WILSON v. INTHACHAK

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia



                                                   Decided: December 19, 2023


              S23A1095. WILSON et al. v. INTHACHAK et al.


        WARREN, Justice.

        The Georgia Constitution directs our Court of Appeals to

transfer cases to this Court “[i]n the event of an equal division of the

judges.” Ga. Const. of 1983, Art. VI, Sec. V, Par. V. In this case, the

Court of Appeals equally divided on an issue and transferred the

case to this Court. We conclude that although the Court of Appeals

was equally divided on that one issue within the case, the court was

not equally divided on the disposition of the judgment that was

appealed. Under our precedent, this case does not fall within our

equal division jurisdiction, and we return the case to the Court of

Appeals.
      1. (a) Factual and Procedural Background

      In January 2018, Dorothy Warren, a patient in the emergency

room at Clinch Memorial Hospital, died after Dr. Nirandr

Inthachak, working in his office in a different county, allegedly

negligently misinterpreted her CT scan. Angela Wilson, Warren’s

daughter, sued Dr. Inthachak.

      The trial court granted Dr. Inthachak summary judgment on

two bases. First, the trial court held that Wilson had shown “no

clear and convincing evidence of gross negligence,” and that her

claim thus failed under OCGA § 51-1-29.5, which requires a plaintiff

in “an action involving a healthcare liability claim arising out of the

provision of emergency medical care” to prove “gross negligence” by

“clear and convincing evidence.” 1 The court concluded that OCGA

§ 51-1-29.5 applied to Wilson’s claim—even though Dr. Inthachak



      1 OCGA § 51-1-29.5 (c) says in full: “In an action involving a health care

liability claim arising out of the provision of emergency medical care in a
hospital emergency department or obstetrical unit or in a surgical suite
immediately following the evaluation or treatment of a patient in a hospital
emergency department, no physician or health care provider shall be held
liable unless it is proven by clear and convincing evidence that the physician
or health care provider’s actions showed gross negligence.”
                                       2
was not physically present in the emergency room—because Dr.

Inthachak “interpret[ed] the CT [scan] from the emergency

department and fax[ed] his interpretation to the emergency

department” where Warren was being treated, and Warren was

“emergent,” meaning she needed “emergency medical care.”2

Second, the trial court granted summary judgment in favor of Dr.

Inthachak based on causation, concluding that Wilson had not

shown that “the outcome would have been different” had Dr.

Inthachak provided an allegedly correct interpretation of Warren’s

CT scan.




     2  Specifically, the trial court found that “no jury issue exists as to
whether the patient was emergent under OCGA § 51-1-29.5 [(a)] (5).” OCGA
§ 51-1-29.5 (a) (5) says:
      “Emergency medical care” means bona fide emergency services
      provided after the onset of a medical or traumatic condition
      manifesting itself by acute symptoms of sufficient severity,
      including severe pain, such that the absence of immediate medical
      attention could reasonably be expected to result in placing the
      patient's health in serious jeopardy, serious impairment to bodily
      functions, or serious dysfunction of any bodily organ or part. The
      term does not include medical care or treatment that occurs after
      the patient is stabilized and is capable of receiving medical
      treatment as a nonemergency patient or care that is unrelated to
      the original medical emergency.
                                     3
      (b) The Court of Appeals Opinions3

      Wilson appealed, and all 14 voting members of the Court of

Appeals concluded that the trial court’s grant of summary judgment

was improper on both OCGA § 51-1-29.5 and causation grounds. As

to the first ground, the Court of Appeals divided evenly (7 to 7) on

the question of why summary judgment was improper based on

OCGA § 51-1-29.5. On one side of the ledger, the putative majority

agreed with the trial court that OCGA § 51-1-29.5 could apply in this

case even though Dr. Inthachak was not in the emergency room, but

then disagreed with the trial court’s conclusion that OCGA § 51-1-

29.5 must be applied at the summary judgment stage here and

concluded that summary judgment based on OCGA § 51-1-29.5 was

improper because a fact question existed as to whether Warren was

in need of “emergency medical care.” On the other side of the ledger,




      3 Because the Court of Appeals transferred the case as equally divided,

the proposed opinions from the Court of Appeals are not published. Although
one opinion was styled as the “majority opinion,” and one was styled as the
“dissent,” neither opinion was joined by a majority of the judges. Following the
labels given by the Court of Appeals, we thus refer to them as the putative
majority and putative dissent.
                                       4
the putative dissent concluded that summary judgment based on

OCGA § 51-1-29.5 was improper because the statute cannot be

applied in this case where “Dr. Inthachak examined the CT scans in

the relative quiet of his office,” rather than in an emergency room.

