Mayor & Aldermen of Savannah v. Batson–Cook Co.

• Decision Date: 04 February 2013
• Docket Number: No. A11A0768.,A11A0768.
• Citation: 734 S.E.2d 743,318 Ga.App. 152
• Court: Georgia Court of Appeals
• Parties: MAYOR & ALDERMEN OF the CITY OF SAVANNAH v. BATSON–COOK COMPANY et al.

318 Ga.App. 152

734 S.E.2d 743

MAYOR & ALDERMEN OF the CITY OF SAVANNAH

v.BATSON–COOK COMPANY et al.

No. A11A0768.

Court of Appeals of Georgia.

Aug. 29, 2012.

Reconsideration Denied Aug. 29, 2012.

Certiorari Denied Feb. 4, 2013.

Andrew Dean Shore, Gregory Kenneth Morgan, Elizabeth Bloom Hodges, Atlanta, James B. Blackburn, Savannah, Peter Antonio Giusti, for Appellant.

Charles Jerry Willis, Robert S. Glenn Jr., Stanley Karsman, Brian J. Vella, Mark Lawrence DeGennaro, LaGrange, for Appellee.

McFADDEN, Judge.

In Mayor & Aldermen of the City of Savannah v. Batson–Cook Co., 291 Ga. 114, 728 S.E.2d 189 (2012), the Supreme Court reversed and remanded with direction Division 1 of our decision in Mayor & Aldermen of the City of Savannah v. Batson–Cook Co., 310 Ga.App. 878, 714 S.E.2d 242 (2011), in which we affirmed the trial court's denial of the City of Savannah's motion to recuse the trial court judge. The Supreme Court held that the trial court judge should have assigned the motion to recuse to another judge for resolution, and directed us to remand the case to the Superior Court of Troup County for disposition of the motion to recuse by a different judge. 291 Ga. at 122(2)(b)(ii), 728 S.E.2d 189.

Because the Supreme Court's decision addressed only one of the Divisions in our opinion, we are required

(1) to read [the Supreme] Court's opinion within the context of the opinion being reversed; (2) to determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court; and (3) [to] enter an appropriate disposition with regard to those portions that is consistent with the issues addressed and considered by this Court.Shadix v. Carroll County, 274 Ga. 560, 563–564(1), 554 S.E.2d 465 (2001). After so doing, we find that Divisions 2, 3, 4, 5, 6, 7 and 8 of our opinion are consistent with and were not affected by the Supreme Court's decision. Accordingly, Division 1 of our opinion is vacated and the judgment of the Supreme Court is made the judgment of this court for Division 1. The judgment of the trial court denying the motion to recuse is vacated, and the case is remanded for assignment of the motion to recuse to another judge for resolution. If the motion to recuse is granted, “then the proceedings that occurred after the filing of that motion are invalid and an interlocutory appeal of the grant of the motion may be sought.” (Citations omitted.) Morgan v. Propst, 301 Ga.App. 402, 405(1)(c), 688 S.E.2d 357 (2009). If the motion is denied, the trial court may reenter the judgment on the jury verdict. Id.

Judgment affirmed in part, vacated in part and case remanded with direction.

PHIPPS, P.J., and ANDREWS, J., concur.

ON MOTION FOR RECONSIDERATION

The City of Savannah seeks reconsideration of our remittitur opinion. It argues that, upon remand, should the trial court grant the motion to recuse and thereby render invalid the trial court's subsequently entered rulings, then to the extent our opinion affirmed those rulings, our opinion would be incorrect and must be changed. On the contrary,

when the Supreme Court reviews a decision by the Court of Appeals, any portions of the Court of Appeals' decision that are not considered by the Supreme Court are unaffected by the Supreme Court's opinion and become the law of the case. Thus, those portions of a Court of Appeals' decision that were not addressed by the Supreme Court are treated as affirmed and become binding upon the return of the remittitur to the extent they are consistent with the Supreme Court's opinion.

(Citations and punctuation omitted.) Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, 284 Ga.App. 387, 390, 643 S.E.2d 864 (2007). The Supreme Court held that the trial court erred in affirming the trial judge's denial of the motion to recuse and that the case must be remanded so that a different judge could dispose of the recusal motion. Mayor & Aldermen of the City of Savannah, supra, 291 Ga. at 121–122(2)(b)(i), 728 S.E.2d 189. If a different judge, on remand, reached the same conclusion as the initial judge—that the motion to recuse should be denied—then the trial court would be authorized to “reenter the judgment on the jury verdict and its subsequent orders.” (Citation omitted.) Morgan, supra, 301 Ga.App. at 405 (1)(c), 688 S.E.2d 357. Consequently, Divisions 2, 3, 4, 5, 6, and 8 of our opinion, which addressed the merits of the subsequently entered rulings, as well as Division 7, which addressed a previously entered ruling, were not inconsistent with the Supreme Court's opinion.

It is true that should the trial court grant the motion to recuse “then the proceedings that occurred after the filing of that motion are invalid.” (Citations omitted.) Morgan, supra, 301 Ga.App. at 405(1)(c), 688 S.E.2d 357. But we cannot issue an opinion that addresses potential rulings of the trial court in the case of that eventuality. Bibbins v. State, 280 Ga. 283, 284–285, 627 S.E.2d 29 (2006) (“Georgia appellate courts are not authorized to render advisory opinions as to potential...