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Legislative Update, Weeks 5 - 6 (03.11.19)

The General Assembly has been moving at full throttle as they hurtle into the final weeks of the legislative session. Crossover Day was Thursday, March 7, making for a late night at the Capitol, with lawmakers working past midnight. For those unfamiliar with the Georgia legislative process, all active legislation must pass in one chamber by Crossover Day (Day 28) in order to continue through the legislative process this session. Any legislation that did not cross over by Thursday will probably not become law in 2019. But because this is the first year of the two-year legislative cycle, a bill that did not pass in one chamber by Crossover Day is still viable next year without having to be refiled as a new bill. 

Here’s a summary of legislation that “crossed over” by the March 7 deadline.

State Bar Bills
Two of the three bills that are part of the State Bar’s 2019 legislative package managed to crossover by the March 7 deadline. HB 70, sponsored by Rep. Chuck Efstration (R-Dacula), integrates citations to provisions in Title 29 Chapter 11 in order to provide clarity for attorneys practicing in this area and to prevent litigation based on ambiguities between these chapters. The bill also adds three new provisions that address bonding, costs and registering guardianship letters from other states. HB 70 has been assigned to the Senate Judiciary Committee and may receive a committee hearing by the end of this week.

SB 190, sponsored by Sen. John Kennedy (R-Macon), passed 52-0 in the Senate on March 7. SB 190 seeks to improve an inefficient procedural standard in custody cases so that a party can file a counterclaim to a complaint to modify child custody. Under current Georgia law, a party would need to file his or her own separate action, rather than making a counterclaim or cross-motion to a complaint to modify custody. The language in SB 190 would also allow counterclaims and cross-motions in response to a motion for contempt or enforcement of a custody order. SB 190 has been assigned to the Juvenile Justice Committee in the House.

Dueling Business Court Bills
The House passed HB 239, sponsored by Rep. Chuck Efstration (R-Dacula), on March 5. The bill provides that the statewide business court has concurrent jurisdiction and the powers of a court of equity over claims arising under the Uniform Commercial Code, the Georgia Uniform Securities Act and the Georgia Business Corporation Code, among others. Additionally, under HB 239, the court has concurrent jurisdiction over certain claims between two or more businesses where the amount in controversy exceeds $250,000, as well as claims involving commercial real property that exceed $1 million. The business court may accept cases that are (1) directly initiated with the court, (2) removed from superior or state court by an agreement of all the parties or (3) transferred after a party files a petition to transfer and the business court finds by a written order that the case is within its authority. The filing fee in HB 239 is set at $5,000, and the judge shall serve an initial term beginning on Aug. 1, 2020.

The Senate’s business court legislation, SB 110, sponsored by Sen. Jesse Stone (R-Waynesboro), includes the same subject matter jurisdiction and venue provisions as the House bill. Under SB 110, the filing fee for a case in the business court would be $1,000, paid by the party filing the action in the business court or seeking to transfer the case, or by an equal allocation across all parties if they all agree to remove the case to the business court. In a significant change from the House version, the Senate Judiciary Committee unanimously amended SB 110 on Feb. 28 to change the statewide business court’s location from Atlanta to Macon. SB 110 passed in the Senate on March 7 by a vote of 52-2.

Both HB 239 and SB 110 have been assigned to the other chamber’s Judiciary Committee and will likely be heard in the coming weeks.

Civil eFiling
SB 38, sponsored by Sen. William Ligon (R-Brunswick), amends the civil eFiling statute so that clerks or electronic filing service providers may not charge a fee for pleadings or documents filed by the state, its agents or political subdivisions, and may not charge any filer for leave of absence and conflict notices.

Amending the Statute of Frauds
SB 37 passed in the Senate on March 1 by a vote of 52-1. The bill seeks to amend the Statute of Frauds so that any agreement to modify, alter, cancel, revoke or rescind a contract that falls within the Statute of Frauds must be in writing. SB 37 is in response to a 2018 Court of Appeals of Georgia decision in Crop Production Services, Inc. v. Moye, which found that a mutual oral agreement to rescind a written guarantee is not subject to the Statute of Frauds.

