Notice of Appeal

Georgia Court of Appeals this week

There have not been any Georgia Supreme Court opinions since April 24, and no Eleventh Circuit opinions since the Skop case issued last Thursday. The Georgia Court of Appeals has had a slow trickle of opinions in the last week, though.

Another in a series of recent cases demonstrating the dangers of the construction business (and the difficulty in obtaining damages against anyone for construction-related injuries), in Golden v. Vickery, 2007 WL 1266861, the Georgia Court of Appeals affirmed summary judgment in favor of Vickery and the City of Calhoun, for injuries Golden suffered when his lift came into contact with electrical wires while installing siding on the roof of a building, on the basis of qualified immunity. Golden had notified Vickery that the siding work would be done, requesting the electrical lines be de-electrified for the work. Vickery decided it would be better to install protective coverings, which failed, and resulted in Golden's electrocution, resulting in severe burns.

Georgia Court of Appeals -- April 30

The last day of April saw just a few more cases from the Georgia Court of Appeals.

In the only civil case, Saunders v. Industrial Metals and Surplus, Inc., 2007 WL 1240407, the Court of Appeals affirmed summary judgment to a landowner and a tenant who had been sued for premises liability when the employee of a roofing contractor hired by the tenant (and/or the owner) fell through a skylight, breaking several bones in his back and becoming paralyzed from the waist down. The employee obtained worker's compensation benefits from his employer, and also sought recovery against the defendants, but the trial court granted them summary judgment, ruling that both owner and tenant surrendered possession and control of the property to the roofing contractor, and the tenant had informed the contractor (which in turn informed its employees) of the danger of stepping on the skylights, and that the fault essentially lay with the contractor (and the employee). The Georgia Court of Appeals affirmed that neither the tenant nor owner was responsible, whether based on theories of breach of contract, premises liability, vicarious liability, ratification of the contractor's negligence, or negligent hiring.

The Court of Appeals also issued two opinions in criminal cases, affirming one case over a claim that the trial court lost jurisdiction over the second trial while the appeal arising from the first trial (ending in mistrial, and denial of the subsequent plea in bar based on double jeopardy) was still on appeal, DeSouza v. State, 2007 WL 1240298 (the mistrial and denial of plea in bar was affirmed on appeal, and the second trial resulted in a guilty verdict); and affirming a second case over a claim that the trial court erred in having a discussion with trial counsel (during jury deliberations) about mandatory sentencing provisions while the defendant was absent from the courtroom, Small v. State, 2007 WL 1240317 (perhaps the defendant was concerned that counsel was so ready to discuss sentencing before the jury came back).

Georgia Court of Appeals Roundup

The Georgia Court of Appeals issued a steady fare of opinions this week -- 5 civil and 13 criminal cases.

Starting with the civil cases, the court issued an interesting pair of cases involving Dwain Lee Kirkland.  The facts of each case shed some light on the other. The overall picture is this: Kirkland, now 49, accuses his parents of abusing him to the point where he claims to have PTSD (just diagnosed in 2004). At the age of 22, he moved away from home, although it appears he has returned to the state, and his father has died. His cousin allegedly said false things about him to Dwain's father, such as that he wrote a book so violent that it will never sell, and that he spends all his money on strippers and doesn't have a girlfriend, and also menacing things like "what goes around comes around" (in a "murderous tone" of voice). Also, unnamed persons called him and told him his criminal and psychological records had been filed in probate court.

Georgia Court of Appeals -- April 12 decisions

The Georgia Court of Appeals handed down six cases yesterday -- two civil and four criminal.

The first of the civil cases, Johnson v. Georgia Pacific, was resolved when the Georgia Supreme Court handed down Daimler Chrysler v. Ferrante, which found OCGA 51-14-1 et seq., the asbestos and silica claims statute, unconstitutional as applied to cases accruing prior to the statute's effective date of April 12, 2005. 2007 WL 1087396.

The second case, Halligan v. Brown, a personal injury (car accident) case, affirms the trial court's determination that the defendant driver's unexpectedly passing out while driving was an "act of God" that precludes liability in spite of his running a red light (and thus being negligent per se) as a result of passing out. 2007 WL 1087415.

Two of the criminal cases (Lawton and Jones) were affirmed over claims of ineffective assistance of counsel, and one (Boileau) was affirmed over a claim of insufficient evidence as well as a challenge to admission of similar transaction evidence. However, one of the criminal cases, Mann v. State, 2007 WL 1087410, was reversed: the trial court erred in admitting evidence of cocaine use based on Roche OnTrack TesTstik, without a showing the test had the requisite accuracy to be admitted without expert testimony. The Court of Appeals reversed the trial court's revocation of the defendant's remaining 14 years of probation on the basis of that evidence.

