March 28, 2014, was the last date on which the Georgia Court of Appeals could issue opinions for cases submitted during the September Term of Court. As is typical, the opinions issued at the end of term involved some of the more complicated and interesting matters decided by the Georgia Court of Appeals.
In Greenstein v. Bank of the Ozarks, Case No. A13A1790 (decided March 28, 2014), the divided court reversed a summary judgment granted in favor of a bank in a case in which the bank sought to enforce several promissory notes and guarantees. The primary issue on appeal was whether or not the plaintiff bank had established that it was the successor-in-interest to the bank that originally had entered into the notes and guarantees at issue. The plaintiff bank submitted an affidavit of an employee. Although the affiant recited that the affidavit was based on his personal knowledge, a majority of the Court found that some of the factual statements in the affidavit intended to establish that the plaintiff bank was the successor-in-interest were insufficiently supported because some of the transactions that resulted in the plaintiff bank holding the notes could not have been based upon the affiant’s personal knowledge and records documenting some of the transfers were not attached to the affidavit. Several judges dissented, contending that the affiant’s statements were sufficient to pierce the pleadings and, on summary judgment, place the burden on the opposing party to present evidence to create a genuine issue of material fact. The dissenters asserted that the employee could testify to the transfers by relying on records in the plaintiff bank’s custody.
This decision will be significant to any party attempting to enforce notes or guarantees to which it has succeeded. It places a heightened burden on parties seeking to enforce agreements to document carefully for a court the “chain of title.”
Lavelle v. Laboratory Corp. of America, Case No. A13A1722 (decided March 28, 2014), involved the admission of expert testimony. The trial court had excluded the testimony of an expert on the issues of cytotechnology and the interpretation of slides. The Court of Appeals reversed the decision of the trial court finding that the trial court had incorrectly analyzed the expert testimony. However, two dissenting judges believed that the Court of Appeals had not shown sufficient deference to the findings of the trial court.
Only a few years ago, the Georgia Legislature introduced into Georgia law the standard for expert testimony that the United States Supreme Court adopted in Daubert v. Merrill Dow Pharmaceuticals, 113 S. Ct. 2786 (1993). Since then, Georgia courts have wrestled with expert witness testimony issues under that standard. This likely will continue to be an unsettled area of Georgia practice for some time.
The Lavelle opinions is available at
The Greenstein opinion is available at
For more information on expert testimony, contact your Appellate Counsel at Smith, Gambrell & Russell.