Georgia Court of Appeals’ November Term Ends

            November 30 marked the end of the September Term of the Georgia Court of Appeals.  The end of the Court’s terms often follows an interesting dynamic.  However, that dynamic can impact the usefulness of the Court’s decisions.

           The Georgia Court of Appeals has three terms of court:  January, April and September.  The Georgia Court of Appeals is obligated by the Georgia Constitution to decide an appeal by the end of the term after it is placed on the docket for hearing.  Therefore, a case docketed for hearing in the April term must be decided by the end of the September term.  The last few weeks of a term is known as the “distress” period in which the Court decides all of the pending cases that must be decided to satisfy the “two-term” rule.  Frequently, the decisions at the end of the term involve more complicated cases, involve dissents, or are cases in which the Court is reconsidering its precedents.

             On the last day of the recent September term, the Georgia Court of Appeals issued a number of decisions that involved dissents.  In the Interest of S.M.B., Case No. A12A1275; Kent v. Mitchell, Case No. A12A1144; and Cox v. Mayan Lagoon Estates, Ltd., Case No. A12A1062.  Johnson v. Omondi, Case No. A12A1347 (decided November 27, 2012), involved a dissent in which the majority held that the plaintiff had failed to produce the quantum of evidence needed to survive the defendants’ motion for summary judgment on a claim of gross negligence under the Georgia emergency medical care statute, O.C.G.A. § 51-1-29.5.  The dissenters believed that the plaintiff had produced sufficient evidence to survive summary judgment.  Although there were dissents in these cases, the majority opinions nevertheless are citable as precedents.

             The “two term” rule produced an interesting impact on the resolution of Nalley v. Langdale, Case No. A12A1602 (decided November 30, 2012).  That case was a complicated trust dispute involving appeals and cross-appeals.  Judge Dillard concurred “dubitante” in the judgment only.  That means he did not concur in the reasoning of the majority opinion and, therefore, that opinion cannot be cited as precedent in other cases.  Judge Dillard offered the following:

 “I concur because I cannot say with confidence that my colleagues on the panel are incorrect in the manner they have chosen to resolve the issues before us.  But I do so with serious doubts.  And if I were deciding this case alone, my reasoning and conclusions might differ from the majority’s in several material respects.  That said, I am satisfied that my colleagues have carefully and seriously studied this case.  Chief Judge Ellington has penned a thoughtful opinion in which Presiding Judge Phipps has fully concurred.  I commend them both for the amount of time and effort they have exerted in resolving this difficult and important case.  Unfortunately, our constitutional duty to resolve this appeal today (within two terms of docketing) precludes me from engaging in the type of extended study necessary to achieve a high degree of confidence that my experienced, able colleagues are right.”

Efficiency has its price.

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