Today's Georgia Court of Appeals Decisions

The Georgia Court of Appeals issued seven decisions today.  Four of these (Rocha, Attaway, Burk and Smith) affirm criminal convictions, and one (In re Am. T.) affirms termination of parental rights. (By the way, permissive parents and fraternities beware -- Burk holds that a reasonable belief that minors are drinking in the home constitutes an "exigent circumstance" permitting warrantless entry.)

In the "No Good Deed Goes Unpunished" category is the case of Crosby v. Comcast (2007 WL 1053381).

Word to the Wise

The late summer lull in appellate decisions is upon us, but in the absence of particularly interesting decisions on issues of Georgia or federal law, it's worth reminding the Georgia appellate lawyers out there of the importance of making sure that all of the documents that bear on your appeal are included in the record on appeal.

In Hattaway v. Conner, 2006 WL 2255830, 06 FCDR 2583 (Aug. 8, 2006), a negligent misrepresentation action based on the defendant insurance agent's allegedly faulty advice to an insured on responding to questions on an insurance application, the Georgia Court of Appeals affirmed a grant of summary judgment for the defendant. At issue in the case was whether the language on the insurance application clearly sought information about previous partial losses in addition to complete losses -- the insured was later denied coverage for a loss because he stated, based on what the plaintiff contended was the defendant's faulty advice, that he had no prior losses, when in fact he'd previously suffered a partial loss. The defendant argued that the application clearly called for information about partial losses, and the plaintiff had a duty to read the application and the responses recorded on it.

The Georgia Court of Appeals affirmed the grant of summary judgment -- but not because the trial court's evaluation of the record was necessarily correct. Rather, the record on appeal did not contain the insurance application at issue. Where the proof necessary to the decision is omitted from the record, Georgia law requires the reviewing court to "assume the judgment below was correct and affirm."

Moral of the story: Mistakes do happen when the record is compiled and transmitted. Check the appellate record as it is received in the Court of Appeals to make sure the documents you need are contained in it; if they're not, promptly move to supplement the record before the case comes to decision. See OCGA sec. 5-6-41(f).

Georgia Court of Appeals: Long Arm Statute Reaches Large Internet Transactions

    The Georgia Court of Appeals made headlines on May 23 when it ruled that a Georgia court has jurisdiction over a foreign company that sold and delivered a $31,000 BMW to a Georgia resident through Ebay, an internet auction website.  Judge Phipps, writing for the court in Aero Toy Store LLC v. Grieves, #A06A0741, held that Gordon Grieves' Georgia grievance was proper because Ebay is an "interactive website," the transaction was "worth thousands of dollars," and the transaction "involv[ed] shipment of an automobile to be operated in Georgia."  Gone are the days when telephone, mail, and Internet contacts are insufficient in Georgia to confer jurisdiction over a non-resident.  At least under Section 1 of the Georgia Long-Arm statute (authorizing jurisdiction over a foreign company that "transacts any business" within the state so long as the claim arises out of those business transactions), foreign companies may be haled into Georgia's courts even if they've limited their contacts with Georgia residents to interstate phone, fax, and internet communications.

    Aero is a much-welcomed (or, for out-of-state defendants, much-feared) application of the Georgia Supreme Court's 2005 decision in Innovative Clinical & Consulting Services v. First National Bank of Ames, Iowa, which held that Section 1 of Georgia's Long-Arm Statute applies to the maximum extent allowed by the Due Process clause of the U.S. Constitution.  Innovative Clinical held that internet, mail, and fax communications should be considered in Georgia's minimum-contacts analysis, effectively overruling a long line of cases holding the opposite.  The result in Mayacamas Corp. v. Gulfstream Aerospace Corp., for example, which declined jurisdiction over a dispute arising out of a Georgia resident's purchase of a private jet after a series of telephone and fax communications and partial performance of the purchase agreement, would likely be different today.

    While Aero provides fertile ground for Georgia consumers to bring claims for interstate transactions gone awry, it left some questions unanswered.  Aero emphasized the high value of the transaction at issue, for example.  Will a court entertain a significantly less valuable claim?

    Aero also emphasized that that the defendant itself delivered the good (a fact which the defendant has apparently disputed after the appeal).  Can companies avoid Georgia's long arm by requiring the purchaser to arrange for delivery?  What if they outsource delivery?