     As to the second ground on which the trial court granted

summary judgment, all 14 judges of the Court of Appeals—all 7 in

the putative majority and all 7 in the putative dissent—agreed that

the trial court erred by concluding that no factual question existed

as to causation. Based on the above analysis, the putative majority

concluded that the trial court’s order granting summary judgment

should be vacated and the case remanded, and the putative dissent

concluded that the trial court’s order should be reversed.

     The Court of Appeals then transferred the case to this Court,

citing our equal-division jurisdiction under Article VI, Section V,

Paragraph V of the Georgia Constitution.              After careful

consideration of the text of the Georgia Constitution, our case law

interpreting the Georgia Constitution, and the briefing and

argument from the parties, we conclude that we do not have equal-

                                  5
division jurisdiction over this case and we return the case to the

Court of Appeals.

      2. Georgia’s Constitution says about the Court of Appeals: “In

the event of an equal division of the Judges when sitting as a body,

the case shall be immediately transmitted to the Supreme Court.”

Ga. Const. of 1983, Art. VI, Sec. V, Par. V. 4 Citing this constitutional


      4  The language directing that the Court of Appeals should transfer
equally divided cases to this Court has remained largely unchanged since it
was introduced in the Georgia Constitution of 1945. See Ga. Const. of 1945,
Art. VI, Sec. II, Par. VIII (“In the event of an equal division of Judges on any
case when the Court is sitting as a body, the case shall be immediately
transferred to the Supreme Court.”); Ga. Const. of 1976, Art. VI, Sec. II, Par.
VIII (“In the event of an equal division of judges on any case when the Court
is sitting as a body, the case shall be immediately transferred to the Supreme
Court.”). See also Elliott v. State, 305 Ga. 179, 184 (824 SE2d 265) (2019)
(explaining “the presumption that the framers of a new constitution are not
only aware of the provisions of the earlier constitution, but when [they] adopt
provisions contained in a former Constitution, to which a certain construction
has been given, [they] are presumed as a general rule to have intended that
these provisions should have the meaning attributed to them under the earlier
instrument.”) (punctuation and citation omitted).
       However, the Georgia Constitutions of 1945 and 1976 contained an
additional provision that expressly granted this Court jurisdiction over equally
divided cases. See Ga. Const. of 1945, Art. VI, Sec. II, Par. IV (“The Supreme
Court shall also have jurisdiction of and shall decide cases transferred to it by
the Court of Appeals because of an equal division between the Judges of that
Court when sitting as a body for the determination of cases.”) (emphasis
supplied); Ga. Const. of 1976, Art. VI, Sec. II, Par. IV (“The Supreme Court
shall also have jurisdiction of and shall decide cases transferred to it by the
Court of Appeals because of an equal division between the judges of that Court
when sitting as a body for the determination of cases.”) (emphasis supplied).

                                       6
provision or its predecessors, the Court of Appeals has transferred,

and this Court has decided, many cases in which the Court of

Appeals was equally divided as to whether the judgment being

appealed should be affirmed or reversed. See, e.g., Mitchell v. State,

205 Ga. 532, 532 (54 SE2d 395) (1949) (explaining that the case was

transferred from the Court of Appeals because the judges “were

equally divided, [three judges] being of the opinion that the

judgment complained of should be affirmed, and [three judges] being

of the opinion that it should be reversed”); Atlanta Newspapers, Inc.

