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Summary Judgment Granted for Law Firm In Suit Arising from Commercial Real Estate Deal
Michele Jones and Joe Kingma represented a law firm that had closed the sale of a 342-acre tract in north Georgia. The purchaser, who had planned to create a large residential development, learned that an industrial waste landfill had been concealed on the property and sued the seller. The seller third-partied in Michele and Joe's client claiming that an escrow agreement and closing instructions had been violated. The purchaser's and the seller's cross-summary judgment motions were denied, but the law firm's motion, including a claim for indemnification from the seller, was granted. The seller has appealed so stay tuned.
Attorney Profiles: Michele Jones Joe Kingma
Directed Verdict on ADA Claim
On June 1-5, 2009, Adam Appel and Marquetta Bryan represented a public entity in an ADA discrimination trial in Federal Court in Augusta, GA. The Plaintiff, the former CEO of a Mental Health, Mental Retardation and Substance Abuse Center, alleged among other things, that his employer terminated him because of an impairment, Alcoholism, in violation of the American's With Disabilities Act. The 8 Member board terminated its CEO while he was on leave seeking in patient treatment for his alcoholism. The plaintiff presented evidence at trial that he was a "high functioning" alcoholic, but claimed that the Board members "regarded him as disabled" under the ADA based on his leave request and that after he requested medical leave for his alcoholism, the board decided to terminate him. While the 8 member board did terminate the CEO during his leave, the Board presented evidence that the termination was for reasons unrelated to the CEO's alcoholism. The Board also presented evidence that it did not regard the CEO as being disabled from his job, but simply that his job performance was putting the Center's funding in jeopardy. Five of the Board members testified during the 5 day trial. The CEO also sued the public agency for breach of contract, which claim was defended by the agency's personal counsel. After the close of all evidence, the federal court judge granted the public agency's Rule 50 Motion for Judgment as a Matter of Law on the ADA claim only, which is the only claim Mr. Appel and Mrs. Bryan defended at trial.
Attorney Profiles: Adam Appel Marquetta Bryan
Supreme Court Victory in Bad Faith Case
Dave Root and Cheryl Shaw won a unanimous decision in the Georgia Supreme Court on behalf of an insurer accused of bad faith failure to contribute to a settlement. The insured was sued for wrongful death and its carrier refused to pay as much as the insured wanted it to pay at mediation. The carrier offered $200,000, but would not offer more, citing what it believed were viable liability defenses of the insured. The insured thus contributed its own funds to the settlement, and sought to recover approximately $750,000 from its carrier on a bad faith theory. The Supreme Court held that an excess judgment was a prerequisite to the claim, and denied the insured's claim. Trinity Outdoor, LLC v. Central Mutual Insurance Company, ___ Ga. ___ (S09Q0605, decided June 1, 2009).
Attorney Profiles: Dave Root Cheryl Shaw
Defense Verdict in Plastic Surgery Malpractice Case
On May 6, 2009, lead counsel, Ashley Sexton, together with Wade Copeland obtained a defense verdict in a plastic surgery malpractice case in Fulton County. Plaintiff alleged that the defendant surgeon negligently performed a breast lift and augmentation. She contended that the size of implants used and the technique used to lift the breasts breached the standard of care and resulted in rippling around the areola, unsuccessful lift and an otherwise poor result. The trial judge, over objection, allowed evidence of the surgeon's subsequent, unrelated license suspension. Nevertheless, the jury found in favor of the plastic surgeon on the basis that the procedures performed and their attendant risks were explicitly discussed with and consented to by the Plaintiff. The jury also found that the surgeon's plan and execution of that plan were within the standard of care.
Attorney Profiles: Ashley Sexton Wade Copeland
Gary Lovell Featured in Medical Malpractice Article
Gary Lovell was quoted in the May 25, 2009 issue of South Carolina Lawyers Weekly in an article regarding South Carolina's low rate of disciplinary actions against doctors. Click here to read the article.
Attorney Profile: D. Gary Lovell, Jr.
Complaint Against Accountant Dismissed
John Rogers defended a CPA on a complaint filed with the State Board of Accountancy. The taxpayer claimed John's client failed to tell her she would have to file a California tax return to report income from the sale of some commercial property out in California. John's response showed the taxpayer's claim was not believable. Contemporaneous notes indicated that the CPA had discussed the California filing requirement. Furthermore, California law allows taxpayers to appeal penalties, and the taxpayer never appealed. If she and her new accountant really believed John's client was at fault, they would have asked him to admit wrongdoing as part of an appeal to the California Franchise Tax Board. Two weeks after receiving John's response, the Enforcement Committee of the State Board dismissed the complaint.
