Trial Practice and Procedure

• Publication year: 2016

Trial Practice and Procedure

Brandon L. Peak

Tedra C. Hobson

David T. Rohwedder

Robert H. Snyder

Joseph M. Colwell

Christopher B. McDaniel

Rory A. Weeks

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Trial Practice and Procedure

by Brandon L. Peak,^* Tedra C. Hobson,^** David T. Rohwedder,^*** Robert H. Snyder,^**** Joseph M. Colwell,^***** Christopher B. McDaniel,^****** and Rory A. Weeks^*******

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I. Introduction

This Article addresses several significant opinions and legislation of interest to the Georgia civil trial practitioner issued during the Survey period of this publication.¹

II. legislation

One of the most significant bills passed and signed into law during this year's legislative session was House Bill 927, otherwise known as the Appellate Jurisdiction Reform Act of 2016.² House Bill 927 changes the procedures of the Georgia Court of Appeals, transfers jurisdiction over certain cases from the Georgia Supreme Court to the court of appeals, and makes significant changes to the Supreme Court's composition.³ In the court of appeals, House Bill 927 removes the statutory procedures for cases heard by more than a single division of the court of appeals, and it provides that the court of appeals may establish its own rules governing cases heard by more than a single division.⁴ House Bill 927 similarly provides that the court of appeals shall establish its own rules regarding precedent and overruling prior precedent, rather than remaining bound by statutory procedures.⁵ The court of appeals will now have direct appellate jurisdiction (instead of the cases being directly appealable to the Georgia Supreme Court) over cases involving the following: title to land; all equity cases, except those involving the death penalty; wills; extraordinary remedies, except those involving the death penalty; divorce and alimony; and all other cases not reserved to the Georgia Supreme Court or conferred on other courts.⁶ House Bill 927 makes changes to the composition of the Georgia Supreme Court.⁷ The bill adds two justices to the Georgia Supreme Court, provides for a procedure for appointment by the Governor for these two new justices, and changes the terms of the court.⁸

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Trial practitioners should pay close attention to these changes to Georgia's appellate courts and how these changes will affect appeals from Georgia's trial courts.

III. Case Law

A. Ante Litem Notice

In City of Greensboro v. Rowland,⁹ the Georgia Court of Appeals held that the plaintiffs had provided adequate ante litem notice under section 36-33-5(b)¹⁰ of the Official Code of Georgia Annotated ( O.C.G.A.).¹¹ The plaintiffs' counsel sent the city letters identifying the plaintiffs' street addresses, explaining that the plaintiffs had retained counsel because of "run-off of waste water on their property as a result of a project undertaken by the City of Greensboro, which has ultimately resulted in an unlawful taking of their property rights,"¹² and noting that counsel was authorized to settle the case without first filing an action.¹³ The court held that the notice was adequate, even though it did not identify a specific event, because "repeated instances of flooding is a claim for continuing trespass or nuisance"¹⁴ and gives rise to a new cause of action daily.¹⁵

In In re Estate of Leonard,¹⁶ the Georgia Court of Appeals affirmed, over a dissent, the trial court's grant of summary judgment to Whitfield County because, under O.C.G.A. § 36-11-1,¹⁷ the plaintiff failed to send a timely ante litem notice.¹⁸ The majority opinion concluded that the plaintiff's ante litem notice was untimely even though the plaintiff's counsel sent a letter to the county's outside counsel less than six months after the eighty-two year old plaintiff suffered two broken legs while riding a county bus.¹⁹ The majority emphasized that the county had not formally authorized its outside counsel to accept service on the county's behalf and deemphasized that negotiations between the county's outside counsel

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and the plaintiff's counsel had taken place before the ill-fated letter was sent.²⁰

In Silva v. Georgia Department of Transportation,²¹ the Georgia Court of Appeals held that the plaintiff had not strictly complied with O.C.G.A. § 50-21-26(a)(5)(E),²² the ante litem notice provision of the Georgia Tort Claims Act, because she did not include the amount of loss claimed.²³ In doing so, the court concluded that Board of Regents of the University System of Georgia v. Myers²⁴ —which held that even if the full extent of the "loss was yet to be determined,"²⁵ failure to "state any amount of loss whatsoever"²⁶ did not constitute strict compliance with the statute²⁷ —applied retroactively.²⁸

B. Apportionment

In Zaldivar v. Prickett,²⁹ the plaintiff was employed by the non-party, Overhead Door, when he was involved in a wreck with the defendant. The plaintiff and the defendant blamed each other for the wreck. At trial, the defendant sought to have the jury apportion fault to Overhead Door for negligently entrusting the vehicle to the plaintiff.³⁰ The Georgia Court of Appeals held that fault could not be apportioned to Overhead Door because the negligent entrustment of plaintiff's employer could not be the proximate cause of the plaintiff's injuries.³¹ The Georgia Supreme Court disagreed, holding that "negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted."³² The supreme court provided a detailed analysis

