Georgia Supreme Court Blog

February 17, 2010

Driver Not Entitled to Set-Off Employer’s Settlement from Verdict

Filed under: Robert Benham, torts — bce30064 @ 2:37 pm

The Georgia Supreme Court has reversed a decision by the Court of Appeals in a DeKalb County case that involves a dispute over the amount of damages one woman must pay another for the car crash she caused.

According to evidence at trial, in 2004, Joan Dziwura struck the rear of a vehicle driven by Mindy Broda, injuring her. Broda and her husband sued Dziwura and Winmark Homes, the homebuilders for whom Dziwura worked. Dziwura was on her way to a meeting for real estate agents who were selling Winmark Homes when the accident occurred. Dziwura was covered by a $100,000 insurance policy, but the Brodas did not consider that enough, according to briefs filed in the case, and in 2008, the case proceeded to trial.

While the jury was deliberating, Broda and Winmark Homes agreed on a settlement. Under the “high-low” contract, the parties agreed that if Winmark received a favorable verdict or was assessed less than $350,000 in damages, it would pay the Brodas $250,000. If the verdict against Winmark was over $350,000, it would pay the Brodas the exact verdict amount up to a maximum of $3 million. The Brodas agreed to forego the difference of any verdict above $3.1 million.

After a week-long trial, the jury returned a verdict in the amount of $1,002,763, solely against Dziwura. The jury found that Winmark Homes was not liable for the wreck. Dziwura then filed a motion asking the court to reduce the $1 million verdict against her by the $250,000 Winmark had already agreed to pay. The trial court denied the motion, writing in its order that Winmark had been released from its liability and was therefore not a joint “tortfeasor” or wrongdoer. Dziwura appealed, and in March 2009, the Georgia Court of Appeals reversed the DeKalb County court’s ruling, finding that the amount she owed Broda should be reduced by the $250,000 because Broda was not entitled to recover an amount greater than what the jury awarded.

In a unanimous decision written by Justice Robert Benham (data), the high court ruled that the Court of Appeals was wrong, and Dziwura was not entitled to a set-off. Any benefit the injured party receives, the opinion says, “should not be shifted so as to create a windfall for the tortfeasor.” “If a windfall must be had, it will inure to the benefit of the injured party rather than relieve the wrongdoer of full responsibility for his wrongdoing.”

Here the jury determined Winmark Homes did nothing to cause Broda’s injuries. “Since appellee was found to be solely responsible for appellant’s injury, appellee was not entitled to a set-off for any payment received by appellant from a defendant whom the jury determined had no responsibility for the injury,” the opinion says.

More Information:
Georgia Supreme Court Database: BRODA V. DZIWURA (S09G1218)
Georgia Personal Injury Law Reference Page

More Information:
Attorney for Appellants (Brodas): Michael Goldberg
Attorneys for Appellee (Dziwura): William Anderson, Mary Beth Priest
Summary by Georgia Supreme Court Public Information Office


February 12, 2010

How the Court Decides Who Authors Opinions

Filed under: Justices — bce30064 @ 9:35 pm

I’ve been curious to learn how the Georgia Supreme Court decides which justice will write the majority opinion. I know in the U.S. Supreme Court assigning authorship is sometimes a strategic decision that is made, I believe, by the most senior justice in the majority. I enjoyed the chance recently to ask a former Georgia Supreme Court justice how authorship is determined by the Georgia Supreme Court.

At the Georgia Supreme Court, one justice is assigned responsibility for writing the opinion in a case by the Clerk’s Office on a rotational basis at the time a case is docketed. When it’s time to deliberate a case, the author announces how he or she decides the case and the remaining justices vote in agreement or disagreement with the author’s opinion. If the author’s opinion carries a majority vote, it becomes the court’s opinions and opposing justices may attach dissenting opinions. If the author is in the minority, authorship is reassigned by the Clerk’s Office.

The current practice is different than that used years ago, the former justice told me. Years ago, authorship was not reassigned when the author’s view was in the minority. As a result of the old practice, the author might have the write a majority opinion that he or she did not share for the other justices.