Attorney Profile: John Rogers
Quick Reference Guide
The 2009 Carlock Copeland Quick Reference Guide to Georgia Law is now available. Please contact us for your free copy at sredwine@carlockcopeland.com
Please note whether you want to be emailed the PDF version, or if you would like to receive the laminated hard copy by mail.
Suit Against Receiver Dismissed
Joe Kingma, John Rogers, and Andrew Eaton successfully obtained dismissal of a federal lawsuit against a receiver. Carlock Copeland's client is the court-appointed receiver for three large truck stops, which had allegedly been operating as a racketeering enterprise. Following the receiver's threats to foreclose on a security deed, the new operators sued in federal court, claiming the receiver had wrongfully seized their property. On less than 24 hours' notice, Joe Kingma flew to Brunswick and blocked the plaintiffs' efforts to obtain an injunction. Meanwhile, back in Atlanta, Andrew Eaton took the lead on drafting a motion to dismiss the plaintiffs' claims with John Rogers contributing as well. The Court dismissed the lawsuit before the receiver ever had to incur the expense of discovery. The plaintiffs have appealed, so stay tuned for what could be a reported decision from the Eleventh Circuit.
Attorney Profiles: Joe Kingma John Rogers Andrew Eaton
Carlock Copeland Quarterly Newsletter, Spring 2009
Volume 6 Issue 2: Spring 2009
Articles in this issue include:
- Other Claims or Otherwise - When Does a Third Party Reimbursement Make
An Insured Underinsured?
- Spoilation In A Medical Malpractice Case: Thoughts To Ponder And SomeWords
To The Wise
- Stimulus Bill Includes Additional HIPAA Privacy Regulations
- Time Limitations Applicable to Construction Claims
- East Meets West And Claims Against Attorney Ensues
- Georgia Super Lawyers and Rising Stars Honorees
Click here to download the newsletter in its entirety. To subscribe to the newsletter, or to have your name included on our firm mailing list, click here.
Notice: The Carlock Copeland Quarterly is a periodic publication of Carlock, Copeland & Stair, LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have.
Defense Verdict in Dental Malpractice Case
Doug Smith obtained a defense verdict in a dental malpractice case on April 29, 2009. Doug represented a dental group in Kennesaw, GA. which had been sued by a patient via respondeat superior. The patient alleged one of the Group's dentists had improperly diagnosed and treatment planned her diseased mouth and that as a result of poor treatment, she underwent months and months of pain and eventually lost her front seven teeth. The jury found in favor of the Group believing that although the treatment plan was not the best option, the plaintiff had been fully informed of the risks of the plan and minimal potential for success and had assumed the risks involved.
Attorney Profile: Doug Smith
Legal Malpractice - Motion to Dismiss granted
David Overstreet and Andrew Countryman prevailed on a Motion to Dismiss a legal malpractice case in Richland County, South Carolina. Plaintiff sued his deceased father's attorney alleging undue influence and a variety of other claims after Plaintiff's father failed to leave any significant estate holdings to him. The Court held that the Plaintiff was a third party to whom the attorney owed no duty and that no other basis existed to support a cause of action for legal malpractice against the attorney.
Attorney Profiles: David Overstreet Andrew Countryman
Developments in Accounting Malpractice
John C. Rogers and Lindsey P. Hettinger authored "Developments in Accounting Malpractice" in "Recent Developments in Law Governing Professionals', Officers', and Directors' Liability" 44:2 Tort Trial & Insurance Practice Law Journal. Winter 2009. Click here to read the article.
Attorney Profiles: John C. Rogers Lindsey P. Hettinger
Defense Verdict - Medical Malpractice/Wrongful Death
Dan McGrew and Christina Wall recently obtained a defense verdict on behalf of their client, a general surgeon, in a medical malpractice/wrongful death case in Gwinnett County. Plaintiffs in the case alleged a failure to diagnose and properly treat an infected pancreatic pseudocyst. Dan and Chris demonstrated to the jury that the patient had severe pancreatitis and that their client properly assessed and treated the patient during each of her five hospital admissions for pancreatitis and related complications. After a week of testimony and evidence from renowned experts presented by the defense on appropriate surgical treatments for pancreatitis and related complications, the jury returned a defense verdict for Dan and Chris' client.