v. Grimes, 216 Ga. 74, 75 (114 SE2d 421) (1960) (“This case comes to

this court because there was an equal division of the Judges of the



See also Mitchell v. State, 205 Ga. 532, 532 (54 SE2d 395) (1949) (“Under article
6, section 2, paragraph 4, of the constitution of 1945, . . . the Supreme Court is
now required to take jurisdiction of the case and decide the questions presented
by the writ of error because the Court of Appeals was unable to render
judgment since the judges of that court, while sitting as a body for the
determination of cases, were equally divided[.]”). Text that expressly grants
this Court jurisdiction over equally-divided cases does not appear in the 1983
Constitution. This Court has not addressed whether the absence of such text
in the 1983 Constitution limits this Court’s equal-division jurisdiction. We
need not decide the issue here, however, because we conclude that, based on
our precedent interpreting the 1983 Constitution, as well as our precedent
interpreting the 1945 Constitution—with its more direct language requiring
this Court to take jurisdiction and decide equally divided cases—we do not
have equal division jurisdiction over this case.
                                        7
Court of Appeals as to the judgment that should be rendered, [three

judges] being for affirmance, and [three judges] being for reversal.”);

Ford Motor Co. v. Conley, 294 Ga. 530, 536 & n.5 (757 SE2d 20)

(2014) (explaining that the Court of Appeals transferred the case

because it “divided equally on the disposition of the appeal,” with

“[f]ive judges vot[ing] to reverse the trial court’s judgment, and a

total of five judges vot[ing] to affirm”).

     But here we do not have an equal division between judges

voting to affirm or reverse the appealed judgment. Instead, all 14

judges agreed that the trial court’s grant of summary judgment

should not be affirmed on either ground given by the trial court for

summary judgment. What they disagreed about was why summary

judgment was not proper on one of those grounds and whether to

“vacate” or to “reverse” the trial court’s judgment. So the question

we must answer is whether this type of disagreement invokes our

equal-division jurisdiction.

     (a) Rodriguez and Related Cases



                                    8
     This Court has never been confronted with precisely this

situation before, but our recent discussion about our equal-division

jurisdiction in Rodriguez v. State, 295 Ga. 362 (761 SE2d 19) (2014),

is instructive. In that case, Rodriguez appealed the trial court’s

denial of her motion to suppress. Rodriguez, 295 Ga. at 362. The

Court of Appeals equally divided on whether the trial court’s

judgment should be set aside—“six judges of the Court of Appeals

were of the opinion that the denial of the motion to suppress should

be affirmed, and six were of the opinion that it should not,” id. at

364-365—but did not transfer the case to this Court.           When

Rodriguez petitioned for certiorari, this Court held that the Court of

Appeals should have transferred the case because it invoked our

equal-division jurisdiction: “[W]hen the full bench of the Court of

Appeals has considered every claim of error that might cause the

judgment of the trial court to be set aside, and when the full bench

is equally divided about whether that judgment must be set aside,

there is an ‘equal division,’ and the case must be transferred to this

Court.” Id. at 364.

                                  9
     Notably, the six Court of Appeals judges voting against

affirming the denial of the motion to suppress disagreed on why and

on whether the judgment should be reversed as opposed to vacated:

“four were of the opinion that the denial should be reversed entirely,

one was of the opinion that it should be vacated and remanded for

further proceedings on the motion, and one did not say whether she

would reverse or vacate, nor did she say what should happen next

in the trial court, only that she dissented from the decision to

affirm.”   Id. at 365.     However, Rodriguez explained that “for

purposes of the Equal Division clause, differences of opinion in this

case about whether the judgment of the trial court should be set

aside as ‘reversed’ or instead as ‘vacated’ are not dispositive,” id. at

365, and treated the judges voting to reverse the judgment being

appealed and the judges voting to vacate the judgment being

appealed as votes on the same side of the judgment. 5 Rodriguez


     5 We emphasize that our treatment of votes for reversal and votes for

vacatur as on the same side of the judgment was necessary to the holding in
Rodriguez that the Court of Appeals should have transferred the case. If we
had not concluded that reversal and vacatur were on the same side of the

                                    10
likewise explained that “differences of opinion in this case among

the six dissenting judges about what ought to happen next in the

trial court [are not] dispositive” for purposes of the Equal Division

clause. Id.6

      In support of this analysis, we cited in Rodriguez three of our

precedents in which this Court held that our equal-division

jurisdiction was not invoked when the question on which the Court

of Appeals was equally divided was not necessarily dispositive to the

outcome of the judgment being appealed: Atlantic Coast Line R. Co.




judgment, the vote in the Court of Appeals would have been 6-5-1 or 6-4-2
(depending on how the vote that merely dissented was counted), and there
would have been no equal division.

