The Supreme Court of Georgia limits its “equal-division” jurisdiction


supreme court of georgia; GA Supreme Court

By: Michael Freed

Georgia’s Constitution requires the Court of Appeals to transfer a case to the Supreme Court when it is equally divided in deciding whether to affirm or reverse a lower court ruling. This situation does not occur often because the Court of Appeals decides most cases through a three-judge panel. But occasionally, the Court of Appeals will rule en banc, and due to a vacancy or recusal, the panel will consist of an even number of judges who split equally on its decision.  

Such was the case in Wilson v. Inthachak. A fourteen-judge en banc panel of the Court of Appeals reviewed a trial court’s entry of summary judgment for a doctor in a medical malpractice case. The trial court based its ruling on two grounds. First, it held that Georgia’s emergency standard of care applied, and that plaintiff failed to satisfy that standard with clear and convincing evidence of gross negligence. Second, the trial court held that plaintiff could not prove causation.  

The Court of Appeals unanimously concluded that the trial court erred on both grounds. But they split 7-7 on their reasoning and its effect. Seven judges concluded that the emergency standard of care could apply in this instance, but fact questions remained on whether it did apply based on plaintiff’s need for emergency medical care. The seven other judges decided that the emergency standard of care could not apply at all under the facts presented. All fourteen judges then agreed that questions of fact precluded summary judgment on causation. But they again split 7-7 on the court’s judgment. One side concluded that the court should vacate the trial court’s order and remand the case. The other side determined that the court should reverse the trial court. Finding itself equally split on those two issues, the Court of Appeals transferred the case to the Supreme Court.  

The Supreme Court declined jurisdiction. It reasoned that the Court of Appeals was not, in fact, divided over whether the trial court erroneously entered summary judgment. The panel merely disagreed about why one of the two grounds was faulty. That disagreement affected only whether to vacate the judgment or reverse. The Court found that difference of opinion was insufficient to trigger its equal-division jurisdiction.  

The situation presented in Wilson was uncommon. But every appeal involves jurisdictional issues. The appellant must recognize which court has jurisdiction over the appeal and follow the proper procedure to ensure jurisdiction. The appellee should always scrutinize the appellant’s choices and, if improper, challenge jurisdiction.   

For more information, please contact Michael Freed at or your local FMG attorney.