Attorney Profiles: Dan McGrew Chris Wall
DRI Feature Article of the Week
Eric Frisch and Molly Barrett's article, "Excluding the Late-Identified Expert Witness," was the feature article for the week of April 22, 2009 in The Voice, the Defense Research Institute online newsletter. Click here to read the article.
Attorney Profiles: Eric Frisch Molly Barrett
Defense Verdict in Medical Malpractice Wrongful Death Case
Wade Copeland and Ashley Sexton represented two nephrologists in a week long wrongful death case tried in Cobb County the week of March 30. The 64 year old decedent entered the hospital due to problems with congestive heart failure. She also had Type II diabetes which was treated with oral medication. Lab tests in the hospital ordered by the doctors revealed severe low blood sugar which eventually led to her death, but the nursing staff failed to notify the doctors. The plaintiff's claimed that the doctors should have ordered more frequent testing and that the doctors failed to take steps to personally review the lab results. The defense was supported by testimony from experts in internal medicine, endocrinology and nursing with the basic defense being that the appropriate tests were ordered and that the failure to follow up was not the responsibility of the doctors. The nurses and hospital were not named in the case and the Statute of Limitations had run as to them. The jury deliberated for 6 hours before returning a verdict in favor of both doctors.
Attorney Profiles: Wade Copeland Ashley Sexton
Court of Appeals Affirms Summary Judgment in Tortious Interference Claims
Michele Jones and Joe Kingma represented three defendants sued for allegedly interfering with a psychologist's business. The Psychologist alleged that the defendant's wrongful actions had forced him from private practice and caused his discipline by the Georgia Psychological Association and the State Board of Examiners. The trial court granted summary judgment and the Georgia Court of Appeals affirmed finding that the defendants were protected by immunity and that the plaintiffs had failed to show harm arising from the alleged interference. (Case No. A09A0103 Georgia Court of Appeals, March 30, 2009)
Attorney Profiles: Joe Kingma Michele Jones
Fraud Claims Arising from a Failed Assemblage and Townhome Development Defeated on Summary Judgment
Andy Eaton, John Rogers, and Joe Kingma represented a law firm which had assisted in an attempted 100 acre assemblage along with a separate 150 unit townhome development. Both projects failed midstream when the real estate market turned, and there was a falling out among the investors who had funded the projects. A New York investor alleged he had been defrauded through a complex nest of entities. Several lawsuits ensued, and our client law firm was ultimately named as a third party defendant in federal court in Atlanta. The investor was represented by first one, and then another, high-profile firm. Although the investor showed his money had been misallocated, the recipient was in jail in NYC convicted of murder. Andy, John, and Joe got summary judgment as to all the claims against the law firm, which included fraud, conversion, and conspiracy. The case remains ongoing as to other parties, and the ruling may be ultimately appealed.
Attorney Profiles: Joe Kingma John Rogers Andy Eaton
Summary Judgment for Builder
On February 13, 2009, the Court of Appeals reversed the trial court and entered summary judgment for a builder on a catastrophic injury case defended by Dave Root. The Court of Appeals determined that the builder was both an owner and a general contractor, entitling the builder to immunity as a statutory employer under the workers' compensation statute. Creeden/KBC Constructors v. Fuentes, Georgia Court of Appeals, case number A08A2331.
Attorney Profile: Dave Root
Favorable Verdict in RICO Case
Chip Emge and David Harmon obtained a verdict totaling $7,757,776 against a large Charleston based financial organization for fraud and racketeering under the Racketeer Influenced and Corrupt Organizations Acts ("RICO"). In the lawsuit, the plaintiff alleged that the defendants, who offered "90% Stock Loans" to clients, did not insure its ability to return the stock at the end of the loan term as promised. It was also alleged that the defendant paid themselves exorbitant fees and commissions, invested the funds in local companies they owned, and created an elaborate network of offshore shell companies to launder and hide the funds. When the defendant's clients attempted to retrieve their collateral, they discovered that the defendant could not return the stock.
Following an initial arbitration suit in 2005, the defendant filed for bankruptcy, which was quickly converted to a Chapter 7 involuntary bankruptcy. The plaintiff, the Bankruptcy Trustee, and all borrowers filed lawsuits against the defendant and an array of offshore shell companies allegedly created to launder the proceeds of the scheme. These lawsuits were consolidated for trial before The Honorable David C. Norton. The verdict came after a four week trial in the United States District Court for the District of South Carolina, awarding substantial RICO verdicts against the defendants.
