Representative Cases

Sarah Wetmore and Andy Countryman obtained a dismissal with prejudice of a legal malpractice action in South Carolina state court. The Plaintiff maintained that a Charleston lawyer and his firm wrongly deprived the Plaintiff of the opportunity to participate in the settlement of a lawsuit arising out of his minor child's death in which the lawyer represented the child's mother. The Court held that the Defendants were immune from liability to the Plaintiff because they never represented him. The Court also determined that the Plaintiff failed to file the requisite expert affidavit and to plead the proper elements of an Unfair Trade Practices Act cause of action. Andy Countryman argued the Motion on May 9, 2012 in Marion, South Carolina in front of Judge Anthony Russo.

Partners Chip Emge and David Harmon obtained a defense verdict for a chiropractor on April 20, 2012 in Charleston County, South Carolina. The Plaintiff alleged that she had suffered a herniated disk as the result of a complimentary chair massage given at a community event. At issue was the ability of a chair massage to produce enough force to cause a disk herniation as well as whether it was the chiropractor or his massage therapist who had actually attended the event on behalf of the practice group. The Plaintiff sought $5 million in damages. After a five day trial, the jury found in favor of the chiropractor as well as the practice group.

Paul Sperry and Andy Countryman obtained a dismissal of a wrongful death/survivorship action filed against a Myrtle Beach engineering firm in South Carolina state court. The Plaintiff sustained injuries that led to her death when she was involved in a car accident while on vacation in Myrtle Beach in 2010. The Complaint alleged the Defendant engineering firm negligently designed the intersection where the accident took place, which caused the accident. The Court dismissed the Complaint based on the Plaintiff's failure to file the requisite expert affidavit against the Defendant engineer. The Plaintiff asked for more time to file the affidavit because it had retained an expert and was in the process of obtaining an affidavit. However, the Court denied the request and dismissed the Complaint. Andy Countryman argued the Motion in Conway, South Carolina in front of Judge Larry Hyman on April 18, 2012.

Michele Jones and Joe Kingma represent a lawyer who allegedly gave bad advice in an employment matter. The plaintiff claimed that based on the advice, he quit his job, enrolled in law school, moved away from his family, and borrowed money to pay expenses. Michele and Joe moved for summary judgment, which the trial court granted in large part, including dismissing claims for emotional distress, attorney's fees, and punitive damages. The court sharply limited the damages that the plaintiff might recover. The Court of Appeals of Georgia affirmed the holding that the plaintiff could not recover any damages related to attending law school, because the defendant lawyer did not proximately cause those alleged damages. The Court of Appeals described the plaintiff's claim, that a lawyer must pay to remake a client's life, as "preposterous."

Partners Chip Emge and David Harmon obtained a defense verdict for a surveying company on March 7, 2012 in Charleston County, South Carolina. The surveyor was hired by the Plaintiff developer as part of the due diligence process for the purchase of a piece of commercial property. Unbeknownst to the surveyor, the seller had represented to the Plaintiff that the property was free of wetlands. The survey plat provided to the Plaintiff stated that it did not and was not intended to identify wetlands. When wetlands were subsequently discovered, the Plaintiff sued the surveyor claiming that the failure to locate wetlands was a breach of their contract and negligent. The Plaintiff sought in excess of $1 million in damages. The jury found in favor of the surveyor holding that the Plaintiff knew or should have known that the survey did not identify wetlands at the time it was provided to him but did not pursue its claims until after the statute of limitations had run.

Lindsey Hettinger, John Rogers, and Joe Kingma obtained summary judgment in a putative class action suit against a law firm in the Southern District of Georgia. The plaintiffs were referred to the law firm by a chiropractor after a 2005 car accident. The firm handled plaintiffs' personal injury claims and settled on their behalf. Plaintiffs filed a class action alleging professional negligence, fraud, and breach of fiduciary duty. They claimed the law firm wrongfully solicited them at the chiropractic clinic, engaged in a fee-sharing scheme with the clinic, and inadequately represented their interests. The allegations included the suggestion of an unholy alliance between the firm and the chiropractor against the clients' interests. Judge Lisa Wood granted the firm's motion for summary judgment on March 7, 2012, holding the plaintiffs could show no damage.

