes/ index.

decedent's life to the statutory survivors and prohibits damages for pre-death physical and mental anguish,¹¹ differed sufficiently from Georgia law so as "to render the Florida Act in contravention of Georgia public policy."¹² The court of appeals held that "the trial court correctly ruled that Georgia rather than Florida substantive law applies to the wrongful death and survival actions."¹³

B. Dismissals, Renewals, and Service of Process

In Teel v. Wal-Mart Stores East LP,¹⁴ the United States District Court for the Middle District of Georgia, applying Georgia law, ruled that a plaintiff demonstrated "just enough" reasonable diligence to perfect service after the statute of limitations expired, despite her initial failure to ensure her process server was court-appointed and her use of ordinary United States mail to petition for an order appointing a special process server once the error was discovered.¹⁵

In Kilgore v. Stewart,¹⁶ the plaintiff originally sued two parties, voluntarily dismissed them one at a time, and then filed a renewal action against both parties pursuant to Georgia's renewal statute.¹⁷ The Georgia Court of Appeals held that the plaintiff's first dismissal was ineffective because the plaintifffailed to obtain a court order permitting voluntary dismissal of fewer than all of the parties to the action, as required by Georgia law.¹⁸ Because a prerequisite to filing a valid renewal action is a valid dismissal of the original action, and because neither defendant was validly dismissed from the original action by the time the plaintiff filed the renewal action, the court reasoned that the renewal action should likewise have been dismissed.¹⁹

In Ehrhardt v. Manuel,²⁰ the court of appeals reemphasized that a plaintiff is entitled to file one, and only one, renewal action after the

11. See Fla. Stat. § 768.21.

12. Carroll, 309 Ga. App. at 698, 710 S.E.2d at 891.

13. Id.

14. No. 4:10-CV-114 (CDL), 2010 WL 5462511 (M.D. Ga. Dec. 29, 2010).

15. Id. at *2-3. In an interesting procedural footnote, the court explained that Georgia law required the court to review the issue of reasonable diligence de novo at the motion to dismiss stage, and that it was not required to convert the motion to dismiss into a motion for summary judgment. Id. at *2 n.1. The court also observed that when a trial court treats the issue of reasonable diligence de novo, it makes factual determinations that should not be reversed on appeal absent an abuse of the trial court s discretion. Id.

16. 307 Ga. App. 374, 705 S.E.2d 209 (2010).

17. Id. at 374, 705 S.E.2d at 209; O.C.G.A. § 9-2-61(a) (2007).

18. Kilgore, 307 Ga. App. at 375, 705 S.E.2d at 209-10 (quoting Rosales v. Davis, 260

Ga. App. 709, 710, 580 S.E.2d 662, 663 (2003)); see also O.C.G.A. § 9-11-21 (2006).

19. Kilgore, 307 Ga. App. at 375, 705 S.E.2d at 210.

20. 306 Ga. App. 6, 700 S.E.2d 910 (2010).

expiration of the applicable statutes of limitation.²¹ The plaintiffs in Ehrhardt timely filed suit, voluntarily dismissed their case, and then re-filed the suit after the running of the applicable statutes of limitation. After no written orders were filed in the renewal action for five years, the case was dismissed by operation of law.²² The plaintiff sought to re-file again, arguing that the one-renewal limitation found in O.C.G.A. § 9-2-61²³ should not be applicable to cases filed after a dismissal pursuant to the "five-year rule."²⁴ The court of appeals rejected the plaintiffs' argument, holding that the plaintiffs "were only entitled to one renewal after the running of the statutes of limitation" despite the fact that the second dismissal was pursuant to the five-year rule.²⁵

The court of appeals dealt a similar blow to the plaintiff in Williams v. Patterson.²⁶ In Williams, service on the original action took nearly a year. The plaintiff then dismissed the case and re-filed it shortly thereafter, but was again unable to timely effect service. The defendant filed an answer and a motion to dismiss, asserting, among other things, that the plaintiff's action was barred by lack of service of process.²⁷ The court of appeals held that the plaintiff had not been reasonably diligent in effecting service, observing that there had been at least two

21. Id. at 7, 700 S.E.2d at 912.

22. Id. at 6, 700 S.E.2d at 911.

23. O.C.G.A. § 9-2-61 (2007).

24. Ehrhardt, 306 Ga. App. at 7, 700 S.E.2d at 911. There are two versions of the five-

year rule. See O.C.G.A. § 9-2-60(b)-(c) (2007); and O.C.G.A. § 9-11-41(e) (2006). The

relevant portions of O.C.G.A. § 9-2-60 provide the following:

(b) Any action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.

(c) When an action is dismissed under this Code section, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.

O.C.G.A. § 9-2-60(b)-(c). O.C.G.A. § 9-11-41(e) provides the following:

Any action in which no written order is taken for a period of five years shall automatically stand dismissed, with costs to be taxed against the party plaintiff. For the purposes of this Code section, an order of continuance will be deemed an order. When an action is dismissed under this subsection, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.

O.C.G.A. § 9-11-41(e).

25. Ehrhardt, 306 Ga. App. at 7, 700 S.E.2d at 912. The court further held that this

result was mandated by prior precedent. See id. at 7, 700 S.E.2d at 911-12 (citing White v. KFC Nat'l...