Attorney Profile: Chip Emge David Harmon
Rare Defense Verdict in Hampton County, South Carolina
On January 14, 2009 Gary Lovell and Andrew Countryman obtained a rare defense verdict in the trial of a motor vehicle accident case in Hampton County, South Carolina. In the case, the Defendant driver "rear-ended" the Plaintiff while operating an employer owned vehicle. Plaintiff was turning right into a narrow private driveway at the time of the collision. Defense counsel argued that the Plaintiff did not give sufficient warning to oncoming traffic of her intent to stop or slow considerably during her turn, resulting in her unexpectedly blocking most of the travel lane.
Plaintiff claimed significant injuries and ongoing medical treatment, including permanent spinal injuries, aggravation of pre-existing bi-polar disorder, with permanent disability and inability to work as a nurse. Plaintiff's vocational expert Dr. Vanderkolk and her economist Dr. Oliver Wood estimated Plaintiff's past and future special damages in excess of $759,000, plus pain and suffering.
After an hour of deliberation, the jury returned a special verdict finding the Plaintiff 70% at fault for the accident and the Defendant 30%. Under South Carolina's comparative negligence laws, that verdict resulted in a Judgment for the Defendants. Judge Wellmaker of Pickens County presided over the trial in Hampton County. This is one of the few reported Defense verdicts in Hampton County.
The case has been resolved in post-judgment negotiations.
Attorney Profiles: D. Gary Lovell, Jr. Andrew W. Countryman
2009 Georgia Super Lawyers and Rising Stars List
Carlock Copeland is proud to announce 19 of our attorneys have been selected for inclusion on the Georgia Super Lawyers® and Rising Stars lists for 2009.
Super Lawyers Honorees
Thomas S. Carlock
Wade K. Copeland
Kent T. Stair
Douglas W. Smith
David F. Root
Wayne D. McGrew, III
Fred M. Valz, III
Johannes S. Kingma
D. Gary Lovell, Jr.
Adam L. Appel
Gregory H. Wheeler
Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Only 5 percent of the total lawyers in the state are honored on the Super Lawyers list. This list of honorees is published annually by Law & Politics in conjunction with Atlanta Magazine.
Rising Stars Honorees
Eric J. Frisch
Shannon M. Sprinkle
Peter Werdesheim
Amy J. Urban
Heather M. Miller
Katherine G. Hughes
Patricia F. Anderson
Spencer A. Bomar
Rising Stars is a listing of exceptional lawyers who are 40 years or under, or who have been practicing for 10 years or less and have attained a high degree of peer recognition and professional achievement. Only 2.5 percent of the total lawyers in the state are honored on the Rising Stars list. This list of honorees is published annually by Law & Politics in conjunction with Atlanta Magazine.
Summary Judgment for the Defense in Legal Malpractice Case
Kent Stair and Cheryl Shaw obtained summary judgment for a Tennessee law firm that was sued in Georgia for professional malpractice, breach of fiduciary duty, and fraud. Plaintiffs alleged that the Firm failed to timely disclose a conflict of interest, causing plaintiffs to miss the statute of limitations for filing a wrongful death lawsuit. Kent and Cheryl argued that plaintiffs failed to prove proximate cause, an essential element of each claim. The U.S. District Court, Northern District, Atlanta Division agreed, entering summary judgment for the firm on all counts and dismissing plaintiffs' case.
Attorney Profiles: Kent Stair Cheryl Shaw
Summary Judgment for the Defense
Dave Root and Ann Bracco recently obtained summary judgment in favor of a residential developer that was sued for negligent construction, fraud, and fraudulent concealment after the Plaintiff was seriously injured when his deck collapsed. Dave and Ann argued that the statute of repose barred the claim, regardless of fraud. The Court agreed and found that not only did the Plaintiff fail to establish a fraud claim, that fraud does not preclude application of the statute of repose where an injury occurs outside the statute's time period.
Attorney Profiles: Dave Root Ann Bracco
Defense Verdict for Georgia Motel
David Root and Clare Michaud obtained a defense verdict for their client, a Georgia based motel, in a recent premises liability case on February 3, 2009. The Plaintiff alleged he suffered injuries at the motel and claimed over $250,000 in damages.The jury returned the favorable verdict after only six minutes of deliberation.
