When Is a Published Decision Not Binding Precedent?

A practitioner might expect that a published decision appearing in the official reports of the Georgia Court of Appeals is binding precedent.  However, Georgia practice contains a wrinkle that affects the ability of a practitioner to cite a published decision as precedent.  It may be a wrinkle to which practitioners need to pay closer attention.

The Georgia Court of Appeals has 12 judges, and an overwhelming majority of cases are decided by panels consisting of three judges.  Under Rule 33(a) of the Georgia Court of Appeals, a decision by a three-judge panel is “physical precedent only” with respect to any part of the opinion in which there is concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said.  If a published decision is “physical precedent,” that decision is not binding on a subsequent panel of the Georgia Court of Appeals in another case, although they may be persuasive authority.  See Bituminous Ins. Co. v. Coker¸ 314 Ga. App. 30, 36 n.4 (2012); Fulton County Bd. of Tax Assessors v. National Biscuit Co., 296 Ga. App. 884, 886-88 (2009).  Often, a concurrence in judgment only is not accompanied by an explanatory opinion.  Therefore, a practitioner can determine that the published decision is “physical precedent” only by looking at the very end of the opinion and noting whether or not one or more of the judges concurred in the judgment “only.” 

This wrinkle in Georgia practice may be becoming more important.  A review of opinions appearing in FASTCASE in the last few years shows that in each January court term (January through March) of the Georgia Court of Appeals since 2009, the Court issued the following numbers of three-judge decisions in which one or more of the judges concurred in the judgment only as to some part of the disposition of the case. 

Year                            Number

2009                            3

2010                            3

2011                            10

2012                            16

2013                            32

The causes of the increase in the number of three-judge decisions that include a concurrence in judgment only are unclear.  However, these numbers identify a trend to which careful practitioners should pay attention.  Before you cite a decision of the Georgia Court of Appeals, in addition to checking the cite and making sure that case has not been overruled, you also should note whether or not a judge concurred in the “judgment only.”

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