Since authorship is determined when cases are docketed, it may be possible to figure out who will be writing an opinion before it is announced. That could help advocates tailor their arguments to the author’s particular view of the law.

February 8, 2010

Court Certifies Former WorldCom Investor’s Fraud Claim Against Citigroup

Filed under: commercial litigation, fraud, George Carley, torts — bce30064 @ 8:17 pm

The Georgia Supreme Court ruled that investors seeking to recover more than $200 million of losses in WorldCom stock has a fraud case against their former security broker his employer (now Citigroup).

Jack Grubman and his investment companies alleges that he wanted to sell his 2.1 million WorldCom shares in 1999, but his broker convinced him to retain his shares and invest more in WorldCom. WorldCom collapsed amid massive accounting fraud and Grubman claims his broker covered up the problems at WorldCom to protect his employer’s money-making relationship with WorldCom.

The matter came before the Georgia Supreme Court as a certified question from the U.S. Second Circuit Court of Appeals. On occasion, federal courts may certify a question of state law to a state supreme court. In this case, the Second Circuit asked the Georgia Supreme Court whether Grubman et al have a valid claim under Georgia law.

The Georgia Supreme Court, in a unanimous opinion authored by Justice Carley (data), held that Georgia law recognizes a fraud claim where investors have been induced to not sell securities and that, under Georgia law, a brokerage firm owes a fiduciary duty to a non-discretionary account. Additionally, the Court noted that Grubman et al must prove the alleged fraud proximately caused their losses.

This case is far from over. We might expect the Second Circuit to rule in Grubman et al’s favor against Citigroup based on the response from the Georgia Supreme Court, but predicting the outcome of a case as complicated and high stakes as this is far from an exact science.

Georgia Supreme Court Database: Holmes et al. V. Grubman et al. (S09q1585): Full Text and Visual Summary

Legal Resources:
Georgia Commercial Litigation Information: From the Center for Legal Solutions

February 4, 2010

Revision or Revocation? 5-2 Decision Validates Ink Changes to Will

Filed under: George Carley, Hugh Thompson, wills — bce30064 @ 2:00 am

In a 5-to-2 decision released February 1, 2009, the Georgia Supreme Court upheld a Gwinnett County court’s finding that the will left by Marion Peterson was legally valid, despite changes she made in pen.

Peterson, who died in 2008, wrote her will in 1976. As required by state law, two witnesses attested to the will’s legitimacy. In the document, Peterson left her estate in the form of a trust to her longtime companion, Vasta Lucas, whom she also named as executor or manager of the estate. Upon Lucas’s death, any remaining assets were to be distributed to four beneficiaries, including her brother and sister, Arvin Peterson and Carolyn Basner.

At some point after the will’s execution, Peterson struck through with an ink pen the names of all successor beneficiaries. She also struck through language naming Richard Harrell as successor executor and trustee once Lucas died. Instead, she wrote that Julie Peterson was to be the will’s executor. No one witnessed or attested to the strikethroughs.

After Peterson’s death, Lucas filed a petition in probate court asking the court to authorize the will as valid. But Peterson’s siblings filed a “caveat,” contesting the will as invalid and arguing that Peterson had revoked the will by virtue of the strikethroughs.

Georgia law states: “The intent to revoke [a will] shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence.”

The trial court ruled against the siblings and admitted the will to probate. Lucas has since died, and the court appointed Harrell as executor and trustee of the estate.

In an opinion written by Justice Hugh Thompson (data), the high court affirmed the lower court’s ruling, finding no error in the conclusion that Peterson “did not intend to revoke her entire will.” The will was found in good condition on Peterson’s desk, with the proper signatures, and she had initialed her changes. “As found by the trial court, this evidence clearly indicates testator’s intent to cancel only certain provisions of the will, not an intent to revoke the will in it its entirety as required for revocation” under the law.