Sovereign Immunity
HB 311, sponsored by Rep. Andy Welch (R-McDonough), provides for specific instances where sovereign immunity is waived in a lawsuit against the state that seeks declaratory or injunctive relief to remedy an injury in fact caused to an aggrieved person. The bill lays out the parameters for such a waiver in cases against the state, as well as local governmental entities. HB 311 passed by a vote of 168-4 in the House and is on its way to the Senate Judiciary Committee.

Landlord-Tenant Bills
HB 346, sponsored by Rep. Sharon Cooper (R-Marietta), intends to strengthen tenant protections so that a tenant can bring a defense of retaliation against a landlord in a dispossessory action where the dispossessory was filed because the tenant gave notice of a repair, complained to a governmental entity about code enforcement or created a tenant organization to discuss the conditions of the property. HB 346 passed by a vote of 131-25 and has been assigned to the Senate Judiciary Committee.

HB 492, sponsored by Rep. Bonnie Rich (R-Suwanee), would require an application for a writ of possession to be made within 30 days of issuance unless it's accompanied by an affidavit showing good cause for the delay in applying for execution of the writ. The bill passed unanimously in the House and has been assigned to the Senate Special Judiciary Committee.

Family Law and Domestic Relations
HB 381, sponsored by Rep. Chuck Efstration (R-Dacula), makes minor revisions to the child support guidelines to bring them in line with federal law. HB 381 passed in the House on Crossover Day and has been assigned to the Senate Judiciary Committee.

HB 543, also sponsored by Rep. Efstration, provides that a court may adjudicate an individual to be an equitable caregiver of a child if a court finds by clear and convincing evidence that the individual meets a set of elements demonstrating that he or she has engaged in consistent caretaking of that child. An individual who is found to be an equitable caregiver has standing so a court may establish parental rights and responsibilities as to that individual. HB 543 passed in the House and has been assigned to the Judiciary Committee in the Senate.

Real Estate Filing Fees
HB 288, sponsored by Rep. Alan Powell (R-Hartwell), revises the fees that the clerks of the superior courts can charge for filing real property documents and provides for a flat fee in most instances rather than a fee per page.

Bills That Did Not Make the Crossover Deadline
A handful of bills affecting civil procedure and evidence in personal injury litigation failed to pass by Crossover Day. HR 256, a constitutional amendment that would allow the General Assembly to provide caps on damage awards allowable by a jury, did not receive a hearing before the March 7 deadline. Both “Seatbelt Bills,” SB 148 and HB 457, which would allow the admission of evidence for a failure to use a seatbelt in any civil action, received committee hearings but ultimately did not pass the committee process. SB 155, which would limit damages for death or injury to amounts actually paid by or on behalf of the claimant, received a committee hearing, but the Senate Judiciary Committee ultimately did not take a vote on the bill. SB 189, requiring the electronic production of health records and revising the fees that a provider can charge for the retrieval and production of those records, received a hearing in the Senate Health and Human Services Committee but did not pass out of committee before the Crossover Day deadline.

SB 178, which would cap the amount of money a condo association can charge for an accounting statement of outstanding dues and payments provided at a closing, failed to get a vote on the Senate floor after it was “tabled” on Crossover Day. The bill capped the fee at $250 and provided a statutory “Statement of Account” form, which are updates to the legislation after Gov. Deal vetoed a similar bill capping fees at $100 last year.

If you have questions or comments on these bills or any other legislation before the General Assembly this session, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org. For additional information about the State Bar of Georgia’s legislative program and agenda, to track legislation or to contact the Bar’s legislative team, please visit the Legislative Program page.

Legislative Update, Weeks 2 - 4 (02.25.19)

The Legislature has worked at a hectic pace for the past two weeks as committees hear bills and debate legislation. Crossover Day is quickly approaching on March 7, which marks the point in the session where a bill must pass in one chamber to continue through the process. The halls of the State Capitol have been humming with activity, as everyone from the Girl Scouts to the Future Farmers of America descend on Atlanta to promote legislation and meet their elected officials.