Attorney Profiles: David F. Root Clare Michaud
Favorable Premises Liability Verdict
Partner R. Michael Ethridge and Associate Lenna S. Kirchner represented a local business owner in Georgetown County in a premises liability case where the Plaintiff sustained a broken back after falling through a poorly constructed railing on plaintiff's premises. The plaintiff had $133,000 in actual damages and was seeking an additional award for pain and suffering as well as an award for punitive damages. The Plaintiff had demanded $435,000 prior to trial. Four weeks before the trial, Mr. Ethridge filed an $80,000 offer of judgment. After four hours of deliberation the jury returned a verdict in favor of the plaintiff in the amount of $85,000 in actual damages and $0 in punitive damages.
Attorney Profiles: R. Michael Ethridge Lenna S. Kirchner
Motion for Summary Judgment Granted in Favor of City
David F. Root and Clare Michaud obtained summary judgment in favor of their client, a Georgia municipality, that was sued for property damage, trespass, nuisance and violations of the Georgia Constitution. The Court granted the motion for summary judgment on all four of the defense's arguments against liability. Following oral argument, the Court granted the motion and dismissed the client from the suit.
Attorney Profiles: David F. Root Clare Michaud
Trucking Liability - Successful Mitigation of Client Exposure
Partners, D. Gary Lovell and Renee Little defended a commercial trucking company and its driver in a case involving catastrophic injuries arising out of a rear-end collision. The plaintiff, also driving a commercial tractor and trailer, was rear-ended by the defendant driver at a high rate of speed resulting in a tractor fire and significant injury to the plaintiff. The plaintiff was no longer able to work as a result of the injuries sustained in the collision. The plaintiff had multiple surgeries and alleged that future surgeries were likely. Damages were highly disputed. The case was tried before a jury in Savannah, Chatham County, Georgia. After effective and vigorous negotiation, defense counsel proposed a high-low arrangement and plaintiff’s counsel agreed. The jury returned a verdict of $1,050,000, but based on the high-low agreement, defense counsel limited their clients’ exposure to $600,000.00.
Attorney Profiles: D. Gary Lovell Renee Little
Motion for Summary Judgment Granted in Favor of Product Seller
Christopher Whitlock and Amy Urban recently obtained summary judgment in favor of their client, a national building materials retail seller, who was sued by an Atlanta construction company for allegedly selling a defective product and for negligent construction. The defense filed a Motion for Summary Judgment requesting that the construction company's claim be denied. Judge Brenda Cole found in favor of the retailer and held that the retailer, as a mere product seller, could not be found strictly liable for the sale of the alleged defective product. Judge Cole further held that if the product was defective when sold that the construction company failed to revoke its acceptance of the defective product within a reasonable time.
Attorney Profiles: Christopher Whitlock Amy Urban
Carlock, Copeland & Stair Elects Two New Partners
Carlock, Copeland & Stair announced today that it has elected Associates Renee Y. Little and Peter Werdesheim to join the Firm's partnership in their Atlanta office, effective January 1, 2009.
"Renee and Pete are valuable assets to our firm and we are proud to welcome them to the Partnership," said Gregory Wheeler, Managing Partner of Carlock, Copeland & Stair. "We look forward to their continued success."
Attorney Profiles: Renee Y. Little Peter Werdesheim
Carlock Copeland Recognized as Go-To Law Firm
Carlock, Copeland & Stair, LLP has been recognized as a Go-To Law Firm of leading financial services companies. Incisive Media, formerly known as ALM, surveyed the General Counsel of leading financial service companies to identify their primary outside law firm in each of nine practice areas: banking and finance, corporate transactions/mergers and acquisitions, intellectual property, labor and employment, litigation, regulatory affairs and compliance, securities, Canadian and international matters. Carlock Copeland appreciates the confidence in our Firm expertise by AFLAC and American Family Insurance in naming us as their Go-To law firm in litigation.
Top 25 Law Firms
For the third consecutive year, Carlock, Copeland & Stair, LLP is proud to be named on the “Top 25 Law Firms” in Atlanta list by the Atlanta Business Chronicle. The Firm moved up three places this year to twenty-two.
* The “Top 25 Law Firms” List was originally published in the June 13-19, 2008 issue of the Atlanta Business Chronicle.
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