But in dissent, Presiding Justice Carley (data) wrote that “the cancellation of a material portion of the will raises the presumption, which has not been rebutted, that Testatrix intended to revoke the entire will. … Because there was an actual cancellation of the names of all successor beneficiaries, the next question presented is whether that cancellation is ‘material’ within the meaning of the statute.” Justice Carley concluded the cancellation was material “because it directly affected the distribution of all property in the estate.” The trial court’s ruling should be reversed, according to the dissent, which was joined by Chief Justice Carol Hunstein (data).

More Information:
Georgia Supreme Court Database: PETERSON V. HARRELL (S09A1857): Full Text and Visual Summary

Summary by the Georgia Supreme Court Public Information Office
Attorney for Appellant (Peterson): Tom Pye
Attorney for Appellee (Harrell): Michael Goode

Legal Resources:
Georgia Estate Planning and Probate Information: From the Center for Legal Solutions

February 2, 2010

Waive the Marital Estate Goodbye: Court Deeply Divided on Divorce Procedure

Filed under: Carol Hunstein, Family Law, Harold Melton — bce30064 @ 3:42 am

In a split 4-to-3 decision, the Georgia Supreme Court has ruled against a White County woman who claims the lower court was wrong to conduct the final hearing in her divorce without her being present.

The decision reveals a deep divide among the justices on a fundamental matter of family law: how trial courts are to conduct hearings to finalize divorces. It is the first Family Law Pilot Project decision in over a year not unanimously decided. Data on Family Law Pilot Project Cases.

According to the record, in June 2008, Otis Dan Ellis filed for divorce from Bonnie Lou Ellis, his wife of 14 years. She was not represented at the time by a lawyer, and she failed to file any pleadings in response to her husband’s complaint.

Subsequently, Mrs. Ellis hired Hammond Law as her attorney, although he too did not file a response. According to Mr. Law, the husband’s attorney (Brett Turner), assured Law that Mr. Turner would notify him when the final hearing in the divorce was scheduled. But by the time the hearing occurred, the husband had hired a second attorney, Carol Sheppard, who claimed she had no knowledge of any agreement to notify the wife’s attorney. A week after entering the case, Sheppard filed a motion to enter a final judgment of divorce based on the husband’s pleadings and without holding a hearing on the evidence. The trial court granted the motion, making the divorce decree final.

In February 2009, Law filed a motion for new trial on behalf of the wife, based on the alleged agreement made by the husband’s first attorney to provide him with notice of any final hearing date. The superior court denied the motion, finding that under the law, the wife had waived the right to receive notice by failing to file responsive pleadings.

“Therefore, in this case, Wife waived any notice regarding the final hearing by failing to file a responsive pleading, and the trial court properly denied her motion for new trial,” according to the majority opinion, written by Justice Harold Melton (data). Georgia law states that “the failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of time and place of trial and entry of judgment…”

As a general rule, the majority opinion states, “when a defendant in a divorce action fails to file defensive pleadings, the divorce is, by definition, uncontested. Failure to file defensive pleadings constitutes waiver of notice of the hearing on the final decree.” The opinion continues: “The bottom line in this case is that the trial court had evidence on which to base its ruling.” As a result, there was no judgment by default in this case, which state law prohibits in divorce cases.

But in dissent, Chief Justice Carol Hunstein (data) writes that what the trial court did “was clear error.” It entered judgment based solely on the husband’s motion without holding a hearing on the evidence. The only evidence was his two-page complaint and an affidavit about his finances, which provided no evidence regarding the couple’s joint property.

“Notwithstanding this dearth of evidence, the trial court, apparently of the belief that Wife’s failure to file responsive pleadings entitled Husband to decide how the parties’ property should be divided, unquestioningly approved the divorce decree drafted by Husband’s attorney,” the dissent says. “Not surprisingly, the decree awarded Husband essentially the entire marital estate… Simply stated, the trial court gave Husband everything he wanted, without any evidence to support a finding that such division was equitable.” Furthermore, the dissent says, the “swift efforts” by the husband’s second attorney to obtain a final judgment without notice to the wife or her attorney “appear alarmingly calculated, if not deliberately blindsiding.”