On Feb. 19, Chief Justice Harold D. Melton delivered his first State of the Judiciary Address before a joint session of the General Assembly. Chief Justice Melton discussed the work of the Georgia judiciary over the past year, expressed the Court’s anticipation of the new judicial building and highlighted the work of the Atlanta Volunteer Lawyers Foundation at Thomasville Heights Elementary School in Atlanta. The video and full text of the speech is available on the Supreme Court’s website.

Here’s a current rundown of legislation that may be of interest to legal practitioners across the state.

On Thursday, subcommittees in the House and Senate each heard their own respective versions of legislation to implement a statewide business court. HB 239, sponsored by Rep. Chuck Efstration (R-Dacula), provides that the court has concurrent jurisdiction and the powers of a court of equity over claims arising under the Uniform Commercial Code, the Georgia Uniform Securities Act and the Georgia Business Corporation Code, among others. Additionally, under HB 239, the court has concurrent jurisdiction over certain claims between two or more businesses where the amount in controversy exceeds $250,000, as well as claims involving commercial real property that exceed $1 million. The business court may accept cases that are (1) directly initiated with the court; (2) removed from superior or state court by an agreement of all the parties; or (3) transferred after a party files a petition to transfer and the business court finds by a written order that the case is within its authority. The most recent substitute of HB 239 sets the filing fee at $1,000 and provides that the judge shall be appointed by Aug. 1, 2019, and the court will begin accepting cases on Aug. 1, 2020.

The Senate version of the business court’s legislation is SB 110, sponsored by Sen. Jesse Stone (R-Waynesboro). SB 110 includes some of the same subject matter jurisdiction as the House bill, but has a lower amount in controversy requirement ($100,000) and expressly lists concurrent jurisdiction in cases involving receiverships of businesses, noncompetition covenants, and antitrust laws or restraints of trade. Under SB 110, the business court would commence operations on Jan. 1, 2020, and could begin accepting cases on Aug. 1, 2020. The filing fee for a case in the business court would be $1,000, paid by the party filing the action in the business court or seeking to transfer the case, or by an equal allocation across all parties if they all agree to remove the case to the business court.

Both HB 239 and SB 110 received a hearing, but no vote, on Thursday. We expect both bills to receive another hearing and vote in the House and Senate Judiciary committees this week.

HB 70, the State Bar’s guardianship cleanup bill, passed out of the House this morning. Sponsored by Rep. Chuck Efstration (R-Dacula), HB 70 integrates citations to provisions in Title 29 Chapter 11 in order to provide clarity for attorneys practicing in this area and to prevent litigation based on ambiguities between these chapters. The bill also adds three new provisions that address bonding, costs and registering guardianship letters from other states. HB 70 will now crossover to the Senate, where it will likely be taken up in committee after March 7.

A bill that makes a change to the statute governing mandatory civil eFiling passed in the Senate on Feb. 15 and now awaits a hearing in the House Judiciary Committee. SB 38, sponsored by Sen. William Ligon (R-Brunswick), amends the civil eFiling statute so that clerks or electronic filing service providers may not charge a fee for pleadings or documents filed by the state, its agents or political subdivisions and may not charge any filer for leave of absence and conflict notices.

SB 37 seeks to amend the Statute of Frauds so that any agreement to modify, alter, cancel, revoke or rescind a contract that falls within the Statute of Frauds must be in writing. SB 37 is in response to a 2018 Court of Appeals of Georgia decision in Crop Production Services, Inc. v. Moye, which found that a mutual oral agreement to rescind a written guarantee is not subject to the Statute of Frauds. SB 37 has received two hearings in the Senate Banking and Financial Institutions Committee and will receive another hearing Tuesday at 3 p.m.