Fred Valz, Erica Parsons and Beth Albright defended an insured automobile owner and his friend.  A car thief stole the insured's vehicle and crashed into innocent motorists. The motorists filed suit against the insured and his friend, who were following the thief in another vehicle at time of the accident. The Superior Court, DeKalb County, entered summary judgment in favor of the insured owner and friend and the motorists appealed. The Court of Appeals affirmed the grant of summary judgment, ruling that the motorists presented no evidence showing that owner and friend breached any duty by following the car thief and that they presented no evidence of a causal connection between their following and the subsequent accident.  The Supreme Court denied Plaintiffs' Petition for Cert.

Shannon Sprinkle, John Bunyan, and Joe Kingma won the dismissal of a federal action against a law firm that was retained to initiate foreclosure proceedings. The plaintiff alleged that his promissory note and security deed were forged and that the collections law firm "robo-signed" the assignment of his security deed and failed to get government authorization before foreclosing. In dismissing the action, the U.S. District Court for the Northern District of Georgia concluded that none of these allegations stated a plausible claim for relief.

Paul Sperry and Patrick Norris obtained a defense verdict for a large masonry contractor on January 27, 2012 in Charleston County, South Carolina. The masonry contractor was hired by the original general contractor ten years after original construction in an effort to address water intrusion concerns around windows. The plaintiff homeowner sought over $300,000 in damages for allegedly defective work related to original construction and the subsequent masonry repairs. The jury found in favor of the plaintiff as to negligence of the general contractor, but absolved the masonry contractor of any fault for the plaintiff's alleged damages.

Partners Lee Weatherly and Gary Lovell recently prevailed in the South Carolina Court of Appeals for a physician client in a case of first impression relating to South Carolina's pre-suit expert affidavit requirement under the 2005 Tort Reform Legislation. The Court of Appeals affirmed a York County trial court judge finding that the Notice of Intent Statute, and South Carolina Law, mandate the filing of a contemporaneous expert affidavit alleging one act of negligence when Plaintiff files a Notice of Intent to sue a medical professional. Plaintiff argued, in opposition, that the general provisions of the 2005 Tort Reform Legislation in South Carolina automatically grant a Plaintiff an additional 45 days to file an expert affidavit in the Notice of Intent phase of the litigation when he is within 10 days of the expiration of the statute of limitations. The Court of Appeals ruled that this argument was not persuasive and upheld the trial court's ruling, striking the Notice of Intent to File Suit from the record and ending the case. Contact Lee Weatherly at lweatherly@carlockcopeland.com or Gary Lovell at glovell@carlockcopeland.com for more information. For a copy of the full published opinion see http://www.sccourts.org/opinions/HTMLFiles/COA/4935.htm.

Partners Eric Frisch and Broderick Harrell obtained a defense verdict in Fulton County Superior Court in a wrongful death case. Plaintiffs alleged that an emergency physician failed to resuscitate a critically ill patient adequately and failed to insert a chest tube in the face of evidence of bleeding into the chest.

John Bunyan, John Rogers, and Joe Kingma represented a Tennessee accountant and his firm in two lawsuits arising out of a "business divorce." The plaintiffs alleged that the accountants were complicit in fraud and racketeering perpetrated by the CEO and claimed a loss of $125 million. The district court granted summary judgment, holding that all potential claims against the accountants had been released as part of two stock transfers. The Sixth Circuit affirmed the district court's order.

Kent Stair, Paul Sperry, and Patrick Norris represented an architect in an action in Charleston County, South Carolina brought by the homeowner's association of a condominium complex. The court initially denied the architect's motion for summary judgment on statute of limitations grounds, holding that while the plaintiff was on notice of potential construction-related defects more than three years prior to filing the action, the plaintiff was not on notice of any design-related defects. However, following oral arguments on the architect's motion to reconsider the denial of summary judgment, the court ultimately agreed with the architect's position that the statute of limitations is an objective, rather than subjective, concept. The court reversed its original decision and granted summary judgment on all of the plaintiff's claims against the architect by order dated January 4, 2012, holding that the plaintiff had an opportunity to investigate the defects when originally brought to its attention. The plaintiff's failure to ascertain the particular cause of the defects--construction, design, or otherwise--did not toll the running of the statute of limitations.