“In sum, because the divorce decree is unsupported by evidence, and because the manner of resolution of this case violated basic notions of fairness and professionalism, I must respectfully dissent.” The Chief Justice’s dissent was joined by Presiding Justice George Carley (data) and Justice Robert Benham (data).

More Information:
Georgia Supreme Court Database: ELLIS V. ELLIS (S09F1798) : Full Text and Visual Summary

Summary by the Georgia Supreme Court Public Information Office
Attorney for Appellant (Bonnie): George Law, III
Attorney for Appellee (Otis): Carol Sheppard, Vic Hill, Brad MacDonald

Legal Resources:
Georgia Divorce and Family Law Information: From the Center for Legal Solutions

February 1, 2010

Cocaine, Gay Sex & Murder: Court Upholds Buckhead Murder Conviction

Filed under: Uncategorized — bce30064 @ 4:18 pm

Joseph Hall, Jr. (Source: GA DOC)

The Georgia Supreme Court has upheld the murder conviction and life prison sentence given by a Fulton County court to Joseph Hall, Jr. for the 2002 murder of David Cook. Hall was 18 when he was accused of murdering Cook in his Buckhead condominium after Cook allegedly made unwanted homosexual advances.

According to legal briefs and evidence at trial, Hall and his co-defendant, Edward McCloud, 21, were college students when they took a Greyhound bus from Montgomery, AL to Atlanta in April 2002. In an area frequented by Atlanta’s gay community, they met Cook, a travel agent, who offered to take them to his high-rise condominium near Lenox Mall to “party” and have sex. A video surveillance tape at the Grandview condominiums showed the three entering the parking deck and elevator to Cook’s apartment around 1 a.m., and Hall and McCloud leaving about two hours later. At trial, Hall testified that while high on cocaine, he watched Cook and McCloud have sex. However, Hall later shunned Cook’s advances, and when Cook tried to force him to have sex, Hall said he stabbed him more than 20 times. He said he was in a trance triggered by childhood memories of seeing his father stab his mother to death. He said that McCloud wrapped Cook’s head in a pillow case and towel, then cut Cook’s throat. After tying up his hands and feet with a telephone cord and a yellow shirt, the two took Cook’s car and credit cards and headed back to Alabama. Cook’s nude body was discovered in his blood-spattered apartment several days later after co-workers became concerned when he did not show up for work.

In June 2003, Hall was sentenced to life in prison plus 33 years for malice murder, aggravated assault, theft by taking and credit card fraud. (McCloud was also convicted and given the same sentence, and the state Supreme Court affirmed his convictions in 2008.)

Edward McCloud

Edward McCloud (Source: GA DOC)

In today’s unanimous opinion, Justice Robert Benham (data) writes that the evidence at trial “was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder, aggravated assault, theft by taking, and financial transaction card theft.” In his appeal, Hall argues the trial court was wrong not to grant him a new trial on a number of grounds, including that his trial attorney was ineffective for failing to show the video surveillance tape to the jury. That tape would have corroborated his testimony that he killed Cook in self-defense, Hall argues.

But in its opinion, the high court rejected this and Hall’s other claims, including that the trial court erred when it allowed the prosecutor to ask a potential juror how he felt about Atlanta being ranked among the “top five American cities with the most gay people in it.” Hall’s attorney didn’t object at the time, the opinion states, and Hall therefore cannot raise the issue on appeal.

More Information: Georgia Supreme Court Database: HALL V. THE STATE (S09A1468) : Full Text and Visual Summary

Summary by Georgia Supreme Court Public Information Office
Attorney for Appellant (Hall): Cynthia Price
Attorneys for Appellee (State): Paul Howard, Jr., District Attorney, Bettieanne Hart, Dep. Asst. D.A., Stephany Luttrell, Asst. D.A., Thurbert Baker, Attorney General, Mary Beth Westmoreland, Dep. A.G., Paula Smith, Sr. Asst. A.G., Mary Ware, Asst. A.G.

