IN THE SUPREME COURT OF THE
STATE OF GEORGIA
KAREN H. PFEIFFER,
Appellant,
v.
GEORGIA DEPARTMENT OF
TRANSPORTATION

Appellee.
Case No. S01G1656

BRIEF OF GEORGIA TRIAL LAWYERS ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF APPELLANT'S MOTION FOR RECONSIDERATION

Statement of Interest of Amicus Curiae. The Georgia Trial Lawyers Association, comprised of over 2,000 members of the State Bar of Georgia, is committed to the preservation of the jury system.

SUMMARY OF THE ARGUMENT

This amicus respectfully submits that the majority erred by excluding from appellate review of the grant of summary judgment any legal authorities not cited by the appellant to the trial court. The majority opinion conflicts irreconcilably with American Central(1) and Dental One(2). All three use the word "arguments" in stating their holdings, but American Central and Dental One hold that a party appealing the grant of summary judgment may assert any argument to show that the movant failed to meet its burden under OCGA § 9-11-56 even if the argument was not raised in the trial court, and the majority now holds directly contra. The majority should acknowledge the direct conflict and decide whether the policy reasons announced by the majority supersede stare decisis and the statutory reasons that were determinative in the earlier cases. This amicus will show that the policy reasons announced here fall far short of compelling a change of the law.

ARGUMENT AND CITATION OF AUTHORITY

1. Dental One and American Central truly permit new legal arguments to be raised on appeal in order to show that summary judgment is not required as a matter of law.

The majority opinion claims to be consistent with Dental One, and it simply ignores American Central, but both of those unanimous decisions stand for the proposition that a party opposing a motion for summary judgment may (and in both cases did) assert "new issues on appeal" that show that the requirements of OCGA § 9-11-56 had not been satisfied.

In Dental One, which was a suit for rent between the assignee of a landlord and the tenant, the issues at the trial court level were whether the rent claim was discharged in bankruptcy and whether the assignment was too ambiguous to cover this claim. Dental One Assoc., Inc. v. JKR Realty Assoc., Inc., 228 Ga. App. 307, 308 (2) (1997). On appeal, the tenant added a defense that an Order of Confirmation from the Bankruptcy Court was a condition precedent to the validity of the assignment. Id. The Court of Appeals refused to consider that point, id., but this Court held that the refusal was error because the issue went to whether the moving party made a prima facie case of entitlement to summary judgment. It held:

[T]he non-moving party is entitled to advance all arguments without regard to whether they were raised by way of objections below.(3)

269 Ga. at 617 (emphasis added).

In American Central, in which an insurer that paid a fire loss claim to a mortgage company tried to enforce an assignment from the mortgage company against the property owner for defaulting on the mortgage, the owner claimed in the trial court that the insurer had a duty to pay the mortgage company without taking an assignment. Lee v. American Central Ins. Co., 243 Ga. App. 759, 761 (1)(b) (2000). On appeal, the owner sought to add a defense that there was no proper consideration for the assignment. Id., (1)(a). The Court of Appeals refused to consider this new legal issue, id., but this Court held that the refusal was error because it went to whether the moving party met the burden set by OCGA § 9-11-56. American Central Insurance Company v. Lee, 273 Ga. 880 (2) (2001). As in Dental One, whether the assignment lacked valid consideration was "a new legal issue on appeal" that was not raised below, and it was far more of a "new legal issue" than Pfeiffer's citing additional regulations for the same duty in this case.

2. The majority's holding directly contradicts Dental One and American Central.

Dental One and American Central thus allow a non-moving party to raise new legal issues on appeal (whether there was a condition precedent to an assignment in one case, and whether the assignment lacked sufficient consideration in the other). Both went far beyond allowing the non-movants to cite additional authorities for positions they were already taking in the trial court; they allowed non-movants to assert additional defenses to the plaintiff's claim. Here, however, the non-movant is prohibited from asserting additional authorities for the same position (DOT had a duty to provide safety at a construction site) that she took in the trial court. The conflict between the majority's opinion and Dental One-American Central should be acknowledged.

With respect, the majority's attempt to reconcile its decision with Dental One fails.(4) Contrary to the majority's statement that Dental One "does not stand for the proposition than [sic] a party can raise new legal issues on appeal" (Maj. Op. 6), whether an order of confirmation was a condition precedent to the rent claim was "a new legal issue on appeal," and it was far more of a "new legal issue" than Pfeiffer's citing additional regulations for the same duty in this case.

