Fulton County Board of Tax Assessors v. National Biscuit Co.

BARNES, Judge,

concurring specially.

Although I concur fully in all that is said in the majority opinion, I write separately to address Presiding Judge Andrews’s comments in his special concurrence.

They suggest that an opinion that is physical precedent only can have no effect, precedential, persuasive, or otherwise, and need not be disapproved unless apparently, as in this case, the trial court has relied upon the physical precedent. Even though the statutory law may contravene the division of Gwinnett County Bd. of Tax Assessors v. Ackerman/Indian Trail Assn., 198 Ga. App. 723 (402 SE2d 794) (1991), the history of this case demonstrates that, regardless of its precedential value or legal correctness, it has the capacity to confuse trial courts. Therefore, a clear statement showing the correct status of the case is warranted.

Unfortunately, opinions that are merely physical precedent are frequently cited as authority, even binding authority. For example, Anderson v. Cayes, 278 Ga. App. 592, 595, n. 1 (630 SE2d 441) (2006), cited Brown v. Baker, 197 Ga. App. 466, 469 (4) (398 SE2d 797) (1990) (physical precedent only), as authority and a footnote stated that “[w]hile Baker is physical precedent only, one judge having concurred in the judgment only, we have cited it with approval and without comment as to its precedential value on several occasions. [Cits.]” Brown v. Baker has been cited as authority numerous times, but in only two cases, including Anderson v. Cayes, did the opinion expressly note that the case was physical precedent only. In the other cases, the authors merely cited Brown v. Baker without noting that it was not binding precedent. In the same manner, Bruno’s Food Stores v. Taylor, 228 Ga. App. 439, 442 (491 SE2d 881) (1997), also has been cited as authority numerous times without notation that it is only physical precedent even though no judge concurred in what appears to be a majority opinion.

These physical precedent only cases seep into our case law and are given precedential status even by the judges of this court, who should know better, and are relied upon by the trial courts, who may not. Therefore, so that the citator systems will show the proper *888status of the case, physical precedent cases should be disapproved when appropriate.

Decided March 24, 2009. Carmen R. Alexander, for appellant. Brock E. Perry, for appellee.

The final lines of Presiding Judge Andrews’s special concurrence suggest that giving physical precedent only cases status as even persuasive authority is somehow not allowed. To do that, however, would have the unusual result of placing decisions of this court in a lesser status than decisions of federal courts, McKeen v. Fed. Deposit Ins. Corp., 274 Ga. 46, 48, n. 1 (549 SE2d 104) (2001); the Restatement of Torts, J.C. Lewis Motor Co. v. Simmons, 128 Ga. App. 113, 114-115 (1) (195 SE2d 781) (1973); our Attorney General’s opinions, Wheeler County Bd. of Tax Assessors v. Gilder, 256 Ga. App. 478, 482 (2) (568 SE2d 786) (2002); Comments to the UCC, see Sun v. Mercedes Benz Credit Corp., 254 Ga. App. 463 (562 SE2d 714) (2002), and many other kinds of nonbinding precedent, an unusual result indeed.