McMILLIAN , Judge . In Phillips v. Harmon, 297 Ga. 386 , 774 S.E.2d 596 (2015), the Supreme Court affirmed in part and reversed in part the judgment of this Court in Phillips v. Harmon, 328 Ga.App. 686, 760 S.E.2d 235 (2014). Accordingly, we vacate Division 2 of our judgment, and the opinion of the Supreme Court is adopted as the opinion of this Court in its place. The judgment of the trial court is accordingly reversed, and the trial court is directed upon remittitur to conduct...
ELLINGTON , Presiding Judge . In Kautz v. Powell, 297 Ga. 283 , 773 S.E.2d 690 (2015), the Supreme Court of Georgia reversed this Court's opinion in Kautz v. Powell, 326 Ga.App. 816 , 755 S.E.2d 330 (2014). We therefore vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and reverse the trial court's judgment. Judgment reversed. ANDREWS, P.J., BARNES, P.J., PHIPPS, P.J., and MILLER, BRANCH, and McMILLIAN, JJ., concur.
BARNES , Presiding Judge . Rudy Robles, individually and as surviving spouse to Iselda Moreno and as administrator of the estate of Iselda Moreno (collectively, "Robles"), filed this suit against Patricia Yugueros, M.D., and her practice group, Artisan Plastic Surgery, LLC (Artisan), alleging that Dr. Yugueros committed medical malpractice during the post-operative care of Moreno, who died from complications after surgery. Robles appeals from the jury's verdict and judgment in favor of...
McFADDEN , Judge . A jury found Goldstein, Garber & Salama, LLC ("GGS"), a dental practice, liable to J.B. on the theory that GGS's negligence resulted in her being sexually assaulted by Certified Registered Nurse Anesthetist Paul Serdula while she was under anesthesia at GGS's office, and the trial court entered judgment on that verdict. On appeal, GGS contends (1) that the trial court erred in denying its motion for directed verdict because J.B. did not establish that GGS was liable under...
DOYLE , Chief Judge . This case arises out of the mislabeling of the remains of a stillborn baby, resulting in the funeral and burial of the wrong child. The trial court initially denied summary judgment to the defendant hospital after concluding that under the choice-of-law rule of lex loci delicti, Alabama law would govern the emotional distress claims brought by the plaintiff mother, who first learned of the mishandled remains when contacted at her home in Alabama. The trial court later...
DILLARD , Judge . In Case No. A15A0828, Six Flags Over Georgia II, L.P. ("Six Flags") appeals a jury verdict in favor of Joshua Martin, who sued Six Flags under a premises-liability theory after sustaining serious injuries when he was viciously attacked by gang members at a nearby bus stop that he used to access its park. On appeal, Six Flags argues that the jury's verdict must be reversed because the attack on Martin occurred outside of its "premises and approaches" as defined in OCGA 51-...
BRANCH , Judge . Charles Jordan Hawkins and Jacob Nathaniel Hawkins, residents of South Carolina, filed suit in Fulton County against James A. Blair, III, a resident of South Carolina and an attorney with Nexsen Pruet, LLC, which is located in South Carolina, alleging that Blair illegally transferred money from their personal bank accounts at Morgan Stanley in Atlanta to Nexsen Pruet's bank accounts in Greenville, South Carolina, allegedly for legal fees arising out of a previous action....
BRANCH , Judge . The Higbee Company and its codefendants appeal a punitive damages judgment entered against them following a jury verdict for plaintiff Damien Solomon in this false imprisonment and malicious prosecution case. The appellants contend that punitive damages were not allowed under OCGA 51-12-6 because Solomon's entire injury was to his peace, happiness, or feelings. We agree with the trial court that the appellants waived this challenge, and we affirm. Solomon was arrested...
PHIPPS , Presiding Judge . These cases, which we have consolidated for the purposes of deciding the appeals, concern claims related to the prescription drug metoclopramide (brand name "Reglan"). Angela Dement and Dorothy Tanner allegedly developed a neurological condition, tardive dyskinesia, after taking generic versions of the drug; Dement used the drug from February 2008 to June 2009, and Tanner used it from August 2004 to December 2004. Each of the plaintiffs filed an action against...
BARNES , Presiding Judge . Darrin Ward appeals from the temporary order of the trial court that, among other things, domesticated an Indiana custody order, modified custody of his son, and held him in contempt of an earlier order to return his child to Georgia. Ward contends multiple errors on appeal, and following our review, we affirm the trial court's order. Ward and Cheryl Smith were divorced in 2006 while living in Indiana and had one son together, P.W. The Indiana court entered an...
