Keith R. Blackwell

The case involved a Georgia mother's appeal of a juvenile court order terminating her parental rights to two young sons, after the Department of Family and Children Services took custody due to the parents' substance abuse, repeated drug-related arrests, unstable housing, unemployment, and failure to comply with reunification plans. The Court of Appeals of Georgia affirmed the termination. It held that clear and convincing evidence supported findings that the children were deprived, the deprivation was likely to continue given the mother's ongoing drug issues, incomplete rehabilitation, incarcerations, and lack of progress on required steps like stable employment and housing, and that returning the children would likely cause harm due to their need for permanency. The boys had been in foster care for most of their lives, were thriving there, and had no meaningful ongoing relationship with the mother.

family law

The case concerned whether neighborhood covenants in the Blackberry Mountain subdivision prohibited homeowners Ricardo and Tiffany Grave de Peralta from renting their home for short periods of a few days. The homeowners' association sued for a declaratory judgment and injunction, arguing that the fourth sentence of Section 6.01 required owners to designate in writing all persons entitled to use the property and limited such designations to no more than three changes per year without association consent, which would bar rentals shorter than about four months. The trial court denied the homeowners' motion for summary judgment, but the Court of Appeals reversed. It held that the designation requirement applies only to persons using the property "as Owners" under the third sentence of the section (which addresses parcels owned by entities or more than twelve individuals) and does not extend to short-term renters, who are treated separately as guests; any ambiguity in the covenants must be resolved in favor of the property owner's right to use the land for lawful purposes.

property

The case arose after Speedway Motorsports discovered that its consultant, David Blihovde, had defrauded it of more than $5 million between 2006 and 2010; Speedway then sued multiple recipients of the funds, including Pinnacle Bank, asserting claims for unjust enrichment, fraudulent transfers under the Uniform Fraudulent Transfers Act, constructive trusts, and equitable liens tied to a residence Blihovde bought with the proceeds and on which the Bank held and later foreclosed a security interest. The trial court dismissed the claims against the Bank and several other defendants for failure to state a claim. On appeal, the Georgia Court of Appeals affirmed the dismissals in part and reversed in part, applying the standard that a complaint may be dismissed only if its allegations show with certainty that no set of provable facts could entitle the plaintiff to relief. The court held that Speedway’s allegations of the Bank’s constructive knowledge and lack of good faith were sufficient to survive dismissal on some claims, while other claims failed to overcome the Bank’s status as a bona fide purchaser for value.

business & regulatorypropertyproceduretorts & liability

In this case, Wellons, Inc. contracted with Langboard, Inc. to design and install a custom energy system for a manufacturing plant, and Langboard sued Wellons for breach of both contracts after the system allegedly failed to meet performance and emissions requirements. A jury awarded Langboard more than $8.4 million in damages, and Wellons appealed, arguing that the design-contract claim was barred by a contractual one-year limitations period, that the evidence was insufficient to support damages on the installation contract, and that the trial court improperly admitted certain speculative evidence. The Georgia Court of Appeals affirmed the judgment, holding that the limitations defense did not entitle Wellons to summary judgment because the record did not establish that Langboard’s claim had accrued more than a year before suit, that the damages award was supported by the evidence presented at trial, and that the challenged evidence was admissible. The court therefore upheld the jury’s verdict in full.

business & regulatoryprocedure

In Reeves v. Upson Regional Medical Center, a lawyer representing medical malpractice plaintiffs issued a subpoena for documents to a nonparty hospital, which moved to quash it as unreasonable and oppressive; after partial compliance and withdrawal of the subpoena, the trial court awarded the hospital over $23,000 in attorney fees and expenses under OCGA § 9-15-14(b), relying on the 2007 decision in Slone v. Myers. The Court of Appeals reversed, holding that the statute permits such awards only to parties and does not authorize awards to nonparties. The court overruled Slone as inconsistent with the statute’s plain language limiting recovery to “a party,” applied strict construction to this provision in derogation of the common law, and rejected policy arguments for expanding the remedy, noting that any broader relief would require legislative action. The opinion also confirmed appellate jurisdiction after addressing timeliness and filing issues.

