Steven Leibel v. Mary Johnson

FIRST DIVISION ELLINGTON, C. J., ANDREWS, P. J. and DOYLE, P. J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

February 21, 2013

In the Court of Appeals of Georgia A10A1047. JOHNSON v. LEIBEL. DO-048 A10A1048. LEIBEL v. JOHNSON. DO-049

DOYLE , Presiding Judge.

In Leibel v. Johnson, 291 Ga. 180 (728 SE2d 554) (2012), the Supreme Court reversed the judgment of this Court in Division 2 of our decision in Case No. A10A1048 in Johnson v. Leibel, 307 Ga. App. 32 (703 SE2d 702) (2010).1

Because the Supreme Court only addressed one of the divisions in our opinion, we are required to (1) 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) enter an

1 The Supreme Court did not address the single enumeration in Case No. A10A1047 (Division 1) or the remaining divisions of Case No. A10A1048.

appropriate disposition with regard to those portions that are consistent with the issues addressed and considered by the Supreme Court.2

After so doing, we find that Divisions 1 (Case No. A10A1047) and Divisions 3-6 (Case No. A10A1048) are consistent with and were not affected by the Supreme Court’s decision, and thus remain in effect. Division 2, however, was reversed by the Supreme Court. Accordingly, Division 2 of our opinion is vacated, the judgment of the Supreme Court is hereby made the judgment of this Court for Division 2, and the judgment of the trial court denying Leibel’s motion for judgment notwithstanding the verdict is reversed. The case is remanded for a new trial consistent with the opinion of the Supreme Court.

Judgment reversed in both cases. Ellington, C. J., and Andrews, P. J., concur.

2 Wiggins v. State, 279 Ga. App. 901, 901-902 (633 SE2d 381) (2006), citing Shadix v. Carroll County, 274 Ga. 560, 563-564 (554 SE2d 465) (2001).