      6 The Court of Appeals followed Rodriguez in S-D RIRA, LLC v. Outback

Prop. Owners’ Assn, 330 Ga. App. 442 (765 SE2d 498) (2014), explaining:
       Here, although the majority and the special concurrence received
       six votes each, the whole court agreed on all issues other than what
       rule should be applied to determine the running of the statute of
       limitation. The whole court further agreed, however, that factual
       questions existed as to when the statute began to run and whether
       it should be tolled for any period of time. Both the majority and the
       special concurrence, therefore, concluded that the statute of
       limitation issue should be remanded to the trial court. Thus,
       because there was no division as to how the case should be
       disposed of, the case was not subject to automatic transfer to the
       Supreme Court of Georgia under the equal division rule.
Id. at 468 n.24 (on motion for reconsideration).
                                       11
v. Godard, 211 Ga. 41 (83 SE2d 591) (1954); Atlantic Coast Line R.

Co. v. Clinard, 211 Ga. 340 (86 SE2d 1) (1955); and Ford v. Uniroyal

Goodrich Tire Co., 270 Ga. 730 (514 SE2d 201) (1999).            See

Rodriguez, 295 Ga. at 364.

     In the first of those cases, Godard, this Court returned to the

Court of Appeals a case that had been transferred under the 1945

Georgia Constitution, reasoning that although the judges of that

court were equally divided on whether the trial court’s denial of a

new trial should be affirmed or denied based on “whether the

evidence authorized the verdict,” the court had not made “any

determination” on other potentially dispositive grounds raised in the

appeal. 211 Ga. at 42. We explained that “if, upon consideration it

should be determined there were erroneous rulings requiring the

grant of a new trial, there would be no necessity to pass on the

general grounds of the motion for new trial.” Id. Thus, this Court

held that “the case as it now stands is not subject to be transferred

to this court.” Id.



                                 12
     In the second case, Clinard, which was also decided under the

1945 Georgia Constitution, this Court returned a case to the Court

of Appeals under similar circumstances, explaining that because the

judges of the Court of Appeals were “not equally divided in the case

at bar on all questions presented by the writ of error which would

either require an affirmance or a reversal of the judgments excepted

to, but only as to one of the questions in the case, it necessarily

follows that the Supreme Court is without jurisdiction of the case.”