January 28, 2010

Double-Dipping Cop Set Free on Technicality of Grand Jury Notice

Filed under: Uncategorized — bce30064 @ 5:01 pm

Leonard Smith

Leonard Smith (Source: GA DOC)

The Supreme Court of Georgia has ruled in favor of a Dooly County police officer and upheld a decision by the Georgia Court of Appeals that threw out his conviction and five-year prison sentence for alleged “double-dipping.”

The high court agreed to review the appeal to determine whether Georgia law required that as a police officer, he should have been notified of when his case was to be presented to the grand jury. “We conclude that notice of the specific time and place of the grand jury presentment is required to be provided to the accused by the State,” states the unanimous opinion, written by Justice Harris Hines (data).

The case involves Sergeant Leonard Smith who, according to legal briefs, was a full-time officer for the Fort Valley Police Department when he was hired in 1999 by the City of Unadilla police. He eventually became Chief of the Unadilla Police Department, while continuing to work for Fort Valley. In both jobs, he was required to fill out time cards. In 2006, a former Unadilla city councilman obtained Smith’s Unadilla time cards and handed them over to Fort Valley’s police chief, who initiated an investigation into whether Smith had been billing both departments for the same time periods. The Georgia Bureau of Investigation also began investigating and documented seven instances of Smith’s alleged double-dipping.

Following the investigation, Smith was served with a copy of the proposed indictment charging him with seven counts of making false statements and writings. The indictment indicated his case would be presented during the grand jury’s January 2007 term, but it did not specify when.

Without Smith being present, the grand jury returned a true bill on Jan. 29, 2007. The case went to trial and Smith was found guilty of three counts of making false statements and acquitted of the other four. He was sentenced to five years in prison and 10 years on probation. Smith appealed, and in March 2009, the Court of Appeals reversed the trial court’s judgment and sent the case back to the lower court.

The Appeals Court concluded that under two Georgia laws, the State was required to notify Smith of when the proposed indictment would be presented to the grand jury so he could exercise his right to appear during the proceedings.

“The legal conclusion of the Court of Appeals is sound,” today’s opinion says.

More Information: Georgia Supreme Court Database: THE STATE v. SMITH (S09G1287) : Full Text and Visual Summary

Summary by Georgia Supreme Court Public Information Office
Attorneys for Appellant (State): Denise Fachini, District Attorney, Cheri Nichols, Asst. D.A.
Attorney for Appellee (Smith): Stephen Hollomon

January 26, 2010

Court Reinstates Death Penalty Despite Defender’s Deficient Trial Preparation

Filed under: attorneys, Carol Hunstein, criminal law, Death Penalty, murder — bce30064 @ 7:30 pm


Donnie Lance (Source: GA DOC)

The Supreme Court of Georgia has reinstated the death sentences given to a Jackson County man for the 1997 murders of his former wife and her boyfriend.

Donnie Cleveland Lance was convicted in 1999 of killing Sabrina “Joy” Lance and Dwight “Butch” Wood and sentenced to death for each murder. In 2002, the state Supreme Court unanimously affirmed the convictions and death sentences. But the following year, Lance filed a petition for a writ of habeas corpus – a civil proceeding that gives already convicted prisoners another chance to challenge their case in the county where they’re imprisoned. In April 2009, the habeas judge upheld Lance’s convictions but overturned his death sentences, finding that his trial attorney had provided “ineffective assistance of counsel” for failing to investigate claims that Lance had mental health problems. The state attorney general, representing the prison warden and on behalf of the State, appealed the ruling that threw out the death penalty, while Lance’s attorneys appealed the ruling that upheld his murder convictions.

In a unanimous January 25, 2010 decision, Chief Justice Carol Hunstein (data), wrote “we reverse and reinstate Lance’s death sentences.” In response to Lance’s cross appeal, “we affirm” Lance’s convictions.