Jason Hammer represented an uninsured / underinsured motorist carrier in a bad faith action filed in Cobb County Superior Court. The Plaintiff alleged that although he entered into a settlement agreement with his insurer, the agreement was void due to coercion, fraud and duress and that his insurer acted in bad faith in refusing to pay additional benefits. The Court granted summary judgment in the insurer's favor, finding that the Plaintiff failed to exercise due diligence in perfecting service outside the statute of limitations and that even if service had been proper, Plaintiff's claims were barred by the doctrines of release and/or accord and satisfaction.

Doug MacKelcan recently obtained summary judgment for a large Property Owners Association in Beaufort County, South Carolina. Plaintiffs alleged that the POA's Architectural Review Board improperly approved a construction project on a neighboring property and pled nuisance, breach of contract and breach of fiduciary duty against the POA. After considerable discovery, the Court found that the POA was entitled to a judgment as a matter of law and dismissed the POA from the suit.

Jason Hammer represented an insurer in a declaratory judgment action in Fulton County Superior Court seeking a determination that there was no uninsured / underinsured motorist coverage exposure for the insurer. The insured argued her policy should have provided for added-on coverage, not reduced-by coverage, which she attempted to support with expert testimony. Jason successfully moved the court to exclude the insured's expert and the court subsequently granted summary judgment in the insurer's favor, finding that the policy provided for reduced-by coverage and therefore no UM exposure existed as a matter of law.

Joe Hoffman, Bill Jones, and Joe Kingma prevailed on a motion to dismiss granted in the Superior Court of Gwinnett County on November 29, 2011.

The case arose from a contract for the sale of 36.5 acres of raw land which was going to be converted to commercial. The sale fell through when a local municipality arguably changed the zoning rules and the developer sued the municipality as well as a local nonprofit. The developer claimed that the nonprofit employee, who was formerly the mayor of the municipality, had tortiously interfered with contractual relations and caused the loss of the sale. The developer prevailed against the municipality and obtained an advisory opinion for $1.8 million dollars.

Carlock Copeland defended the claims against the nonprofit, arguing that even if the speech was made, which was denied, it was privileged and protected by the Anti-SLAPP statute. The case was vigorously argued on motion, which was granted by the trial court on November 29, 2011.

The case has been appealed, so stay tuned for further developments.

Dave Root and Molly Gillis obtained summary judgment in their clients' favor in a wrongful death case in the Superior Court of Laurens County. The Plaintiff was the son of the deceased, who was killed on the job when a tree fell on him. The deceased worked for the Defendants as a tree remover. The Plaintiff alleged that the Defendants failed to exercise ordinary care and other allegations of negligence. Dave Root and Molly Gillis successfully argued that the Workers Compensation Act (O.C.G.A. 34-9-11) barred Plaintiff from recovering against their clients. The judge granted the Defendants' motion and the case was dismissed.

Chris Meeks, Shannon Sprinkle, and Joe Kingma obtained a favorable Court of Appeals decision affirming summary judgment granted to their lawyer client.  Their client had been sued by an opposing party in a divorce case for claims of breach of fiduciary duty, fraud, and conspiracy.  Plaintiff's claims were an effort to un-do a divorce decree, which he said resulted in an unfair distribution of marital assets.  The trial court had previously rejected all of Plaintiff’s claims against the lawyer as an improper collateral attack on the prior judgment and found that Plaintiff was barred by in pari delicto due to his own bad acts.  The Court of Appeals affirmed the trial court’s decision.

This case may be appealed so stay tuned for further updates.

Mike Ethridge and Katie Sullivan recently prevailed on a Motion to Dismiss with prejudice filed in state court on behalf of an architectural firm.  Plaintiff alleged that the architect defendant violated the standard of care, causing or contributing to his fall on a ramp outside a South Carolina library, and filed the affidavit of a safety consultant contemporaneously with the Complaint.  The South Carolina court granted Mike and Katie's Motion to Dismiss with prejudice on the basis that the safety consultant was not qualified to render an opinion on an architect's standard of care.

