ANDREWS , Presiding Judge . In Rodriguez v. State, 295 Ga. 362 , 761 S.E.2d 19 (2014), the Supreme Court concluded that, because this Court was equally divided on the judgment, the case should have been immediately transferred to the Supreme Court pursuant to the Equal Division clause (Ga. Const. of 1983, Art. VI, Sec. V, Par. V.), and, therefore, the decision in Rodriguez v. State, 321 Ga.App. 619 , 746 S.E.2d 366 (2013), should not have been rendered. The Supreme Court vacated...
BRANCH , Judge . In November 2010, plaintiff Felicia Smith was showing a male customer some iPods in the Macon Wal-Mart where she was working when another man stole a number of the devices from the case Smith had left open. A few weeks later, Smith's supervisors ushered her into a back office at the store, showed her a videotape of the incident, and accused her of acting in concert with the thieves. Smith denied these accusations. After Wal-Mart referred the matter to the Macon police,...
ELLINGTON , Presiding Judge . Diane Eldredge Davis and Jesse Randolph Eldredge (collectively, "the Eldredges"), as the survivors of their father, Jesse Belton Eldredge, brought this medical malpractice wrongful death action in the State Court of DeKalb County against Oladayo Osinuga, M.D., and against his employer, East Point Primary Care Center, P.C. (collectively "Dr. Osinuga"). When the trial court called the case for trial, the Eldredges applied for a continuance on the basis that,...
RAY , Judge . Legacy Academy, a franchisor of childcare centers, sued one of its franchisees, JLK, Inc., alleging breach of contract. The trial court granted summary judgment to Legacy, 1 reserving for trial its decision on the amount of damages due, if any. After a bench trial, the lower court entered a final judgment in favor of Legacy for $9,729 in royalty fees for the months of November and December 2010, in addition to pre-and post-judgment interest and attorney fees. Legacy...
BARNES , Presiding Judge . This medical malpractice case addresses the applicability of the emergency room (ER) statute, OCGA 51-1-29.5, which requires a plaintiff to show clear and convincing evidence of gross negligence to recover for claims arising out of the provision of emergency medical care. The trial court in this case granted partial summary judgment to the plaintiff, finding that the ER statute did not apply because the patient had been stable and non-urgent when seen and...
BRANCH , Judge . Under OCGA 44-14-80, title to real property conveyed by a security deed that has not been cancelled or foreclosed upon after a certain period of time reverts to the grantor as a matter of law. The statute sets the default time period at seven years starting, depending on the circumstances, from either the maturity of the debt or from the date of the original conveyance. Id. The parties to the security deed are allowed, however, to extend the time to 20 years by so...
DILLARD , Judge . Garden City, Georgia (the "City") appeals the trial court's denial of its motion for summary judgment in a negligence action brought by Ann J. Herrera, as conservator of adult ward Lisa Nicolle Muse. On appeal, the City argues that the trial court erred in (1) finding that it could be held liable because the requirements of the borrowed-servant rule were not satisfied, and (2) failing to apply the rules of contract construction in making that determination. For the reasons...
DOYLE , Presiding Judge . Casey Schaff was injured when a guy wire came loose and struck him while he was working on a utility pole installed, owned, and maintained by Snapping Shoals Electric Membership Corporation ("SSEMC"). Casey and his wife, Sherri Schaff, sued SSEMC, asserting claims for negligence, negligence per se, and loss of consortium. SSEMC moved for summary judgment, and the trial court granted it. The Schaffs appeal that ruling, and we affirm for the following reasons. We...
McFADDEN , Judge . This appeal challenges the grant of summary judgment to a bank on its claims for breach of two promissory notes and a guaranty. Because the movant bank failed to meet its burden of showing that there exists no genuine issue of material fact that it is the current holder of the notes and guaranty, we reverse. "Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a trial court's...
MILLER , Judge . These consolidated appeals arise out of the transfer of assets from Roger F. Kahn to RK Trust, of which Kahn is the lifetime beneficiary. Kahn's judgment creditors filed suit against Kahn and RK Trust, alleging, in part, that the asset transfers constituted a fraudulent conveyance. RK Trust settled the suit and sold a cattle ranch to fund the settlement. Thereafter, Kahn, in his individual capacity, and RK Trust's trustees (collectively, the "Kahn Plantiffs") sued Daniel...