According to evidence at trial, Lance had a history of violence against his wife, including electrocuting her with a car battery, beating her with his fist, a belt and a handgun and threatening her with flammable liquid and a chain saw. Joy’s father testified that just before midnight on Nov. 8, 1997, Donnie had called looking for Joy, and he told him she wasn’t there. Lance went to Wood’s trailer home, kicked in the front door and shot Wood twice with a shotgun, killing him. He then beat Joy with a shotgun with such force that the gun broke into pieces and her face was “utterly unrecognizable.” Lance later told a friend that his ex-wife, whom he called a derogatory name, would not be coming that day to clean the house and that both Joy and her boyfriend were dead. After his arrest, Lance bragged to an inmate that “he hit Joy so hard that one of her eyeballs stuck to the wall.”

In a 29-page decision, the high court agreed that Lance’s trial attorney “performed deficiently in failing to prepare for Lance’s trial by investigating Lance’s background.” Had the attorney investigated, he would have learned that Lance had a history of alcohol abuse, had ingested gasoline as a child, was once exposed to toxic fumes while cleaning an oil tank, had been shot in the head and had been injured in car crashes, one of which when he was fleeing police while drunk. He’d also been treated at Georgia Regional Hospital for depression. However, “[g]iven Lance’s long history of contemplating the murder of Joy Lance and Butch Wood, the manner in which he finally carried out their murders, and his utter disregard for their suffering and deaths afterward, we conclude that the new evidence of Lance’s subtle neurological impairments, even when considered together with the other mitigating evidence that was or should have been presented at trial, would not in reasonable probability have changed the outcome of the sentencing phase if it had been presented at Lance’s trial,” the decision states. “We also conclude, contrary to Lance’s arguments in his cross-appeal, that the new evidence of subtle neurological impairments would not have significantly affected the jury’s deliberations during the guilt/innocence phase.”

More Information: Georgia Supreme Court Database: HALL, WARDEN V. LANCE (S09A1536) and LANCE V. HALL, WARDEN (S09X1538) : Full Text and Visual Summary

Summary by Georgia Supreme Court Public Information Office

Attorneys for Appellant (State): Thurbert Baker, Attorney General, Mary Beth Westmoreland, Dep. A.G., Beth Burton, Sr. Asst. A.G.
Attorneys for Appellee (Lance): L. Joseph Loveland, James Boswell

January 25, 2010

2010 Opinions Put Law Enforcement on Win Streak

Filed under: Uncategorized — bce30064 @ 4:49 pm

The Georgia Supreme Court published 26 written opinions today in area ranging from the death penalty to claims preclusion to election law. Law enforcement consistently prevailed in today’s opinions: the Court reinstated the death sentence on Donnie Lance, upheld murder convictions in 10 other cases and set a Dooly County police officer free from prison based on technical error in his grand jury notice.

The Court upheld the dismissal of challenges to Douglas County elections. The Court also decided 4 attorney discipline cases. We expect to publish summaries of some of these cases this week.

January 19, 2010

Justices’ Personalities on Display in Oral Arguments

Filed under: David Nahmias, Justices — bce30064 @ 10:57 pm


I enjoyed the opportunity to observe today’s oral arguments. It was my first time observing the present composition of the Court in action. What impressed me, apart from the merits of the cases being argued, is the range of personalities represented on the court.

Justice Nahmias (data), the Court’s newest justice, asks the most questions during oral arguments. His questions demonstrate that he has studied the parties’ briefs carefully and understands the complex issues before the Court. He appears to have the sharpest legal mind in the courtroom.

Justices Hines (data) and Thompson (data) ask some questions during oral arguments. Justice Hines reveals his appreciation for trial courts and how the Court’s legal rulings affect the operation of trial courts. Justice Thompson appears particularly interested in how the Court’s ruling on a particular matter affects public policy.

Justice Melton (data), who speaks with a deep southern accent, is quiet yet attentive. Justice Carley (data) is also reserved during oral arguments, but does occasionally interject incisive questions that that make one think of a good country lawyer.

Justices Hunstein (data) and Benham (data) seem disengaged from oral arguments. It appeared to me that Justices Hunstein and Benham spent most of oral argument nudging the mouse controllers to their respective computer monitors. Justice Hunstein did engage the arguments when her name was mentioned as offering a dissenting view relevant to the case at bar, but was otherwise subdued.

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