Tom Carlock and Eric Frisch successfully defended a general surgeon in a wrongful death claim in Bartow County Superior Court (Cartersville, Georgia). The patient was at the hospital for a small bowel obstruction. The surgeon ordered the placement of a nasogastric tube in the operating room. Because it was an "open" procedure, a laparotomy, the surgeon reached up and felt the nasogastric tube in the stomach. About 18 hours later, the patient became sick and, on investigation, it was discovered the patient had suffered a rupture of the esophagus from the nasogastric tube. The patient was then transferred to another hospital, but she died 10 days later at age 85. Plaintiffs alleged that the surgeon failed to confirm placement of the nasogastric tube in the operating room and failed to diagnose and treat the perforation in a timely manner. The jury returned a defense verdict in just over 3 hours.

Mike Ethridge and Katie Sullivan obtained a dismissal in a federal court action in which the plaintiff was seeking over $650,000 in actual damages for injuries sustained when he fell off a ladder at a construction site. Mike and Katie represented the subcontractor who allegedly installed the ladder in violation of applicable standards. They were able to secure a dismissal after establishing that the ladder was installed by someone other than their client.

Lindsey Hettinger, Michele Jones, and Joe Kingma represented two attorneys and their law firms, who were sued in connection with the administration of an estate.  The Northern District lawsuit was dismissed for lack of subject-matter jurisdiction under the Rooker-Feldman doctrine.  The Court of Appeals affirmed the dismissal on October 4, 2011.

Wade Copeland and Ashley Sexton successfully defended a dentist in the State Court of Fulton County. Plaintiff alleged that the dentist negligently performed a total mouth reconstruction that employed a bridge and crown reconstruction of the patient's mouth resulting in broken teeth, headaches, weight loss and exacerbation of other pre-existing conditions. The defense presented evidence that dentist had seated the reconstruction in temporary cement with the intention of adjusting the patient's bite and correcting any deficiencies before seating the reconstruction in permanent cement. However, the patient failed to return for the final seating of the reconstruction. Rather than having any further dental work done, he elected to file suit against the dentist. The defense presented expert testimony that the reconstruction was performed appropriately and that the patient's failure to allow the dentist to complete the work resulted in his damages. The jury returned a defense verdict after a short period of deliberation.

Brian Spitler, Michele Jones, and Joe Kingma won dismissal of claims against their attorney client in the U.S. District Court for the Northern District of Georgia. The plaintiffs alleged that they lost their investments in a real estate company due to fraud. The plaintiff investors sued various defendants, including the attorney who performed corporate legal work for the company. The court agreed that the plaintiffs failed to state claims for securities fraud, fraudulent misrepresentation, unjust enrichment, false certification of financial statements, and civil RICO against the attorney.

Lee Weatherly was successful in obtaining a directed verdict for his client, an urgent care physician, in a Charleston, South Carolina medical malpractice case. In this case, Plaintiff alleged that the Defendant urgent care physician was negligent in his diagnosis and recommended care of a large plural effusion in Plaintiff's left lung. Plaintiff contended that the physician neglected to correctly diagnose her condition and send her to an emergency room for proper care, leading to a two day delay in treatment. There was a factual dispute as to what care the Defendant physician actually recommended to the Plaintiff. However, the Plaintiff was unable to bring forth any evidence that even if the Defendant physician was negligent, the two day delay in treatment caused her any damages. The Judge found that the Plaintiff's claim was deficient as a matter of law and ordered that it be dismissed with prejudice. For more information on the case, contact Lee at lweatherly@carlockcopeland.com.

Kate Hughes successfully represented a real estate brokerage and its agents in a heavily litigated real estate claim brought by Plaintiffs. Plaintiffs signed a purchase contract to buy a luxury condo during its pre-construction phase.  Plaintiffs are the would be buyers in the transaction and defendant was Plaintiffs' buyer's agent.  However, the real estate market crashed and Plaintiffs ended up defaulting on their purchase, which forfeited their earnest money payments.  Plaintiffs claimed Defendant misrepresented several key facts about their condo purchase, which is why they claim to have defaulted on the purchase.  Plaintiffs alleged claims under the Interstate Land Sales Act, the Georgia Securities Act, Fair Business Practices Act, Fraud, as well as numerous other claims regarding the real estate transaction.  Kate was able to successfully negate each of the 12 counts in the complaint and obtain dismissal of all counts on summary judgment.

