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

• Jurisdiction: Georgia,United States
• Publication year: 2010
• Citation: Vol. 62 No. 1

Trial Practice and Procedure

by Kate S. Cook*** Alan J. Hamilton** Brandon L. Peak*** John C. Morrison III**** and Mary K. Weeks^*****

I. Introduction

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

* Associate 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.

** Associate in the firm of Butler, Wooten & Fryhofer, LLP, Columbus and Atlanta, Georgia. Auburn University (B.S.B.A., 2001); University of Georgia 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. 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. 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.

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, 61 Mercer L. Rev. 363 (2009).

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II. Legislation

Georgia Senate Bill 344² amended section 31-8-195.1 of the Official Code of Georgia Annotated (O.C.G.A.)³ to extend sovereign immunity to physicians' assistants working in "safety net clinics."⁴ The initial act only extended immunity to physicians and nurses.⁵

Georgia Senate Bill 491⁶ has been enacted to affect service of process⁷ in the following ways: (1) it allows process servers to be certified statewide;⁸ (2) it requires process servers to be admitted into gated and secured communities for purposes of effecting service;⁹ and perhaps most importantly, (3) it requires proof of service to be made within five business days of service.¹⁰ If proof of service is not timely made, the time a party has to answer is now tolled until the proof of service is filed.¹¹

The Georgia General Assembly recently enacted Georgia Senate Bill 138,¹² which added a new code section that prohibits the implicit finding of any private right of action from any act that is enacted after July 1, 2010.¹³ To narrow the potentially broad ramifications of subpart (a) of the added code section, O.C.G.A. § 9-2-8,¹⁴ subpart (b) of the added section provides that the statute cannot

be construed to prevent the breach of any duty imposed by law from being used as the basis for a cause of action under any theory of recovery otherwise recognized by law, including, but not limited to, theories of recovery under the law of torts or contract or for breach of

2. Ga. S. Bill 344, Reg. Sess., 2010 Ga. Laws 209 (codified at O.C.G.A. § 31-8-195.1 (Supp. 2010)).

3. O.C.G.A. § 31-8-195.1 (2009 & Supp. 2010).

4. Ga. S. Bill 344 at § 1, 2010 Ga. Laws at 209.

5. O.C.G.A. § 31-8-195.1(a)-(b) (2009) (amended 2010).

6. Ga. S. Bill 491, Reg. Sess., 2010 Ga. Laws 822 (codified at O.C.G.A. §§ 9-10-91, 911-4, 9-11-4.1 (Supp. 2010)).

7. Senate Bill 491 also allows Georgia superior courts to exercise personal jurisdiction over nonresidents in domestic relations cases. Id. at § 1, 2010 Ga. Laws at 823 (codified

at O.C.G.A. § 9-10-91(5) (Supp. 2010)).

8. Ga. S. Bill 491 at § 5, 2010 Ga. Laws at 825 (codified at O.C.G.A. § 9-11-4.1(a) (Supp. 2010)).

9. Id. at § 3, 2010 Ga. Laws at 824 (codified at O.C.G.A. § 9-11-4(f)(4) (Supp. 2010)).

10. Id. at § 4, 2010 Ga. Laws at 825 (codified at O.C.G.A. § 9-11-4(h) (Supp. 2010)).

11. Id.

12. Ga. S. Bill 138, Reg. Sess., 2010 Ga. Laws 745 (codified at O.C.G.A. § 9-2-8 (Supp.

2010)).

13. Id. at § 2, 2010 Ga. Laws at 745 (codified at O.C.G.A. § 9-2-8(a) (Supp. 2010)).

14. O.C.G.A. § 9-2-8 (Supp. 2010).

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legal or private duties as set forth in Code Sections 51-1-6 and 51-1-8 or in Title 13.¹⁵

III. CASE LAW

A. Voluntary Dismissals, Service of Process, and Notice Issues

Although the exhaustive opinion of the Georgia Court of Appeals in Resource Life Insurance Co. v. Buckner¹⁶ is a must-read for lawyers practicing in the field of consumer class actions, it also provides clarification on the issues of when and under what terms presuit notice is required in the individual and class action context. Plaintiff Buckner filed a class action lawsuit, alleging that she and a class of similarly situated insureds did not receive their refund of unearned credit insurance premiums when their insured automobile loans terminated early.¹⁷ The credit life and disability insurance products at issue in Resource Life were single-premium, meaning the entire premium was paid up front and fully earned by the defendant only if the insured loan ran to term.¹⁸ The plaintiff alleged that if the loans did not run to term, the defendant should refund those premiums that had been paid but could never be earned by the defendant.¹⁹