proceduretorts & liabilityhealthcare

Lewis Shane Bibb was convicted by an Oconee County jury of four counts of aggravated child molestation and two counts of child molestation involving a preteen victim. He appealed, arguing that the evidence was insufficient to support all four aggravated molestation convictions, that the trial court improperly admitted similar-transaction evidence, and that he received ineffective assistance of counsel. The Court of Appeals affirmed the convictions in full. It held that the victim’s testimony describing Bibb’s repeated routine of sexual acts and the frequency of incidents during her time in Oconee County allowed a rational jury to find four qualifying acts. The court further ruled that evidence of Bibb’s prior sexual touching of the victim’s sister, his relationships with two teenage girls, and his collection of photographs of underage girls was properly admitted because it was offered for a proper purpose, sufficiently similar to the charged conduct, and not substantially more prejudicial than probative, especially under the liberal standard applied to sexual-offense cases.

criminal law

In State v. Brown, Xavios Brown was arrested in June 2002 on charges of aggravated child molestation and false imprisonment but was not indicted until 2006 or arraigned until 2008, leading him to move in December 2008 to dismiss the indictment on speedy-trial grounds after more than six years had passed. The trial court granted the motion, finding the nearly nine-year delay presumptively and actually prejudicial, attributable to official negligence, and that Brown had timely asserted his right. On the State’s appeal, the Court of Appeals affirmed, applying the four-factor test from Barker v. Wingo and Doggett v. United States. It held that the extraordinary length of the delay, the State’s negligence as the cause, Brown’s assertion of the right, and the resulting presumptive prejudice supported dismissal, even though the trial court’s finding of actual prejudice from unavailable alibi records lacked record support. The appellate court concluded this single error did not amount to an abuse of discretion.

criminal lawprocedure

In Jones v. Housing Authority of Fulton County, Jonathan Jones, the former CEO of the Authority, sued for breach of his employment agreement after the Authority terminated him for cause in 2009, alleging the termination was actually without cause and that he was owed unpaid compensation and benefits. The trial court granted summary judgment to the Authority, denied Jones’s motion for partial summary judgment, and awarded attorney fees; Jones appealed. The Court of Appeals affirmed, holding that no genuine issues of material fact existed because Jones, who was responsible for ensuring compliance with HUD regulations on the use of federal funds for voucher programs and housing projects, failed to object to or report the improper diversion of restricted funds despite being notified, executed certifications guaranteeing proper use, and admitted the resulting violations caused a financial crisis for the Authority—constituting a materially harmful act under the agreement that permitted termination for cause with no further compensation owed. The court also found certain deferred compensation provisions in the agreement unenforceable due to lack of evidence on amounts.

labor & employmentbusiness & regulatoryprocedure

Steven Hudson sued the City of Douglas for negligence after he was seriously injured in an assault by Marcus Zachery, alleging that city police officers had failed to protect him despite prior reports of threats and cable tampering by Zachery. The trial court denied the City's motion for summary judgment, but the Court of Appeals reversed. The court explained that a municipality generally has no duty to protect an individual from third-party criminal acts unless the plaintiff proves a special relationship creating a particularized duty, distinct from the duty owed to the public at large. Hudson presented no evidence of such a relationship, as the officers were not present at the scene of the assault—which occurred two days after their last contact—and no imminent harm to an identifiable victim was shown at the relevant time. The City was therefore entitled to judgment as a matter of law.

torts & liability

Gwinnett County condemned 2.38 acres plus an easement from a larger tract owned by Ascot Investment Company and Peoples Bank & Trust to build a public road near Georgia Gwinnett College. A jury awarded Ascot and the Bank more than $3 million in compensation, and the trial court entered judgment on the verdict. The Court of Appeals affirmed, holding that the challenged evidence about the original purchase agreement was relevant to fair market value at the time of taking rather than to pre-taking damages, that the jury instructions correctly limited recovery to direct and consequential damages measured as of the date of taking, and that the trial court did not abuse its discretion in retaining a juror whose English proficiency was adequate for the proceedings.