Wade Copeland and Ashley Sexton successfully defended an obstetrician-gynecologist in a case in the State Court of Cobb County. Plaintiff alleged that the doctor failed to successfully complete a dilation and curetage to remove products of conception following a miscarriage. Plaintiff contended that the doctor failed to inspect the tissue extracted during the procedure, failed to perform an ultrasound immediately following the procedure, and failed to immediately review the pathology report to insure that the fetus had been successfully extracted. The patient presented to the emergency department following the procedure. She had testified she was experiencing bleeding and severe cramping, but she failed to report this and only complained of a headache, for which she was prescribed medication and discharged home. The patient later delivered the fetus at home. The defense presented two expert witnesses, each of whom testified that the doctor had complied with the standard of care in performing the procedure and that the standard of care did not require that the doctor view the tissue extracted, perform a stat ultrasound or immedately review pathology results before discharging the patient following the dilation and curetage. The jury returned a defense verdict after a very short period of deliberation.

Gary Lovell and Doug MacKelcan obtained a defense verdict for a national auto parts store in a premises liability case after a two day trial in Charleston County, South Carolina.  In this case, Plaintiff fell as she was exiting the store and broke her finger, requiring emergency surgery and months of physical therapy.  Plaintiff claimed the store failed to remedy a dangerous condition that caused Plaintiff to fall; however, the jury determined that the store was not negligent in its maintenance and supervision of the premises and returned the defense verdict after approximately two hours of deliberation.

Shannon Sprinkle and John Bunyan won the dismissal of a federal action against a law firm that was retained to initiate foreclosure and dispossessory claims.  In dismissing the case, the Northern District of Georgia concluded that the plaintiff's allegations of Fair Debt Collection Practices Act violations and wrongful foreclosure failed to show any plausible claim for relief.

Kate Hughes was able to obtain dismissal of Plaintiff's dental malpractice claims against her client under the "5 year rule".  Kate fully protected her client since her client's personal assets would have been at stake if this case had reached trial.

Michael Ruppersburg successfully defended a police officer in a high-profile criminal case.

The officer was working an off-duty job as a security guard at an apartment complex in a high-crime area. The officer saw a man leaving the apartment complex that he believed was acting suspicious and tried to stop and question him. Instead of stopping, the man got into his car and attempted to run from the officer. The man then reached under his seat and grabbed a black object that the officer thought was a gun. Believing his life was in danger, the officer fired one shot in self-defense. The black object that the officer thought was a gun was actually a cell phone. A grand jury indicted the officer on two counts of aggravated assault, aggravated battery and violation of oath of office. He faced a prison sentence of up to 20 years if convicted.

After an eight day trial and two days of deliberations, the jury found the officer not guilty on all counts.

Laura Paris obtained a stipulation of dismissal in a personal injury claim for a client. In the suit, Plaintiff alleged that our client's semi-truck crossed into his lane to pass several vehicles.  Plaintiff alleged that he was forced to drive his motorcycle off of the road to avoid a head-on collision and, as a result on the evasive maneuver, he injured his back and shoulder.  After several hours of questioning the Plaintiff as to his medical records, which predated the incident, Plaintiff's attorney recommended to his client that they dismiss the case.

John Bunyan, John Rogers, and Joe Kingma prevailed in the Eleventh Circuit, which affirmed an order dismissing a multi-million dollar audit malpractice suit with no discovery. The case arose from the failure of a contractor that had provided most of the asphalt for Georgia DOT projects. The contractor's failure had led to a firestorm of litigation, including one verdict of $150 million. On July 14, 2011, the Eleventh Circuit affirmed Carlock Copeland's win on behalf of a Georgia audit firm. The appellate court agreed that a construction bonding company's complaint must be dismissed for failing to specifically describe the mistakes the audit firm allegedly made. Carlock Copeland emphasized the U.S. Supreme Court's decisions in Iqbal and Twombly and argued that the plaintiff bonding company had failed to articulate a specific error. The win was reported in a Law360 article on July 15, 2011.

Michael Ruppersburg recently argued and won a case at the Georgia Supreme Court over whether Georgia should adopt a new legal duty for a hotel to check on a guest's welfare.

A 76 year old man was staying at a hotel on a business trip. According to his wife, one evening she was unable to reach her husband despite multiple phone calls to his room. The wife called the hotel front desk several times and told hotel employees that her husband was on medication, that she was very worried about him and made multiple requests for someone check on him. Hotel employees disputed receiving these phone calls. Around noon the next day, housekeepers found the man lying on the floor of his room in medical distress. Although the hotel immediately called for an ambulance, he died on the way to the hospital.