211 Ga. at 343.

     Finally, in Ford, this Court explained that the Court of Appeals

was not required to transfer the case to this Court under the 1983

Constitution where a majority of the Court of Appeals judges had

voted to reverse the judgment being appealed on one ground but had

equally divided as to whether another issue was also a ground for

reversal. See 270 Ga. at 731 n.4 (“Because the Court of Appeals was

not equally divided on all questions presented, it was not required

that the case be transmitted to this Court for resolution of the



                                 13
joinder issue under [the Equal Division clause].”) (emphasis in

original). 7


      7 There are a few cases in which this Court has assumed jurisdiction

under the 1983 Georgia Constitution—without explaining why—over a single,
potentially (but not clearly) dispositive question on which judges on the Court
of Appeals were equally divided, answered that question, and then remanded
to the Court of Appeals to answer remaining questions. See Garland v. State,
263 Ga. 495 (435 SE2d 431) (1993); Metro. Atlanta Rapid Transit Auth. v.
Leibowitz, 264 Ga. 486, 487 (448 SE2d 435) (1994); Clark v. State, 284 Ga. 354,
356 (667 SE2d 37) (2008). Notably, although Garland appears inconsistent
with Clinard, it cited Clinard for the proposition that this Court should
remand for the Court of Appeals to decide the remaining questions; Leibowitz
then cited Garland, and Clark cited Leibowitz. The issue presented in this
case—whether we have equal-division jurisdiction to decide a case when all
judges on the Court of Appeals agreed that the judgment being appealed could
not stand—was not at issue in those cases, but to the extent that language in
those cases could be read to suggest that the Court of Appeals does not need to
be divided on the disposition of the judgment being appealed before this Court
has equal division jurisdiction, we disapprove such a reading.
      Two other cases applying the 1983 Georgia Constitution—Munroe v.
Universal Health Servs., Inc., 277 Ga. 861 (605 SE2d 928) (2004), and Hoffman
v. Wells, 260 Ga. 588 (397 SE2d 696) (1990)—present a similar situation to
Garland, Clark, and Leibowitz, insofar as this Court retained a case that was
transferred by the Court of Appeals based on equal division on a single issue
in a multiple-issue case. We note, however, that in Munroe and Hoffman, the
single issue was dispositive as to one of the judgments being appealed, and the
remaining issues concerned other appealed judgments. See Munroe, 277 Ga.
at 865 (addressing the equally divided issue of whether summary judgment on
the plaintiff’s negligent hiring/retention claim should be affirmed and
remanding to the Court of Appeals to consider “the trial court’s rulings on other
claims by Munroe”); Munroe v. Universal Health Services, Inc., 270 Ga. App.
320, 320-321 (605 SE2d 928) (2004) (addressing, on remand, the grant of
summary judgment on the plaintiff’s respondeat superior claim and rejecting
the plaintiff’s premises liability claim raised for the first time on appeal);
Hoffman, 260 Ga. at 588-590 & n.1 (explaining that the Court of Appeals was
equally divided on whether the doctor should be granted a new trial on the

                                       14
      (b) Applying Rodriguez

      Examining the division between the judges in the Court of

Appeals presented in this case in light of Rodriguez 8 and the

discussion above of this Court’s precedents construing our equally-

divided jurisdiction, we conclude that we do not have jurisdiction in

this case under Article VI, Section V, Paragraph V of the Georgia

Constitution of 1983. Here, the judgment being appealed was the

grant of summary judgment to Dr. Inthachak. Given that all of the

judges of the Court of Appeals voted to either vacate or reverse the

grant of summary judgment, they all agreed that the grant of

summary judgment could not stand on either ground the trial court

provided, and that it therefore must be set aside. They disagreed



issue of the compensatory damages awarded against him, and addressing the
other issues in the case affecting whether judgments granting the hospital
compensatory damages, the doctor and hospital punitive damages, and the
plaintiff attorney fees should be affirmed). These cases may be distinguishable
from Garland and its progeny in this way. In any event, they do not control
our decision in this case, and we need not decide if this Court correctly
exercised jurisdiction in them.

      8 No party has questioned, let alone asked us to reconsider, the
correctness of our reasoning in Rodriguez or in our precedents upon which
Rodriguez relied.

                                      15
only about why one of the two grounds was faulty.                         This

disagreement affects only “what ought to happen next in the trial

court,” not “whether [the trial court’s] judgment must be set aside.”

See Rodriguez, 295 Ga. at 365.9 And the difference in the Court of

Appeals’s putative judgment line between vacating and reversing

does not convince us that a jurisdiction-invoking equal division

exists. To the contrary, Rodriguez indicates that this division—that

is, of 7 judges voting to vacate and 7 judges voting to reverse the

trial court’s order—is in fact no division at all for purposes of Article

VI, Section V, Paragraph V.10


      9 Specifically, the disagreement affects whether on remand, when the

case goes to the jury, the trial court instructs the jury that it can apply OCGA
§ 51-1-29.5 if it determines that Warren was in need of “emergency medical
care,” or whether the court does not instruct the jury that it may apply OCGA
§ 51-1-29.5 because Dr. Inthachak was not in the emergency room.
       The disagreement does not affect what happens to the appealed
judgment. If the Court of Appeals had not transferred the case to this Court
and instead issued its proposed opinion, the case would have gone back to the
trial court to continue proceedings, and the trial court would not have been
permitted to enter summary judgment on either of the two grounds it relied on
in the summary judgment order that was appealed.