BRANCH , Judge . In January 2011, after a winter storm, plaintiff Nancy Davidson fell outside a Dollar Tree store in a Macon shopping center owned by three corporate entities (collectively, "Rivergate"). Davidson and her husband sued Rivergate; its property management company; Dollar Tree; the Dollar Tree manager; and Meticulously Clean Sweepers, LLC ("MCS"), an independent contractor which had applied a de-icing mixture to the area on the night before Davidson fell. After all defendants...
McFADDEN , Judge . This appeal is from a grant of summary judgment to the funeral home defendants in a case arising out their failure to insure that the cremated remains of appellant's decedent were in the urn that was to contain them. Appellant's claims include breach of contract, interference with burial rights, invasion of privacy, intentional infliction of emotional distress and trespass. The grant of summary judgment on the breach of contract claim was premised on the trial court's...
ANDREWS , Presiding Judge . Charles, Suzette, and Thomas Morrison sued Steve Kicklighter to recover property damage allegedly caused when Kicklighter negligently backed his vehicle into the Morrisons' parked truck. The Morrisons sought to recover the cost of repairing damage to the truck, the diminished value of the repaired truck, and the cost of a rental vehicle during the repairs. On the basis that these losses were covered by a liability insurance policy on Kicklighter's vehicle issued...
MILLER , Judge . Lara Donovan was injured in an automobile accident involving a vehicle driven by Jonathon McMillon. Donovan sued McMillon and three underinsured motorist ("UM") carriers, including State Farm, her mother's insurance carrier. 1 McMillon's insurance carrier, Progressive Insurance Company, paid Donovan the $25,000 limits of his liability insurance policy. State Farm subsequently moved for summary judgment, contending that it is entitled to a set-off for the $25,000 paid by...
MILLER , Judge . Richard P. Heath sued Color Imprints USA, Inc., and Michael and John Saylor (collectively "the Defendants") seeking to recover over $25,000 in past due payments for accounting and bookkeeping services that Heath allegedly rendered to Color Imprints d/b/a 1 Stop Creative Promotional Solutions ("Color Imprints"). The parties filed cross-motions for summary judgment, and the trial court granted the Defendants' motion as to Heath's claim. Heath appeals, contending that the...
DOYLE , Presiding Judge . Jane Thomas, as the Presiding Elder of the Sixth Episcopal District Georgia of the Christian Methodist Episcopal Church ("the CME"), filed a petition for declaratory judgment and an injunction against Beulah Johnson, Marion Shannon, Jr., Thomas Howard, and Robert Hunt, seeking use and control of the Bethel Christian Methodist Church ("Bethel Church"). Following an evidentiary hearing, the trial court entered final judgment in favor of the defendants. The CME...
MILLER , Judge . Alikina Bohannon, individually and on behalf of her deceased son, Xavier Bohannon, sued Dr. Mohammad Tomeh, South Fulton Medical Center ("South Fulton"), and numerous other medical providers, alleging that the hospital and its staff committed malpractice prior to and during Bohannon's labor and delivery, resulting in Xavier's death shortly after he was born prematurely. Dr. Tomeh, a pediatrician, filed a motion for summary judgment, arguing that no doctor-patient...
RAY , Judge . Glenn Smith sued Eugene S. Rodillo, M.D., a urologist, claiming that Rodillo was professionally negligent in failing to examine Smith after he presented at Elbert Memorial Hospital with symptoms which warranted examination by a urologist, and that he suffered damages as a result. Before trial, the trial court granted Rodillo's motion to exclude certain testimony by Smith's urology expert regarding the causation and permanence of Smith's alleged erectile dysfunction. The trial...
BRANCH , Judge . North Druid Development, LLC and North Druid Development II, LLC (collectively "NDD") filed suit in Cobb County Superior Court against the surveying firm of Post, Buckley, Schuh, & Jernigan, Inc. ("Post, Buckley"), asserting a claim for professional negligence. When NDD failed to respond to Post, Buckley's initial discovery requests, the surveying firm moved for the sanction of dismissal with prejudice or, in the alternative, an order compelling discovery. NDD did not file...
DILLARD , Judge . Darby Norman ("Darby") appeals the trial court's order finding her in contempt of a settlement agreement that she entered into with her ex-husband, Toby Norman ("Toby"), as part of the parties' divorce decree, and denying her motion to strike the overnightguest provision in that agreement. She contends on appeal that the trial court erred by (1) enforcing the overnight-guest provision when it violates public policy, and (2) misinterpreting binding precedent. For the...