His wife sued the hotel for wrongful death. She claimed that, based on her telephone calls the night before, the hotel had a legal duty to check on her husband's welfare and summon medical aid if needed. Ruppersburg argued that this new legal duty conflicted with current Georgia premises liability law and that the hotel owed no legal duty to the man because it did not cause or contribute to his medical distress. In a 4-3 split decision, the Georgia Supreme Court agreed. The majority ruled that the hotel had no legal duty to check on the man's welfare and ruled in favor of Ruppersburg's client.

D. Gary Lovell, Jr. and Lee Weatherly obtained a defense verdict for a surgeon and his practice group, in a medical malpractice case filed in York County, South Carolina. In the trial, the Plaintiff claimed that the doctor failed to properly perform an open cholecystectomy (gall bladder removal) that had been converted from a laparoscopic procedure. Plaintiff's common bile duct was transected during the procedure necessitating two corrective surgeries to repair the injury. Nevertheless, the jury determined that the doctor met the standard of care and returned a unanimous verdict in favor of the physician after deliberating for approximately four hours.

On June 16, 2011, the Eleventh Circuit affirmed the dismissal of a lawsuit brought against a lawyer/guardian ad litem. John Bunyan, Shannon Sprinkle, and Joe Kingma successfully argued that the plaintiff had not sufficiently alleged facts supporting the claim that the guardian had conspired with state actors and others to deprive the plaintiff of his constitutional rights.

Doug Smith and Kate Hughes won Summary Judgment and obtained dismissal of a highly contentious wrongful death case brought under the Family Purpose Doctrine after they proved there was no evidence of a common law marriage or other family relationship.

Broderick Harrell obtained summary judgment for an emergency medicine physician sued for failing to diagnose an ascending aortic dissection and accused of contributing to a delay in the diagnosis and treatment of the patient. After completion of discovery, the trial court granted the judgment in favor of the emergency medicine physician for lack of causation evidence.

Lindsey Hettinger, Pete Werdesheim, and Joe Kingma obtained summary judgment in an abusive-litigation action brought against their clients in the Superior Court of DeKalb County.  Plaintiff contended that Carlock Copeland's attorney clients pursued frivolous defenses and counterclaims in an underlying lawsuit that stemmed from the breakup of a technology business, seeking nearly $1,000,000 in damages.  In an order entered June 10, 2011, just ten days before a specially set trial, Judge Linda Warren Hunter determined that no triable issue existed as to "malice," causation, or damages.

A prominent Atlanta law firm retained Tom Carlock and Pete Werdesheim about a fee dispute with a client. The firm had obtained a judgment worth over a half-million dollars for the client and successfully defended the award on appeal, all while working on a hourly basis.  The client owed the firm a substantial sum of money and hired a new attorney, who raised allegations of overbilling and ethical violations in connection with certain interest charges.  Tom and Pete were able to negotiate a resolution to the fee dispute without resort to litigation, and their client received over $250,000.00, nearly 100% of the principal amount owed.

David Overstreet and Mandi Dudgeon recently prevailed on a Motion to Dismiss in state court on behalf of a local real estate attorney in South Carolina. Plaintiffs alleged that the lawyer failed to provide adequate advice with regard to the sales contract and real estate closing he conducted. The Court of Common Pleas granted the attorney's Motion to Dismiss with prejudice on the basis that Plaintiffs failed to present necessary arguments on the standard of care or a supporting expert opinion.

Dan McGrew and Kim Ruder successfully defended a pathologist in a wrongful death action in Fulton County.  The case involved allegations that the pathologist misdiagnosed breast cancer in a 27 year old woman who presented to the hospital with a breast mass and underwent a mastotomy and drainage of what was believed to be a breast abscess.  The pathologist read the tissue slide as benign.  Two years later, the patient was diagnosed with breast cancer in a different location in the same breast.  Within a year from diagnosis, the patient died of breast cancer that had metastasized to her lungs.  She was 30 years old at the time of her death.  The case was tried over 4½ days.  McGrew and Ruder successfully argued that the breast cancer that was diagnosed two years after the pathologist reviewed the tissue slide was a new and different cancer.  Plaintiff sought damages in the nature of $5,000,000.  McGrew and Ruder successfully obtained a judgment in favor of their pathology client.