propertyprocedure

In Contreras v. State, Raymond David Contreras was convicted by a Gwinnett County jury of kidnapping with bodily injury and rape after evidence showed he and another man abducted a 16-year-old victim, took her to another location, and forcibly raped her, with DNA evidence matching Contreras and a medical exam revealing a vaginal laceration. Contreras appealed, arguing that the evidence was insufficient to prove bodily injury during the kidnapping, that the trial court erred in giving an Allen charge to a deadlocked jury, and that his trial counsel provided ineffective assistance by eliciting testimony about his prior convictions. The Georgia Court of Appeals affirmed the convictions, holding that the victim's testimony, the DNA match, and the laceration (which qualified as bodily injury under precedent) allowed a rational jury to find guilt beyond a reasonable doubt. The court further ruled that the Allen charge was not coercive because the trial judge properly instructed jurors not to abandon honest convictions and that counsel's decision to introduce the prior convictions was a reasonable strategic choice that waived any objection to their admission.

criminal lawprocedure

In Hatcher v. State, Edward Hatcher was convicted of sexual exploitation of a child after police obtained his subscriber information from Comcast, used it to secure a search warrant, and found child pornography on his computer; he received a mandatory minimum prison sentence under OCGA § 17-10-6.2. The Court of Appeals affirmed the denial of his motion to suppress the ISP records but vacated the sentence and remanded for resentencing. It held that Hatcher had no reasonable expectation of privacy in information he voluntarily provided to his internet service provider, consistent with U.S. Supreme Court precedent on third-party disclosures and numerous federal circuit decisions. On sentencing, the court concluded that the trial judge had erred in believing it lacked discretion to consider a downward departure, requiring reconsideration under the Georgia Supreme Court’s recent decision in Hedden v. State.

criminal lawprocedure

This case is an appeal by Gibson Construction from a trial court’s award of attorney fees to GAA Acquisitions under OCGA § 9-15-14(a) after GAA prevailed in an earlier summary judgment ruling (affirmed in Gibson I). The underlying dispute concerned whether a lien held by Gibson was extinguished in GAA’s foreclosure on a superior security deed; Gibson argued that an unrecorded agreement modifying the original security deed could not be used to value the secured debt, while GAA maintained that recording was not required for such a modification. The trial court found Gibson’s position so lacking in merit that fees were mandatory. The Court of Appeals reversed, holding that Gibson’s argument—though unsuccessful—raised a question of first impression about the recording statutes, drew arguable support from existing case law and code provisions on deeds and liens, and therefore did not demonstrate a complete absence of any justiciable issue of law.

propertyprocedure

Thomas Lee Ramage was convicted by a Baldwin County jury of aggravated child molestation, child molestation, incest, and cruelty to children. He sought a new trial on the ground that he was denied his constitutional right to be present at critical stages of the proceedings, because the trial judge met privately with the jury multiple times during deliberations—a procedure to which Ramage’s lawyer consented but about which Ramage said he knew nothing until after the verdict. The trial court denied relief on this claim, apparently concluding that the lawyer’s consent alone was sufficient. The Court of Appeals vacated the order and remanded the case, holding that the trial court had applied the wrong legal standard by failing to determine whether Ramage was present when consent was given, had expressly authorized his lawyer to consent, or had later acquiesced in the procedure, as required to establish a valid waiver of the right to be present under the United States and Georgia Constitutions.

criminal lawprocedure

Susan Bradley sued Winn-Dixie for injuries from slipping on a puddle of liquid in one of its stores, claiming the store had constructive knowledge of the hazard because an employee was standing nearby. The trial court found contradictions in Bradley’s deposition testimony about the employee’s position and reaction, applied the Prophecy Corp. rule to construe the testimony against her, concluded there was no evidence of constructive knowledge, and granted summary judgment to Winn-Dixie. The Court of Appeals reversed, holding that Bradley’s statements about the employee’s orientation and ability to see the fall were not contradictory, so the Prophecy rule did not apply. Viewed in the light most favorable to Bradley, the evidence that the employee was only a few feet away and facing the area created a genuine issue of material fact for a jury on whether the store had constructive knowledge.