      10 The dissenting opinion asserts that our conclusion today is
inconsistent with this Court’s “explanation of the Equal Division Provision’s
purpose of ensuring that trial judges know what they are to do on remand,”
and cites for this general proposition language in footnote 5 in Rodriguez

                                      16
      Accordingly, we conclude that this case does not invoke our

jurisdiction under Article VI, Section V, Paragraph V of the Georgia

Constitution of 1983, and we return it to the Court of Appeals.

     Case returned to the Court of Appeals. All the Justices concur,
except Boggs, C.J., Peterson, P.J., and Bethel and LaGrua, JJ., who
dissent.




stating that the constitutional provision prevents a trial judge from being put
in the “untenable position” of not knowing “whether the motion to suppress
still stood denied.” See Dissenting Op. 7 (quoting Rodriguez, 295 Ga. at 365
n.5). However, this language, like the rest of Rodriguez, focused on the specific
outcome of the motion to suppress in that case—the judgment being appealed.
And footnote 5 in Rodriguez also says: “any appellate decision must be clear at
the very least about whether the judgment from which the appeal was taken
still stands or instead has been set aside.” 295 Ga. at 365 n.5 (emphasis added).
Nothing in Rodriguez indicates that the Court viewed our equal-division
jurisdiction as being triggered any time the Court of Appeals is divided on an
issue “that must necessarily be reached, and on which the trial court must take
action on remand.” Dissenting Op. 6.
        And here, as explained in footnote 9 above, the trial court is not left in
an “untenable position” as to the judgment appealed, but instead knows that
on remand it cannot grant summary judgment on the two grounds it relied on
in the order that was appealed.

                                       17
     MCMILLIAN, Justice, concurring.

     Although I concur fully in the Court’s decision concluding that

this case does not fall within our equal division jurisdiction, I write

separately to state that I would have retained jurisdiction over this

case by exercising “our longstanding and almost-unlimited certiorari

jurisdiction.” State v. Murray, 286 Ga. 258, 266 (2) (b) (687 SE2d

790) (2009) (Nahmias, J., dissenting) (emphasis in original). See Ga.

Const. Art. VI, Sec. VI, Par. V (“The Supreme Court may review by

certiorari cases in the Court of Appeals which are of gravity or great

public importance.”). The issue on which the Court of Appeals

divided – whether OCGA § 51-1-29.5 (c) applies to a physician who

provides services while not physically within the hospital emergency

department – is one of gravity and great public importance.

However, I fully expect that upon return of the case to the Court of

Appeals, review by the judges now currently sitting on that court,

and issuance of an opinion, the losing party will seek certiorari

review, at which time this Court will have another opportunity to

decide this very important issue.

                                  18
     PETERSON, Presiding Justice, dissenting.

     The majority holds that the Court of Appeals was not equally

divided (and thus we must return this case to that court) even

though half of the judges would hold that the trial court must give a

particular jury instruction on remand, while the other half would

hold that the trial court must not give that instruction. The majority

reaches this conclusion based on a reading of our caselaw that yields

a rule that, for the Court of Appeals to be equally divided under the

Georgia Constitution’s direction that such cases be transferred to us,

the division must be about whether the trial court’s judgment must

be set aside. I agree with the majority’s assessment of which of our

precedents are relevant to this question. But I read those precedents

to yield a different rule: the Court of Appeals is equally divided at

least when there is an even division on an issue that (1) cannot be

avoided and (2) on which the confusing lack of direction the even

division 11 affords puts the trial court in an untenable position on


     11 To avoid confusion, I use “even” division to refer to a split of opinion in

which the Court of Appeals has the same number of judges on opposite sides of

                                       19
remand. Because the issue on which the Court of Appeals was evenly

divided here meets both criteria, I would hold that this case is an

equal division case within the meaning of the Georgia Constitution.

Accordingly, I respectfully dissent.