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of what "fault" means under the apportionment statute.³³ It reasoned that fault under the applicable subsection:

[I]s most naturally and reasonably understood to require the trier of fact to consider any breach of a legal duty that sounds in tort for the protection of the plaintiff, the breach of which is a proximate cause of the injury about which he complains, whether that breach is attributable to the plaintiff himself, a defendant with liability, or another.³⁴

Because an employer could have a duty to not negligently entrust a vehicle to an employee, and a breach of that duty could proximately cause the plaintiff's injury, the jury could apportion fault to the employer.³⁵

C. Class Actions

In an important class action case, Glynn County v. Coleman,³⁶ the Georgia Court of Appeals, in cases seeking to obtain refunds of ad valorem taxes pursuant to O.C.G.A. § 48-5-380,³⁷ affirmed the trial court's order certifying multiple classes.³⁸ First, the court of appeals held that it was not proper for the defendant to attack class certification under O.C.G.A. § 9-11-12(b)(6),³⁹ holding that "[w]hile a defendant can certainly seek a ruling on a dispositive motion before certification of a class, it cannot use a dispositive motion as a vehicle to deny class certification."⁴⁰ The court further held that O.C.G.A. § 48-5-380 allows for the filing of class actions seeking refunds of ad valorem taxes.⁴¹ Finally, the court held that claims seeking non-monetary relief such as injunctive relief, mandamus, and declaratory judgment are allowable in a class action.⁴²

In Lisk v. Lumber One Wood Preserving, LLC,⁴³ the United States Court of Appeals for the Eleventh Circuit held that Federal Rule of Civil Procedure 23⁴⁴ controls in a case filed in federal court even if the case

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was filed pursuant to a state statute that expressly precludes class actions brought by an individual.⁴⁵ The case was brought under the Alabama Deceptive Trade Practices Act,⁴⁶ which expressly states that no individual can bring a class action pursuant to its provisions.⁴⁷ The Eleventh Circuit held that Rule 23 applied because the case was filed in federal court and that allowing the plaintiff to proceed with a class action was acceptable because doing so did not "abridge, enlarge or modify any substantive right."⁴⁸

D. Discovery & Sanctions

In Elliott v. Resurgens, P.C.,⁴⁹ the Georgia Court of Appeals reversed and remanded the case for a new trial.⁵⁰ The court held that the trial court abused its discretion by excluding probative testimony of a witness who had not been disclosed during discovery, but whose name appeared in the discovery materials, as the curative measure for the alleged discovery violation.⁵¹ The appellate court reiterated that "the only appropriate remedy was postponement of trial or a mistrial."⁵²

In Monolith Companies, LLC v. Hunter Douglas Hospitality, Inc.,⁵³ more than six months after the defendant's answer, the plaintiff served requests for admission to which the defendant neither responded nor objected.⁵⁴ Under O.C.G.A. § 9-11-36(a)(2),⁵⁵ the requests for admission were thus deemed admitted. On appeal, the Georgia Court of Appeals held that "the trial court was without authority to disregard [these] admissions."⁵⁶

E. Dismissal & Renewal

In Global Ship Systems, LLC v. RiverHawk Group, LLC,⁵⁷ the Georgia Court of Appeals reiterated that Georgia's voluntary dismissal statute,

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O.C.G.A. § 9-11-41,⁵⁸ which allows a plaintiff to dismiss an action once without prejudice, cannot be circumvented by adding new plaintiffs to a subsequently filed lawsuit.⁶⁹ In Global Ship Systems, LLC, certain plaintiffs, termed "Global Ship Plaintiffs" by the court, filed their first lawsuit on October 31, 2007 and voluntarily dismissed the same on November 20, 2007. The Global Ship Plaintiffs, with additional plaintiffs not party to the first suit, filed a second lawsuit on November 14, 2008, which was voluntarily dismissed around May 4, 2009. Pursuant to O.C.G.A. § 9-2-61,⁶⁰ a third lawsuit, identical to the second, was filed within six months of the second voluntary dismissal. The trial court granted summary judgment to defendants and dismissed the plaintiffs' third action on the grounds that it was barred by O.C.G.A. § 9-11-41(a)(3).⁶¹

The plaintiffs appealed, contending that the trial court erred because not all plaintiffs were parties to the first lawsuit that was voluntarily dismissed.⁶² Affirming the trial court's grant of...