Nor did Dental One turn on "who bears the burden of proof at trial" (id.) because the only burden mentioned in Dental One was the burden on motion for summary judgment. The word "trial" occurs only in reference to "trial court," except where this Court unanimously stated:

The failure to articulate a particular argument or objection in opposition to a motion for summary judgment is not the same as a failure to object to the admission of evidence at a trial.

269 Ga. at 618 (emphasis added). There is no known "burden of proof" regarding law.

Nor was Dental One about a movant's failure to "present the trial court with the facts showing its entitlement to judgment." Maj. Op. 6 (emphasis added). The "facts" were sufficient unless a confirmation order was really a condition precedent, which was a new legal issue, and which this Court considered and resolved by finding that any such condition precedent was waived. 269 Ga. at 618 (2).

The majority's attempt to square its holding with Dental One also runs into a rather formidable obstacle on the face of the record: even DOT, the party that benefits most from the majority's reading of Dental One, did not read it the way the majority reads it, but instead conceded that Dental One required consideration of Pfeiffer's additional citations of authority,(5) at least until this Court rejected the concession and required DOT to brief the issue.(6) The majority's reading of Dental One is unsupportable, and there is no plausible basis for distinguishing the result here from the results in Dental One-American Central.

Certainly, the different results cannot depend on whether the parties or the appellate court characterize the issue as a "new legal issue" (waived) or as "showing that the movant did not meet the standards of OCGA § 9-11-56" (not waived), because both phrases are applicable to all cases like Dental One, American Central, and this case. The result cannot hang on "magic words" or some undefined appellate discretion to follow the law or not.

Nor can the different results depend on who is appealing, with defendants entitled to assert additional defenses as new legal issues, but plaintiffs prohibited from asserting additional authorities supporting their central claims. There is no basis in law for such different treatment.

How the Court of Appeals will apply the distinction between the "arguments" that must be considered though raised for the first time on appeal under Dental One-American Central and those that it need not consider under Pfeiffer is anybody's guess. The synonyms used by the majority in this case are unenlightening: "meritorious legal arguments" "best case," a "viable theory of recovery," "issues," a "basis" (as in "a completely different basis"), a "position taken in the trial court," "legal issues," a "ground or argument," "issues called to the attention of the trial court," a "new ground," "new theories or issues." Maj. Op. 3-6. Some are viable; some are not. The majority's opinion has created uncertainty where it previously did not exist.

3. The majority's reasons for disallowing the citation of additional authorities in this case do not justify departure from Dental One and American Central.

Given that an irreconcilable conflict exists, are the policy concerns cited by the majority so compelling that Dental One and American Central should be jettisoned? This amicus has shown in its earlier brief that those cases were solidly based on the concepts of de novo review and the limited issues for review (trial or appellate) that are embedded in the text of OCGA § 9-11-56, and the analysis will not be repeated here. Instead, this amicus will show that the majority's policy concerns are overstated or fanciful. In particular, the majority is concerned with this:

Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court. If the rule were otherwise, a party opposing a motion for summary judgment need not raise any legal issue, spend the next year thinking up and researching additional issues for the appellate court to address, and require the opposing party to address those issues within the narrow time frame of appellate practice rules.

Maj. Op. 4-5 (footnote omitted). Thus, there is a fairness-to-the-trial-court concern and an anti-sandbagging concern. With respect, the latter is simply imaginary: the majority fears the ability of a lawyer for the non-moving party to refrain from doing the research needed to cite authority to sustain the client's position, in order to lose a motion for summary judgment, so that the losing lawyer can then appeal, all in order to buy time to do the research during the year or so for the appellate process to take place, and all in order to "constrain" the opponent's response time to the "narrow" 20-day time frame in the appellate court,(7) even though the Uniform Rules contemplate no reply at all and therefore provide no particular time for reply at all.(8) With respect, such a lawyer would be more of a threat to his client than to the opponent or the trial court. This Court need not be concerned with deterring such non-existent sandbagging. The costs of appealing and delay, the desire to win and to avoid losing, as well as broader reputation-related effects, should all suffice to deter such conduct without lowering the statutory standards of OCGA § 9-11-56.