      The provision of the Georgia Constitution that we apply today

first appeared in the Constitution of 1945 and was carried forward

into the Constitution of 1976 and then into our current Constitution

of 1983. Although the language changed from 1976 to 1983 (and

perhaps in material ways, as the majority flags), the language that

is relevant to the issue the majority decides has remained materially

identical throughout each of the constitutions: “an equal division of

the Judges when sitting as a body…” Ga. Const. of 1983, Art. VI,

Sec. V, Par. V (the “Equal Division Provision”); accord Ga. Const. of

1976, Art. VI, Sec. II, Par. IV (“an equal division between the judges

of that Court when sitting as a body…”); Ga. Const. of 1945, Art. VI,

Sec. II, Par. IV (“an equal division between the Judges of that Court


an issue (whether or not qualifying for transfer to this Court under the
Constitution), and “equal” division to refer only to that subset of “even” division
cases that qualify for transfer.
                                        20
when sitting as a body…”). Accordingly, precedent on what

constitutes an equal division under the predecessor provisions may

inform the meaning of the current provision on that point. See

Elliott v. State, 305 Ga. 179, 184-87 (II) (B) (824 SE2d 265) (2019).

     The majority relies on four of our precedents, two of which

precede the adoption of the Constitution of 1983. The two pre-1983

cases both apply the same rule: a case in which the judges of the

Court of Appeals are evenly divided on an issue does not constitute

“an equal division” if other issues remain undecided and a decision

on those issues might make reaching the evenly divided issue

unnecessary. In Godard, although our Court included language that

could be read as the majority does, the holding was the rule I see:

the Constitution “does not provide for a transfer by [the Court of

Appeals] to this court of any case where there is an equal division

between the judges of the Court of Appeals on an isolated question

in the case, and there remain for consideration and decision

assignments of error whereby, if error be found that required a

judgment of reversal, a consideration of the isolated question would

                                  21
become immaterial.” Atl. C. L. R.R. v. Godard, 211 Ga. 41, 42 (83

SE2d 591) (1954). Because the Court of Appeals in Godard had left

undecided issues “where if, upon consideration, it should be

determined there were erroneous rulings requiring the grant of a

new trial, there would be no necessity to pass on the [evenly-divided

issue],” id., the Court held that “the case as it now stands is not

subject to be transferred to this court.” Id.12

     We applied the same rule the following year in Clinard. See

Atl. C. L. R. Co. v. Clinard, 211 Ga. 340 (86 SE2d 1) (1955). There,

the Court of Appeals was evenly divided on the general grounds and

a general demurrer and did not address any of the special grounds

raised that could have decided the case. Id. at 342-43. We held that

Godard controlled and the case was not equally divided under the

Constitution. Id.




     12 After the Court of Appeals proceeded to decide the other issues in a

way that made it necessary to reach the evenly-divided issue, we accepted and
decided the case. See Atl. C. L. R. Co. v. Godard, 211 Ga. 373 (86 SE2d 311)
(1955).
                                     22
     This was the state of play when the Equal Division Provision

was carried forward into the Constitutions of 1976 and 1983. In

1999, we noted in dicta (and without the question being before us)

that a previous decision of the Court of Appeals had not been equally

divided because “the Court of Appeals was not equally divided on all

questions presented…” Ford v. Uniroyal Goodrich Tire Co., 270 Ga.

730, 731 n.4 (514 SE2d 201) (1999). This imprecise dicta cannot be

read to change the Godard-Clinard rule that focuses on whether the

Court of Appeals decided all the issues that would render

unnecessary a decision on an evenly-divided issue. This is especially

so given that the Ford Court cited Clinard as the only case

supporting its conclusion.

     Finally, we arrive at Rodriguez, on which the majority rests

most of its analysis. See Rodriguez v. State, 295 Ga. 362, 363-65 (1)

(761 SE2d 19) (2014). The real question in Rodriguez was whether

six votes dissenting from a six-judge opinion to affirm should be

aggregated to yield an equal division, even though at least one of the



                                 23
six dissenters voted to vacate instead of reverse. See id. We held that

it was proper to aggregate all of the dissenting votes. Id.

     I acknowledge that Rodriguez focused on whether the Court of

Appeals’s judgment was equally divided, not merely issues that did

not change the judgment, and so Rodriguez included considerable

language that was judgment-focused. But we cannot read that

language in a vacuum; we have to read it in the context of what issue

was actually present in Rodriguez for our decision. And that issue

was only whether a vote to vacate could be aggregated with votes to

reverse for purposes of yielding an equal division. The holding that

such aggregation was proper tells us nothing about what other

evenly divided issues also count as equal division.