Pete Werdesheim, Billy Newcomb, and Joe Hoffman secured the dismissal of an adversary proceeding against their client in the U.S. Bankruptcy Court, Middle District of Georgia.  In short summary, the plaintiffs contended that Carlock Copeland's client committed various acts of fraud and sought a determination that a state-court judgment against him would be nondischargeable under 11 U.S.C. § 523(a)(4).  After a lengthy hearing in Albany, Judge James D. Walker, Jr. issued a memorandum opinion and order on May 29, 2011.  Judge Walker found that although "the facts of this case cry out for a remedy" in light of the "egregious" conduct allegedly committed by Carlock Copeland's client, the plaintiffs failed as a matter of law to show that the firm's client had engaged in fraud in a fiduciary capacity, as that term is defined in the Bankruptcy Code.

Carlock Copeland Attorney, Thomas A. Cox, Represents DeKalb County and Atlanta Public Schools in Landmark Case.

In a long-delayed and highly anticipated decision, the Georgia Supreme Court, siding with local Georgia public school systems including Gwinnett and DeKalb Counties and the City of Atlanta, has declared unconstitutional a Georgia law that had allowed the State to bypass local school boards and approve the creation of state charter schools funded by contributions from local school systems.

The Georgia Charter Commission Act, enacted by the General Assembly in 2008, authorized a politically appointed state commission to override decisions by local school boards denying applications to create charter schools. In striking down the Act, the Georgia Supreme Court's decision affirms the constitutional authority of local school boards to determine when and whether charter schools may operate within their districts.

Thomas A. Cox, who recently joined the law firm of Carlock Copeland & Stair, represented the DeKalb County and Atlanta school systems in the case before the Supreme Court. "The Georgia Constitution clearly specifies that local public education is to be under the management and control of local boards of education," said Cox. "By upholding this principle, the Georgia Supreme Court has put decisions regarding the creation of charter schools, and the expenditure of local tax funds, back in the hands of locally elected boards, and out of the hands of a group of political appointees who are not answerable to any voters."

The decision will have no impact on the large majority of Georgia’s charter schools, which have been approved by local school boards, but it may require the closure (or at least the loss of all local funding) of charter schools that have previously been approved by the State Charter Commission, including Ivy Preparatory Academy in Gwinnett County, Charter Conservatory for Liberal Arts and Technology in Bullock County, and Heron Bay Academy in Spaulding County, all of which were parties in the case.

In addition to Mr. Cox, the Charter Commission lawsuit also included former Georgia Attorney General Mike Bowers, now with the firm of Balch & Bingham, who represented the Gwinnett County School System; Attorney General Thurbert Baker representing the State defendants; and Bruce Brown of McKenna, Long & Aldridge representing the charter school defendants.

Carlock Copeland & Stair, a firm with more than 40 years of litigation experience, has established an Education Law practice. Mr. Cox leads the practice area that will focus on representation of public and private schools, school systems, and other educational institutions in significant litigation matters involving diverse issues, including student rights, education of students with disabilities, employment law, construction disputes, compliance with federal laws, open records and open meetings issues, charter schools and contract disputes.

Adam Appel and Kim Ruder defended a landscape company whose driver caused a three car rear-end accident. The landscape company admitted liability and the case was tried over 4 1/2 days. The Plaintiff alleged that she sustained a shoulder injury which led to a recommendation for surgery 23 months after the accident. Prior to surgery she had received ongoing medical attention from various doctors, including her Primary Care physician, an orthopedic surgeon and a Pain Management Doctor during which time she complained of pain in the periscapular area of her right shoulder. After 23 months of unresolved shoulder pain she went to see another orthopedic surgeon who diagnosed an impingement syndrome in her right shoulder. The treating doctor testified that her surgery was necessitated by the accident. She underwent surgery and claimed $29,000 in medical expenses. In defending the case, Appel and Ruder argued that the Plaintiff failed to mitigate her damages by following her doctor's directions to follow up on a more regular basis and that the Impingement Syndrome was a new and unrelated problem. Plaintiff asked the jury to award her between $267,000 and $355,000 for past medical expenses and pain and suffering. The jury returned a verdict of $7,103. The case was settled pursuant to a high low agreement.

