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This case arose from “a long-running battle” that appellant Richard Shelley waged against the Town of Tyrone’s zoning ordinances. Because Shelley failed to exhaust his administrative remedies before seeking relief in the trial court, his as-applied challenges to the zoning ordinances were not ripe for judicial review. The Georgia Supreme Court therefore affirmed the superior court’s order granting Tyrone partial summary judgment on those claims. And because the town enacted a new zoning ordinance, Shelley’s facial challenges to the previous ordinances were moot. The Supreme Court therefore vacated the superior court’s order addressing the merits of those claims and remanded the case with direction to dismiss those claims unless Shelley properly amended his complaint to challenge the ordinance now in effect. View "Shelly v. Town of Tyrone" on Justia Law

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Kammerer Real Estate Holdings, LLC owned a lot on which it wanted to construct an automotive service facility. Kammerer applied for a site development permit. The lot was subject to a zoning condition under the Forsyth County Unified Development Code that certain “open space” on the lot remain undeveloped. The Director of the Forsyth County Department of Planning and Community Development concluded that the proposed construction would not comply with this condition, and so, he refused to issue a site development permit. Kammerer then asked the Forsyth County Board of Commissioners to amend the zoning condition, but the Board declined to do so. At that point, Kammerer filed this lawsuit against the County, the Board, and the Director, alleging that the Director had misconstrued the “open space” condition, and if it actually meant what the Director said it meant, it was unconstitutional in several respects. The defendants filed a motion to dismiss for failure to state a claim. The trial court granted the motion in part and denied it in part. Kammerer appealed the dismissal of certain claims, and the defendants cross-appealed the refusal of the trial court to dismiss other claims. The Georgia Supreme Court determined the trial court properly dismissed a claim for attorney fees, but reversed in all other respects, finding the trial court misinterpreted the controlling caselaw that governed this case, and remanded for further proceedings. View "Kammerer Real Estate Holdings, LLC v. Forsyth County Bod. of Comm'rs" on Justia Law

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Appellant Robert Olsen was formerly a police officer who was indicted for felony murder and other charges related to the shooting death of an unarmed suspect. The shooting occurred when Olsen responded to a suspicious person report at an apartment complex and ultimately shot the individual who was the subject of the report. Olsen claimed he acted in self-defense, and moved to dismiss the indictment on the ground that unauthorized persons were present in the grand jury room during the prosecutor’s presentation of evidence. After conducting a hearing, the trial court denied this motion in a detailed order setting forth the circumstances of the evidentiary proceedings before the grand jury and the applicable law, and then granted a certificate of immediate review. The Georgia Supreme Court granted appellant’s request for interlocutory appeal to address: (1) whether the presence of witnesses, non-lawyer and lawyer spectators during the presentation of evidence to the grand jury during the proceedings leading to the defendant’s indictment in this case violated the recognized need for grand jury secrecy and compromised the grand jury’s independence from outside influence; and (2) whether the defendant was prejudiced by the presence of these individuals such that the trial court erred in refusing to dismiss his indictment. After reviewing the record and considering the parties’ arguments, the Supreme Court found no reversible error and affirmed. View "Olsen v. Georgia" on Justia Law

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Stephen Fazio was convicted after a bench trial of driving under the influence of alcohol to the extent it was less safe to do so, and driving with an unlawful blood alcohol concentration. He appealed, arguing the trial court erred when it refused to suppress the results of his alcohol breath tests because, he contended, they were obtained in violation of the United States and Georgia constitutions, in part because the statute did not fully and accurately inform a suspect of his rights or the consequences of his refusal to consent to a breath test. Finding no error or constitutional violation, the Georgia Supreme Court affirmed. View "Fazio v. Georgia" on Justia Law

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A jury found appellant Delron Glenn guilty of malice murder in connection with the shooting death of John Tanner. Glenn appealed, arguing: (1) the trial court erred in denying his motion in limine to prevent lay witness identification testimony; (2) the trial court erred in denying his motion to suppress the search of his sister’s apartment because the magistrate judge lacked probable cause to issue the search warrant; (3) the trial court erred in denying his motion to suppress a cell phone seized during that search, and; (4) his trial counsel was ineffective for failing to identify and redact references to Glenn’s gang affiliation that were contained in a co-defendant’s video-taped statement which was played for the jury. Finding no error, the Georgia Supreme Court affirmed. View "Glenn v. Georgia" on Justia Law

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Gregory and Adam Piccione (“the Picciones”), grandchildren of testator Virginia Arp (“Virginia”) and children of Donna Piccione (“Donna”), appealed the superior court’s denial of their motion for summary judgment in this action against their three uncles, Sam and Dwayne Arp, individually and in their capacities as executors of Virginia’s estate, and David Arp. The Picciones contended they had a combined one-fourth interest in the property that comprised Virginia’s estate and sued in superior court, asserting actions for conversion, fraud, and trespass regarding those property interests, and moved for summary judgement. The trial court denied their motion, concluding that Virginia’s use of the words “PER CAPITA” in the phrase: “I give, bequeath and devise unto my children, Sam Arp, Donna Piccione, David Arp and Dwayne Arp, all of the property that I may own at the time of my death, both real and personal, of every kind and description and wherever located, PER CAPITA” was a “limitation” under the anti-lapse statute, OCGA § 53-4-64 (a); the anti-lapse provisions of the statute therefore did not apply to the gifts to Virginia’s children; as Donna predeceased Virginia, the testamentary gift to Donna lapsed; and thus, the Picciones had no property interest upon which to base their claims. Finding no reversible error in that judgment, the Georgia Supreme Court affirmed the trial court’s judgment. View "Piccione v. Arp" on Justia Law