     Moreover,    Rodriguez’s   discussion    of   our   equal-division

precedent does not support the majority’s conclusion. Rodriguez said

only that:

     We have addressed the meaning of the Equal Division
     clause before, and under our precedents, when the full
     bench of the Court of Appeals has considered every claim
     of error that might cause the judgment of the trial court
     to be set aside, and when the full bench is equally divided

                                  24
     about whether that judgment must be set aside, there is
     an “equal division,” and the case must be transferred to
     this Court.

Rodriguez, 295 Ga. at 364 (1) (footnote and citation omitted). While

this statement described one set of circumstances establishing an

equal division, it did not purport to hold that an equal division exists

only under those circumstances. So far as I can tell, we have never

construed the equal-division clause so narrowly. Until today.

     This conclusion is not compelled by any precedent. It is not

compelled by any constitutional text. And it is inconsistent with our

explanation of the Equal Division Provision’s purpose of ensuring

that trial judges know what they are to do on remand. See

Rodriguez, 295 Ga. at 365 n.5 (“If [the Court of Appeals’s] split

decision were the last word, the trial judge could not possibly be

expected to know whether the motion to suppress still stood denied,

and in such circumstances, the trial judge could not reasonably be

expected to ‘carry into full effect in good faith’ the decision on appeal.

The Equal Division [Provision] keeps a trial judge from being put



                                   25
into such an untenable position.” (quoting OCGA § 5-6-10;

punctuation omitted)).

     Allowing the two competing Court of Appeals opinions to stand

as the final word here puts the trial court into an untenable position

on remand. The opinion authored by Judge Markle concludes that

the applicability of the higher burden of proof set forth in OCGA §

51-1-29.5 (c) depends on whether the jury finds that Dr. Inthachak

provided emergency medical care to Dorothy. In contrast, the

opinion authored by Presiding Judge McFadden would hold as a

matter of law that OCGA § 51-1-29.5 (c) does not apply in this case.

Therefore, even though Presiding Judge McFadden’s opinion does

not address jury instructions specifically, it would preclude the trial

court from instructing a jury to apply that burden of proof in this

matter — regardless of whatever contrary arguments Dr. Inthachak

might raise in the future. These two positions cannot be reconciled,

and cannot be avoided by deciding the case on some other as-yet-

undecided ground.



                                  26
      Because neither text nor precedent requires the majority’s

conclusion, and that conclusion will inevitably place trial courts in

untenable positions, 13 I respectfully dissent.

      I am authorized to state that Chief Justice Boggs, Justice

Bethel, and Justice LaGrua join in this dissent.




      13 The trial court in this case, however, need not be placed in such a

position. If on remand the Court of Appeals again finds it necessary to take the
case whole court, that court will presumably have a fifteenth judge to help
break any tie. Two other points also warrant mention.
       First, the majority notes that removal of jurisdiction-related language
from the 1983 version of the Equal Division Provision might have stripped us
of jurisdiction to decide even properly-transferred cases. I agree that the
removal of that language is curious, and we usually presume that material
changes to text result in a change in meaning. But I am skeptical that
application of that presumption would be appropriate here, given another
critical presumption that all provisions of the Constitution have meaning. The
Equal Division Provision would be pointless and futile if it directed the Court
of Appeals to transfer to us cases over which we would then have no
jurisdiction. But despite my skepticism, I acknowledge that the question would
be tricky, and I express no firm conclusion about it; this dissent addresses only
the majority’s limited holding.
       Second, I agree with Justice McMillian that the substantive question on
which the Court of Appeals is equally divided is a question of gravity and great
public importance. But for two reasons, I do not join her in supporting
certiorari. First, I obviously disagree that certiorari is necessary because I view
this case as properly before us under the Equal Division Provision. And second,
the importance of having the question decided does not necessarily mean that
it is important that we be the court to decide it. The Court of Appeals will now
decide the question. Absent serious error in doing so, in my view certiorari will
likely not be warranted following that opinion.
                                        27