BRANCH , Judge . Plaintiff Trecia Neal filed this action seeking class certification on behalf of Gold and Silver members of the State Health Benefits Plan ("SHBP") for 2014. Neal's complaint alleges that the Georgia Department of Community Health ("the Department") breached its contract with these members when it retroactively eliminated the three tiers of coinsurance for healthcare services and instead combined them into a single schedule of co-payments, adding co-payments for pharmacy...
MILLER , JUDGE . In this case arising from a police chase around the Georgia Capitol, Allan Loehle and Nicole Livieratos, individually and as the personal representative of Zach Loehle, a minor (collectively, "Loehle"), sought interlocutory review of the trial court's orders granting the Georgia Department of Public Safety's ("DPS") motion to dismiss on sovereign immunity grounds and denying Loehle's spoliation motion against the City of Atlanta ("City"). Because we find that DPS did not...
BRANCH , Judge . In 2010, The Best Jewelry Manufacturing Company, Inc. ("plaintiff") filed this class action challenging Fulton County State Court's adoption of an electronic filing system administered by Reed Elsevier Inc., d/b/a Lexis/Nexis Courtlink ("Lexis"). In its second amended complaint, 1 filed in February 2014, plaintiff alleged inter alia that in 2008, some years after the adoption of e-filing, Lexis conspired with Fulton County to collect illegal fees and barred plaintiff from...
ELLINGTON , Presiding Judge . Following our grant of her application for interlocutory appeal, Tushanna Cole appeals from the trial court's order overruling her special demurrer to an indictment charging her with Medicaid fraud and theft by taking. Cole contends that the indictment's identification of 44 individuals identified therein by their initials was improper, and that the range of dates the crimes were committed, as set forth in the indictment, is unreasonably broad. For the reasons...
BARNES , Presiding Judge . Alex Robinson appeals from the trial court's order granting summary judgment to the Metropolitan Atlanta Rapid Transit Authority ("MARTA"), Officer Paris Swinson, Officer V. Samuel, and Officer J. Boggs. (hereinafter, collectively "MARTA.") Robinson filed the underlying complaint against MARTA and the officers for personal injury caused by the officers alleged use of excessive force, MARTA's failure to properly train and supervise the officers, and false arrest....
RAY , Judge . In 2010, Cellchem International, LLC, sued husband-and-wife Dale and Helen Lyman, both of whom had worked for Cellchem in various capacities, and also sued Tritec International, Inc., and Shekoy Chemicals US, Inc. (collectively "Appellants") alleging, inter alia, claims for computer trespass and computer theft, breach of fiduciary duty, and tortious interference with business relations. In 2014, a jury awarded nearly $7.4 million to Cellchem, divided variously among the...
DOYLE , Chief Judge . Olympus Media, LLC, and Olympus officer Ray Moyers (collectively "Olympus") filed a declaratory judgment action against the City of Dunwoody seeking to challenge the City's authority to deny it a permit for an existing billboard and to clarify Olympus's rights under sign permits issued pursuant to a consent order with DeKalb County. The City counterclaimed, challenging the lawful existence of the billboard. Following discovery, the parties each moved for summary...
McFADDEN , Judge . The City of Albany Fire Department terminated the employment of firefighter Joseph Pait after he pled guilty to two counts of theft. Pait appealed the termination to the city manager, who held an evidentiary hearing and affirmed the decision. Pait filed a petition for writ of certiorari in the superior court against the city, fire chief James Arrowood and deputy fire chief James Carswell. In the petition, Pait sought review of the city manager's termination decision and...
ELLINGTON , Presiding Judge . Robert G. Mikell, in his capacity as Commissioner of the Department of Driver Services (the "Department"), following our grant of his application for discretionary appeal, appeals from the trial court's order reversing the Department's decision to deny, as untimely, Jayson Hortenstine's request for an administrative license suspension hearing pursuant to OCGA 40-5-67.1(g). We agree with Mikell that the actions of Hortenstine's attorney in failing to mail a...
BOGGS , Judge . This appeal involves the interpretation of OCGA 14-11-601.1(b)(4)(D), a portion of the Code section governing the cessation of membership in a limited liability company. The trial court granted partial summary judgment in favor of appellees, holding that appellant Sharon Crumpton ceased to be a member of two limited liability companies by filing a petition seeking dissolution of those companies. While the statute is not a model of clarity, construing the relevant language...