Several bills were filed last week that touch on issues in personal injury and tort legislation. HR 256, sponsored by Rep. Kasey Carpenter (R-Dalton), would amend the constitution so that the General Assembly may provide by law for limitations on the amount of awards allowable by a jury. SB 148, sponsored by Sen. Randy Robertson (R-Cataula), would allow the admission of evidence for a failure to use a seatbelt in any civil action when the evidence is used to prove a failure to mitigate damages, assumption of risk, apportionment of fault, negligence, comparative negligence, per se nor contributory negligence, or causation per se. SB 155, sponsored by Sen. Bill Cowsert (R-Athens), provides that in an action to recover damages resulting from death or injury, the damages recovered by a claimant for reasonable and necessary health care services or treatment received shall only include: (1) amounts actually paid by or on behalf of the claimant; and (2) amounts actually necessary to satisfy unpaid charges still due and payable to the health care service provider for which the claimant or a third party on behalf of the claimant has a legal obligation to pay. To date, HR 256, SB 148 and SB 155 have not been scheduled for a committee hearing.

HB 311 and SB 135 may also be of interest to the legal community. HB 311, sponsored by Rep. Andy Welch (R-McDonough), provides for specific instances where sovereign immunity is waived in a lawsuit against the state, as well as specific circumstances where sovereign immunity shall not be waived. SB 135, sponsored by Rep. Larry Walker (R-Perry), would amend workers’ compensation administration and benefits, and proposed to increase the compensation benefits for total disability and temporary partial disability, among other things. Both HB 311 and SB 135 are set for a hearing this week.

The General Assembly will convene today through Friday, March 1, for legislative days 21 through 25. If you have questions or comments on these bills or any other legislation before the General Assembly this session, please email Christine Butcher Hayes, director of governmental affairs, at christineh@gabar.org. For additional information about the State Bar of Georgia’s legislative program and agenda, to track legislation or to contact the Bar’s legislative team, please visit the Legislative Program page.

Legislative Update, Week 1 (01.22.19)

The 2019 legislative session kicked off on Monday, Jan. 14. House and Senate members took the oath of office down at the State Capitol, including 40 freshmen legislators who will hit the ground running as the General Assembly churns through its 40-day schedule. House members wasted no time re-electing Speaker David Ralston (R-Blue Ridge) to lead the House of Representatives. Shortly after adjourning on Monday, legislators made their way over to Georgia Tech where Gov. Brian Kemp, Lt. Gov. Geoff Duncan, Attorney General Chris Carr and a number of other state constitutional officers were sworn into office.

On Thursday, Gov. Kemp gave his first State of the State address in the House Chamber. The speech highlighted the governor’s early budget priorities, including a $3,000 salary increase for teachers and a 2 percent increase for state employees. Gov. Kemp also emphasized school security, including $69 million in new funding for school security grants and $8.4 million in funding for mental health services for high school students. The governor also plans to appropriate $500,000 as an initial investment to form a Gang Task Force within the GBI.

Following the State of the State address, the governor released his FY 2020 and Amended FY 2019 budgets. The Legislature took Monday for MLK Day and will stand adjourned for the remainder of the week as members attend budget hearings. The Legislature will reconvene on Monday, Jan. 28, for legislative day 5.

With last year’s wave of retirements and a surge of newly-elected members, many committees in the House and Senate are under new leadership. Sen. Jesse Stone (R-Waynesboro) will retain his spot as chairman of the Senate Judiciary Committee. Sen. Jen Jordan (D-Atlanta) will chair the Special Judiciary Committee, replacing former Sen. Curt Thompson. Other notable changes in the Senate include Sen. Ben Watson (R-Savannah) as the incoming chair of the Health and Human Services Committee and Sen. Bill Cowsert (R-Athens) as the incoming chair of the Regulated Industries and Utilities Committee. Rep. Barry Fleming (R-Harlem) was chosen to stand at the helm of the influential House Judiciary Committee and Rep. Chuck Efstration (R-Dacula) will chair the House Judiciary Non-Civil Committee, which hears a wide variety of criminal legislation.  

We plan to keep Bar membership in the know with weekly updates like this one covering legislation that impacts the practice of law. For questions about the legislative session or to plan a lobby day at the State Capitol, please reach out to Christine Butcher Hayes, Director of Governmental Affairs, at christineh@gabar.org.