The fairness-to-the-trial-court concern has some substance, but the weight of this concern must be assessed in terms of the entire appellate context. It is just as "unfair" to the trial court for an appellate court to cite authorities that were not considered below as it is for an appellant to do so,(9) or to apply the law that has changed since the trial court considered the case, or to reverse jury instructions as to which little or no authority was cited, or to reverse evidentiary rulings that were made on momentary consideration without any citations of any authority. In these cases, fairness-to-the-trial-court takes a back seat to fidelity-to-the-law. Moreover, the Court recognizes the limited significance of fairness-to-the-trial-court by requiring appellate briefs and, in some cases, oral argument, and allowing amicus briefs, rather than restricting review to trial briefs and transcripts of oral argument in the trial court.

More than offsetting the fairness-to-the-trial-court concern, this Court should consider the following concerns: the rule-of-law concern, by which any court should follow applicable law, whether or not it is cited by any party in that court or in any other court; the plain-meaning concern, by which a court should decide any question of summary judgment based on the plain meaning of OCGA § 9-11-56 ("that the movant is entitled to a judgment as a matter of law") and not a lesser standard ("entitled to a judgment as a matter of the law cited in a response brief"); the right-to-jury-trial concern; the stare-decisis concern; and the rights-of-citizens concern, by which citizens do not lose the benefit of laws of which they are ignorant.

Finally, although the majority cites Eleventh Circuit and other authority as persuasive, its research of other law has stopped short of seeing how those courts handle pure questions of law, such as whether the regulations cited by Pfeiffer actually impose a duty. As the Eleventh Circuit held in Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 & n. 8 (11th Cir. 2001):

First, an appellate court will consider an issue not raised in the district court if it involves a pure question of law, and if refusal to consider it would result in a miscarriage of justice. Second, the rule [against considering issues raised for the first time on appeal] may be relaxed where the appellant raises an objection to an order which he had no opportunity to raise at the district court level. Third, the rule does not bar consideration by the appellate court in the first instance where the interest of substantial justice is at stake. Fourth, a federal appellate court is justified in resolving an issue not passed on below ... where the proper resolution is beyond any doubt. Finally, it may be appropriate to consider an issue first raised on appeal if that issue presents significant questions of general impact or of great public concern.

... The construction and application of the statutes in this case involve pure questions of law. Our refusal to consider the separate penalties issue would result in a miscarriage of justice. ... A "miscarriage of justice" is a "[d]ecision or outcome of [a] legal proceeding that is prejudicial or inconsistent with [the] substantial rights of [a] party." Black's Law Dictionary, 999 (6th ed.1990).

This amicus submits that other appellate courts will likewise consider the sorts of pure legal arguments that Pfeiffer is seeking to have considered, even if they vigorously reject other issues raised on appeal for the first time. Anything else is a miscarriage of justice and a failure of law.

CONCLUSION

The majority is correct that its precedents require a party resisting summary judgment to present its best theories of recovery and its best facts (Maj. Op. at 3-4), but those cases do not require a presentation of its best authorities, its best law, in support of the theory of recovery. Requiring a party to present every "argument" for a theory of recovery within the short period of time for responding to a motion for summary judgment is a huge expansion of the existing duty to present the facts supporting one's theory of recovery.

This amicus suggests that the Court uphold Dental One and American Central, and reverse the judgment below with a direction that the Court of Appeals consider the merits of the issues it declined to address.

Respectfully submitted, this December 5, 2002.

/s/ CHARLES M. CORK, III

1. American Central Ins. Co. v. Lee, 273 Ga. 880, 883 (2001).

2. Dental One Associates, Inc. v. JKR Realty Associates, Ltd., 269 Ga. 616, 617-18 (1998).

3. This holding was quoted, in text set out for special emphasis, by this Court in the unanimous American Central case, 273 Ga. at 883.

4. The majority does not even attempt to reconcile with American Central.

5. Brief of Respondent-Appellee of February 20, 2002, at 5-7 (copy attached).

6. Order of April 18, 2002.

7. S.Ct. R. 10; Ct. App. R. 26(b). The majority's opinion would limit the non-moving party's total response time to about 30 days, even though the movant may have had months to prepare the motion. This raises fairness concerns in the other direction.

8. U.S.C.R. 6.

9. Unless this Court is willing to hold that an appellate court may not consider authorities that were not presented to the trial court, it seems strange to prevent an appellant from helping the appellate court do its job, especially since the appellee may do so under the "right for any reason rule," if not otherwise.