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In January 2014, after approximately three years of marriage, Appellant David Patton filed a complaint for divorce against Appellee Jocelyn Vanterpool, M.D. During the pendency of the divorce, the parties consented to Appellee undergoing in-vitro fertilization (IVF) treatment, which would eventually utilize both donor ova and donor sperm. Appellee traveled to the Czech Republic for the IVF procedure. Four days after leaving, a final judgment and decree of divorce was entered in the divorce action. The divorce decree incorporated the parties’ settlement agreement, which reflected that, at the time of the agreement, the parties neither had nor were expecting children produced of the marriage. Approximately 29 weeks later, Appellee gave birth as a result of the IVF procedure. Appellee subsequently moved the superior court to set aside the decree of divorce, seeking to include the minor child in the divorce agreement; this motion was denied. Appellee thereafter instituted a paternity action against Appellant, alleging that he gave written, informed consent for IVF and that OCGA 19-7-21 created an irrebuttable presumption of paternity; Appellee also sought child support. In response, Appellant argued that he did not meaningfully consent to IVF and that, even if he did, OCGA 19-7-21 was unconstitutional. The trial court sided with Appellee, granting her summary judgment on the issue of paternity. In September 2016, the Georgia Supreme Court granted Appellant’s application for discretionary appeal to address whether that irrebuttable presumption applied to children conceived by means of IVF. The Supreme Court concluded that it did not and reversed the judgment of the superior court. View "Patton v. Vanterpool" on Justia Law

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This case calls for the Georgia Supreme Court to decide whether Georgia’s state constitutional protection prohibited law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer. “A nearly unbroken line of precedent dating back to 1879 leads us to conclude that it does, although the appellant here still loses because the language of the implied consent notice statute he challenges is not per se coercive.” Frederick Olevik was convicted of DUI less safe, failure to maintain a lane, and no brake lights. Olevik appealed, challenging the denial of his motion to suppress the results of a state-administered breath test on the grounds that the implied consent notice statute, OCGA 40-5-67.1 (b), was unconstitutional on its face and as applied to him. Olevik argued: (1) that his right against compelled self-incrimination was implicated when law enforcement asked him to expel deep lung air into a breathalyzer; (2) that the materially misleading language of the implied consent notice was coercive per se and in fact did compel him to perform this act; thus (3) the admission of his breath test results violated his right against compelled self-incrimination under the Georgia Constitution and his due process rights. The Supreme Court agreed with Olevik that submitting to a breath test implicates a person’s right against compelled self-incrimination under the Georgia Constitution, and it overruled prior decisions that held otherwise. The Court nevertheless rejected Olevik’s facial challenges to the implied consent notice statute, because the language of that notice was not per se coercive. View "Olevik v. Georgia" on Justia Law

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The parties to this appeal were an unmarried couple. Appellant Adam Vargo purchased the real property in which the parties formerly resided in his own name as sole owner, and executed a purchase money mortgage on it. Shortly thereafter, Vargo executed a warranty deed conveying the property to himself and appellee Brittany Adams as joint tenants with the right of survivorship. The couple broke up and Vargo filed a claim for equitable partition. Vargo testified at trial that he contributed the down payment to purchase the property and nearly all the mortgage payments made on the loan, and claimed that an inequity existed, requiring equitable partition of the property, due to the disparity of funds he paid toward the purchase of the property compared to that paid by Adams. The trial court found equitable partition was not an available remedy to parties who hold property as joint tenants with right of survivorship except in actions for divorce. In the order denying Vargo’s petition for equitable partition, the trial judge advised Vargo that he could sever the joint tenancy and then seek either a statutory partition under OCGA 44-6-160, or equitable partition if no sufficient remedy at law existed. The order also granted Vargo certain of his claims for conversion of items of personal property retained by Adams, but denied Vargo’s claim for attorney fees. Vargo filed this appeal, but finding no error in the trial court’s judgment, the Georgia Supreme Court affirmed. View "Vargo v. Adams" on Justia Law

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Appellant Demetrius McNeal was tried by jury and found guilty of malice murder, felony murder, aggravated assault, criminal attempt to commit robbery, possession of a firearm during the commission of a felony, and possession of a firearm by first offender probationer. The charges stemmed from the 2010 shooting death of William Callison and the attempted robbery of David Reid. McNeal appealed, arguing the trial court erred in commenting on the evidence and in refusing to give his requested jury instruction on accident. Finding no error, the Georgia Supreme Court affirmed. View "McNeal v. Georgia" on Justia Law