The Life Cycle of Precedent in the Court of Appeals: Part I

by Eric J. Marlett

An analysis of a Georgia Court of Appeals case, regarding its status as binding precedent, consists of two fundamental components: (a) whether, in the first instance, at the time the Court’s opinion issued, the case constituted a binding precedent; and (b) whether the case has since been overruled or disapproved, and thus can no longer be followed for at least one principle of law.

Article VI, Section V, Paragraph III of the Georgia Constitution provides that “the decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.” Difficulties arise, however, when, either explicitly or implicitly, decisions of the Court of Appeals are inconsistent with each other.

Chief Judge Carley, in a special concurrence in Dollar v. Dep’t of Human Res.,1 identified the basic, and significant, issue for the Court of Appeals, namely that

[w]hen this Court is faced with previous decisions of this Court in apparent conflict with each other, it cannot automatically rely upon the latest decision as can the Supreme Court, because an appeal filed in this Court is usually considered and resolved by a division of three judges, while the Supreme Court always sits en banc.2

With regard to the first leg of the analysis, i.e., the determination as to which decisions of the Court of Appeals are to be considered binding precedent when issued, Rule 33(a) of the Court of Appeals controls. If it is a decision of a three judge panel, it is binding precedent if, and only to the extent, that all three judges concur fully in the judgment and everything said in the opinion.3 If there is any part of the opinion in which all three judges do not fully concur, that part of the opinion is considered physical precedent only, and has no precedential value beyond its possible use as persuasive authority.4 Until recently, if there was a dissent among the panel, the next panel and a seventh judge would participate, or, in some cases, the full Court, and in those instances, a full concurrence of a majority was needed for the decision to be considered binding precedent.5

However, due to recent legislative changes, the Court of Appeals was expanded to fifteen judges this year, and the rules regarding the establishment and overruling of precedent are actually still in the process of being developed. The new statute eliminates the old seven judge panels in the event of a dissent, and instead grants to the Court of Appeals the power to “provide by rule for certain cases to be heard and determined by more than a single division”.6 In such cases, the statute requires nine judges for a quorum, but otherwise leaves the procedural details to the Court of Appeals.7 The Court of Appeals recently announced that its new rules would be released in the near future, but in the meantime, the Court has clarified, by way of operating procedures adopted effective July 1, 2016, that in the event of any dissent on a panel, the next two full divisions of the Court, for a total of nine judges, will participate, and in any case involving the overruling of a prior decision, the full fifteen judge Court will participate.8 Although the new publicly released operating procedures do not specify, presumably the existing rule remains in effect that a majority of a nine judge panel or the full Court will constitute binding precedent.9

The second leg of the analysis is the determination as to whether a case has been overruled or disapproved. Until recently, this was governed, insofar as the effect of the decisions of the Court of Appeals on each other, by statute, as set forth in former O.C.G.A. § 15-3-1(d) (2015), which was enacted in its most recent form in 1996 (when the Court expanded from nine judges to ten), and which provided that

[i]t being among the purposes of this Code section to avoid and reconcile conflicts among the decisions made by less than all of the Judges on the court and to secure more authoritative decisions, it is provided that when two divisions plus a seventh Judge sit as one court the court may, by the concurrence of a majority, overrule any previous decision in the same manner as prescribed for the Supreme Court. As precedent, a decision by such court with a majority concurring shall take precedence over a decision by any division or two divisions plus a seventh Judge. A decision concurred in by all the Judges shall not be overruled or materially modified except with the concurrence of all the Judges.10

To break that down, essentially, the statute gave authority for a seven judge panel of the Court of Appeals to overrule any decision of a three judge panel, or any other seven judge panel. Although not stated explicitly, a full court, twelve judge decision, could overrule any prior decision of the Court of Appeals, and only a full court could overrule a prior full court decision. Moreover, if a prior full court decision was unanimous, it could only be “overruled or materially modified” by another unanimous, full court decision.

The 2016 legislative changes completely eliminated the statutory requirements of former O.C.G.A. § 15-3-1(d) (2015), which now states simply that “The Court of Appeals shall provide by rule for the establishment of precedent and the manner in which prior decisions of the court may be overruled.” While those rules have not yet been released, it is clear from the recently implemented operating procedures that the new nine judge panels would not be able to overrule prior precedent, as the full fifteen judge Court must now participate. Again, although not specified, presumably it remains the case that a majority of the full Court can overrule a prior decision, but it is not clear if the old statutory rule requiring a unanimous full court decision to overrule a prior unanimous full court has been, or will be, carried forward in the new rules.