torts & liability

In Ndlovu v. Pham, a medical malpractice plaintiff sued two physicians for failing to diagnose a spinal fracture and filed expert affidavits with her complaint as required by OCGA § 9-11-9.1(a). The defendants moved to dismiss, citing specific alleged deficiencies in the affidavits (such as the expert’s competence, lack of identified acts or omissions, and use of copies rather than originals), but the trial court dismissed the case on a different ground: that the affidavits addressed only ordinary negligence rather than the gross-negligence standard applicable to emergency care. The Court of Appeals reversed, holding that OCGA § 9-11-9.1(e) permits dismissal only when the motion identifies the affidavit’s inadequacies “with specificity” and the plaintiff then fails to cure them within thirty days. The statute’s plain language, the court reasoned, bars dismissal for an unmentioned deficiency even if the plaintiff arguably had notice of it through other filings or arguments first raised in a reply brief.

procedurehealthcaretorts & liability

In Martin v. Hamilton State Bank, Larry Martin borrowed more than $2.7 million from Bartow County Bank (later succeeded by Hamilton State Bank) under four promissory notes, defaulted by missing required payments, and failed to reach an agreement with the Bank on restructuring the debt after it accelerated the full amount owed. The Bank sued to collect, and Martin appealed the trial court's grant of summary judgment to the Bank, arguing that the Bank breached the implied duty of good faith and fair dealing by declaring a default and refusing to restructure, and that he should have been allowed discovery into the Bank's motives. The Georgia Court of Appeals affirmed the summary judgment, holding that the notes expressly authorized the Bank to declare default for nonpayment, accelerate the debt, and pursue collection remedies without waiving others, and that no implied good-faith obligation can override a party's exercise of rights explicitly granted by the contract. The court further ruled that discovery into the Bank's "motivation" was unnecessary because such motives were immaterial when the contract terms controlled, and it distinguished cases involving insecurity clauses from this nonpayment default.

business & regulatoryprocedure

In Brandt v. State, Ryan Brandt appealed the denial of his motion to suppress evidence seized from a truck during a traffic stop tied to an armed robbery of an Applebee’s restaurant, following a remand for reconsideration under Arizona v. Gant after his initial convictions for robberies and a home invasion. The court affirmed the denial, holding that the search of the truck was reasonable and the evidence admissible. Officers lawfully stopped the vehicle for speeding and loss of control, then developed probable cause to suspect the occupants of the recent robbery based on matching radio descriptions of the truck, the two men, and their direction of travel; after observing furtive movements, they secured the occupants and saw firearms and money bags in plain view inside the cab, which justified their seizure without a warrant. The subsequent impoundment and full search by other officers, along with an eyewitness identification, were upheld as flowing from these lawful steps.

criminal lawprocedureguns

In this case, Robert Duffield sued George Chui for injuries after Chui intentionally punched him in the jaw, with Chui claiming the act was justified to protect a friend. A Fulton County jury returned a defense verdict after the trial court instructed the jury only on negligence principles, despite Duffield having alleged battery and intentional tort claims in his complaint, described the case as involving intentional conduct in the pretrial order, and repeatedly requested battery instructions during the charge conference. The Georgia Court of Appeals reversed the judgment for Chui and remanded for a new trial, holding that a trial court must charge the jury on every controlling legal theory raised by the pleadings and evidence, including the recognized tort of battery. The court reasoned that Duffield was entitled to such an instruction regardless of whether his specific requested charges were perfectly worded, and that charging only on negligence was harmful error.

proceduretorts & liability

In Brown v. State, Prince Christopher Brown appealed his Chatham County jury convictions for armed robbery, aggravated assault, and possession of a firearm during a felony, raising claims of insufficient evidence, erroneous admission of hearsay, denial of a mistrial, prosecutorial misconduct, an incorrect jury charge on the burden of proof, and failure to merge the armed robbery and aggravated assault convictions. The Georgia Court of Appeals affirmed the convictions in full. It held the evidence sufficient because the victim's testimony identifying Brown as the attacker, when viewed in the light most favorable to the verdict, permitted a rational jury to find guilt beyond a reasonable doubt, with credibility determinations left to the jury. The court further concluded that any hearsay was harmless, the brief detective-juror exchange created no prejudice requiring a mistrial, and merger was not required because the offenses involved distinct elements under the required evidence test.

criminal lawgunsprocedure