The defendant countered by arguing that it had no obligation to issue refunds to its insureds until each insured provided it with written notice of that insured's entitlement to a refund; consequently, the defendant moved for partial summary judgment on that issue.²⁰ The genesis of the defendant's argument was a statement in its credit insurance certificate that "[i]f the insurance stops before the end of the Term of Insurance, We will on written notice refund any unearned premium."²¹ The trial court denied the defendant's motion for partial summary judgment and granted the plaintiff's motion for class certification.²² On interlocutory appeal,²³ a unanimous panel of the court of appeals rejected the defendant's argument that the language, "on written notice," constituted a mandatory condition precedent that had to be satisfied by

15. Ga. S. Bill 138 at § 2, 2010 Ga. Laws at 745 (codified at O.C.G.A. § 9-2-8(b)).

16. 304 Ga. App. 719, 698 S.E.2d 19 (2010).

17. Id. at 719, 721, 698 S.E.2d at 22-24.

18. See id. at 719-20, 698 S.E.2d at 23.

19. See id. at 721, 698 S.E.2d at 24.

20. Id. at 720-21, 698 S.E.2d at 23-24.

21. Id.

22. Id. at 721-22, 698 S.E.2d at 24.

23. See generally O.C.G.A. § 9-11-23(g) (2006) (stating that "a court's order certifying a class . . . shall be appealable in the same manner as a final order").

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each of its insureds whose loans had terminated early and who were thus owed a refund of an unearned premium by the defendant.²⁴

The court explained that the "on written notice" language in the defendant's insurance certificates did not constitute a condition precedent because the certificates did not state that the insureds would forfeit their unearned insurance premiums if they failed to provide written notice.²⁵ The court further held that "under Georgia law, policy language such as that at issue, which does nothing more than require the insured to give notice of a particular event, is insufficient to create a condition precedent."²⁶ Going one step further, the court noted that even if the certificates' notice provision was a condition precedent, "the filing of the class action itself was sufficient to provide Resource Life with the requisite notice as to the claims of the putative class mem-bers."²⁷ After dispensing with the defendant's primary argument in opposition to class certification, the court likewise affirmed the trial court's class certification order.²⁸ This opinion thus makes clear that by filing a class action, a class representative can satisfy any notice required of absent class members.

In Boca Petroco, Inc. v. Petroleum Realty II,²⁹ the Georgia Supreme Court issued a noteworthy opinion that addresses the right to file a notice of lis pendens³⁰ pursuant to O.C.G.A. § 44-14-610³¹ against Georgia properties potentially compromised by out-of-state litigation. In Boca underlying litigation was commenced in Florida that concerned property and leasehold rights for various gas stations and convenience stores located in several different Georgia counties. Boca filed notices of lis pendens in the superior court of each respective county where the property at issue was located, and the property owner, Petroleum Realty, filed petitions to cancel those notices.³² The varying superior courts were split concerning the validity of such notices.³³ The supreme court held that lis pendens notices could not be filed to give notice of out-of-state litigation, reasoning that although the ability to file a notice of lis

24. Resource Life, 304 Ga. App. at 726, 698 S.E.2d at 27.

25. Id. at 726-27, 698 S.E.2d at 27.

26. Id. at 727, 698 S.E.2d at 27-28.

27. Id. at 727, 698 S.E.2d at 28.

28. Id. at 728, 734, 698 S.E.2d at 29, 32.

29. 285 Ga. 487, 678 S.E.2d 330 (2009).

30. The purpose of lis pendens "is to inform prospective purchasers that real property is directly involved in a pending lawsuit, in which lawsuit there is some relief sought in regard to that particular property." Id. at 488, 678 S.E.2d at 332.

31. O.C.G.A. § 44-14-610 (2002).

32. Boca, 285 Ga. at 487-88, 678 S.E.2d at 331-32.

33. See id. at 488, 678 S.E.2d at 332.

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pendens has been codified,³⁴ "Georgia continues to require a showing of the common law elements of lis pendens before finding that litigation gives rise to a valid lis pendens for which notice may be filed."³⁵ As the supreme court explained, these common law elements include the requirement that a court have jurisdiction of...