In practice, although the old statute may have provided for it, the overruling of prior precedent by a seven judge panel, rather than the full court, was a rare, if not non- existent, occurrence. The reality was that when any judge of the Court of Appeals sought to overrule prior precedent, the full court would consider it. In fact, any draft opinion proposing to overrule a prior case would be circulated first to the author of the prior case, and then to any judges who concurred in that prior decision, if they were still on the bench, for them to review, analyze and vote on it, before even being sent to the remainder of the three judge panel to which the case was assigned, and then through the normal decision chain of each remaining judge on the Court. One of the main rationales for always submitting a decision to overrule to the whole court, rather than utilizing a seven judge panel, was to avoid a situation where the author of the prior decision, or a judge who concurred in that decision, was not on the seven judge panel reconsidering the holding in that decision, and would therefore ultimately be excluded from participating in the vote to overrule the case. This informal practice has now been formally implemented in the new operating procedures of the Court, which now require any overruling of a prior decision to be considered by the full Court, and the new rules, once released, will undoubtedly carry this forward.

It is pursuant to these two basic principles then, the authority to issue binding precedent, and the authority to change binding precedent, that the jurisprudence of the Court of Appeals grows and alters over time.

An interesting, recent example of the operation in practice, and the implications, of these principles, is the 2014 case of S-D RIRA, LLC v. Outback Prop. Owners’ Ass’n.11 That case involved the question of whether an ongoing use of property in violation of restrictive covenants can give rise to multiple causes of action, or only one cause of action, on the part of the owners’ association to enforce the covenants, and consequently whether the statute of limitation begins to run upon each use of the property,  or only upon the owner’s first use of the property in violation of the covenants.12 Two prior cases, Black Island Homeowners Assn. v. Marra13 in 2003, and Marino v. Clary Lakes Homeowners Assn.14 in 2013, both of which were three judge panel decisions, had held that where a covenant violation was based on ongoing conduct, the statute of limitation began to run on a cause of action from each instance of such conduct.15 In contrast, a violation based on a “permanent fixture” could only be enjoined within two years of when that fixture was placed on the property.16

In S-D RIRA, the full court unanimously concurred in the judgment, which, in relevant part, involved remand to the trial court for further factual determination as to the accrual of the statute of limitation17, but the path to that unanimous result was fascinating. The majority opinion consisted of five Divisions, with the vote being 11-1 for the first four Divisions, and 6-6 on the fifth Division.18  Thus, as issued, the opinion in S-D RIRA constituted binding precedent under Rule 33(a) as to Divisions 1 through 4, but not as to Division 5, which failed to obtain the vote of a majority of the Court.

In that fifth Division of the otherwise majority opinion, six judges held that the “continuing violation” theory, which was applied in prior case law, was incorrect, and accordingly voted to overrule Black Island and Marino.19 The remaining six judges joined in a special concurrence in which they agreed that the instant case needed to be remanded for further factual determination, but stated that this was because the violation at issue was really a “permanent fixture”, and so the “continuing violation” rule did not apply.20 In their analysis, the six specially concurring judges concluded that Black Island and Marino should not be overruled, however, only five of those judges went so far as to say that those prior cases had been correctly decided.21

This split in the fifth Division, however, was not expressly acknowledged in the original opinion, and, in fact, the majority states, as to Black Island and Marino, without qualification, that “those cases are hereby overruled”.22 When those cases are now Shepardized, they are actually identified as having been overruled. On motion for reconsideration, however, the Court of Appeals clarified the effect of its ruling in Division 5 of S-D RIRA, noting that because only six judges, and not a majority of the Court, voted to overrule Black Island and Marino, Division 5 effectively only “advocated overruling” those prior cases, and “[t]he continuing violation theory announced in Black Island and applied in Marino, therefore, remains good law.”23

S-D RIRA is thus not only an intriguing example of the legal principles discussed in this article, but is furthermore an excellent reminder of the importance of careful reading and analysis, particularly with regard to opinions that address the overruling of prior precedent.24 It is also an indication of some of the complexities that arise when jurisprudence undergoes change, or even when a change is considered, but fails to receive sufficient votes. In the case of S-D RIRA, the binding principles of law did not, in fact, change, but a review of that case confined only to the language in the majority opinion, or even a reliance on Shepard’s, would not reveal the full picture.

In a forthcoming issue of this newsletter, Part II of this article will explore in more depth the intricacies inherent in our system of creating and overruling judicial precedent.

Such intricacies may manifest themselves in those scenarios where there is an apparent conflict in binding authority, but no express overruling, giving rise to a debate as to whether the authorities can be distinguished, whether there has been an implicit overruling, or whether there should now be an explicit overruling, as well as in those circumstances where a case has overruled prior precedent, and then has, itself, been subsequently overruled, effectively reinstating former law. In addition, Part II will also address the distinction between overruling and disapproving, the role of the Supreme Court of orgia, the effect of changes in statutory law, and the infrequently used, though valuable, “concurrence dubitante”.

It can be vitally important to recognize and determine when precedent is, and remains, binding, and when it is not, so be sure to gain that understanding and use it to its full advantage. 

Eric J. Marlett is a senior associate with McGahren, Gaskill & York, LLC, a general practice litigation and transactional firm with offices in Gwinnett County. Mr. Marlett is a graduate of Georgia Tech, New York Law School, and Goizueta Business School at Emory University, and focuses his practice primarily on civil litigation and appeals.


1     Dollar v. Dep’t of Human Res., 196 Ga. App. 698, 396 S.E.2d 913 (1990) (Carley, C.J., concurring specially)

2 Id., at 702.

3 Rule 33(a), Georgia Court of

4 See Id.; see also, Chaparral Boats, Inc. v. Heath, 269 App. 339, 349-50, 606 S.E.2d 567 (2004) (Barnes, J., concurring specially).

5 Id.; see also, former O.C.G.A. § 15-3-1(c)(1) and (2) (2015).

6 O.C.G.A. § 15-3-1(c)(2) (2016).

7 Id.


9 The Court has indicated that it intends to implement new operating procedures no later than December Term 2017, which would allow for 2-1 panel decisions without having to go to nine judges, but any such 2-1 decision would constitute physical precedent only. The Court is also considering procedures that would permit a party to request rehearing en banc. Id.

10 Former O.C.G.A. § 15-3-1(d) (2015). The language of this statutory section originated in 1945, at a time when the Court of Appeals consisted of six judges. In that original version, a majority of the whole court could only overrule a panel decision where there was not a full concurrence by the panel judges. A supermajority of five judges was needed to overrule a unanimous panel decision, and a unanimous full court decision could only be overruled by a unanimous full court. The statute did not materially change when the Court expanded to seven judges in 1960, other than to clarify that a prior six judge, unanimous decision could now only be overruled by the full court of seven judges. When the Court expanded to nine judges in 1961, the requirement of five judges to overrule remained, but this now constituted a simple majority, and was sufficient to supersede any prior decision, other than a unanimous full court decision, which continued to require the concurrence of all the judges.

11 S-D RIRA, LLC v. Outback Prop. Owners’ Ass’n, 330 App. 442, 765 S.E.2d 498 (2014). For a similar example, see also, Travis Pruitt & Assocs., P.C. v. Hooper, 277 Ga. App. 1, 625 S.E.2d 445 (2005).

12 See S-D RIRA, LLC v. Outback Prop. Owners’ Ass’n, 330 Ga. App. at 457-69.

13 Black Island Homeowners Assn. v. Marra, 263 App. 559, 588 S.E.2d 250 (2003).

14 Marino v. Clary Lakes Homeowners Assn., 322 Ga. 839, 747 S.E.2d 31 (2013).

15 S-D RIRA, LLC v. Outback Prop. Owners’ Ass’n, 330 App. at 457-58.

16 Id.

17 Id., at 461-63.

18 Id., at 463.

19 Id., at 457-63 & 468.

20 Id., at 463-68.

21 Id., at 467-68.

22 Id., at 460.

23 Id., at On May 11, 2015, the Supreme Court of Georgia denied certiorari in a 4-3 decision (Case No. S15C0643), and thus S-D RIRA, Black Island and Marino will stand, as they are, unless and until the issue is revisited in a future case.

24 Although an even split on the previous twelve judge Court was admittedly far more likely to happen, the currently constituted fifteen judge Court will not necessarily be immune from this issue, as the new operating procedures do permit the consideration of overruling precedent even if one or more judges are disqualified, as long as at least nine judges participate.