Jason Hammer successfully defended his client during a jury trial in Cobb County Superior Court. The Defendant admittedly ran a red light and collided with the Plaintiff, who presented evidence, including expert testimony, in an effort to show the Defendant was on her cell phone and that it caused her to run the light. The defense presented evidence that the Plaintiff was not paying attention either and despite having the right-of-way, could have avoided the accident. It was undisputed the Plaintiff suffered a broken arm and frozen shoulder, among other injuries, requiring a cast for a month, a dynamic splint for another month and over six months of physical therapy. She had a 7% permanent impairment rating and $12,000 in undisputed medical bills. The defense successfully attacked the Plaintiff's credibility with regard to her alleged pain, suffering and limitation of daily activities. The jury returned a verdict attributing 15% negligence to the Plaintiff and a damages award of $17,000, for a total award of only $14,450. Prior to trial, Plaintiff rejected a $30,000 offer and increased her demand from $125,000 to $155,000.

Brian Spitler and Joe Kingma obtained dismissal for their client, an accountant and a court appointed receiver, on claims brought by the principals of the company in receivership.  The motion to dismiss was based on the receiver's official immunity.  Following a hearing, Plaintiff voluntary dismissed the claims.

Trial victory for Tom Carlock and Eric Frisch, who successfully defended an anesthesiologist at trial. Plaintiffs alleged that the anesthesiologist and a physician assistant failed to adequately ventilate and oxygenate the patient after she developed respiratory distress, leading to purported brain damage. The Fulton County jury returned the defense verdict in about two hours.

On April 1, 2011, a Fulton County jury returned a defense verdict in favor of an OB/GYN physician who was represented by Dan McGrew and Spencer Bomar. The case involved a 39-year old female who was diagnosed with an ectopic pregnancy and who underwent surgical removal of a fallopian tube. Plaintiff alleged that the diagnosis, management, and surgical intervention of her ectopic pregnancy was untimely causing the permanent loss of a fallopian tube, pain and suffering, and lost wages.

Jason Hammer represented an international hotel corporation sued in Fulton County Superior Court after approximately half of the guests that attended a 2005 wedding reception at the hotel suffered from food poisoning. Thirty-one Plaintiffs alleged that the norovirus responsible for their illness was the result of the Defendant's negligent food handling. Jason moved for summary judgment on behalf of the Defendant, asserting procedural, as well as substantive deficiencies in Plaintiffs' case, which were supported by the expert testimony of an epidemiologist specializing in food safety. After almost four years of litigation, the Court granted Defendant's Motion, thus concluding the case in its entirety.

Adam L. Appel and Marquetta J. Bryan represented a major grocery store chain in a slip and fall case in the United States District Court for the Middle District of Georgia.  Marquetta Bryan obtained summary judgment for the client on the grounds that the plaintiff failed to prove the the condition over which she fell constituted a hazard, and failed to show that the defendant had superior knowledge of the condition.

On March 18, 2011, the Georgia Supreme Court upheld summary judgment in favor of a defendant builder represented by Dave Root and Cheryl Shaw.  Plaintiff claimed personal injuries stemming from a deck collapse eleven years after original construction by builder.  The trial court dismissed Plaintiff's claims in their entirety based on Georgia's statute of repose which prevents such claims from being asserted more than eight years after substantial completion.  Plaintiff appealed, claiming that the manner in which the builder had attached the deck to the house constituted fraud which estopped the builder from asserting the statute of repose as a defense.  The Court of Appeals upheld the trial court's dismissal, but Plaintiff appealed to the Georgia Supreme Court.

In a case of first impression, Dave and Cheryl argued that their client was not estopped from asserting the statute of repose, and that this (construction) case was different from other (medical negligence) cases where the doctrine of "equitable estoppel" had been used to extend the time in which plaintiff could assert his claim.  The Georgia Supreme Court agreed, holding that the plaintiff's injury must occur within the repose period in order for equitable estoppel to apply. Plaintiff's motion for reconsideration was denied on April 12, 2011.  Rosenberg v. Falling Water, Inc., ___ S.E.2d ___, 2011 WL 977816.

Tom Carlock and Eric Frisch successfully defended an obstetrician at trial against allegations that one fraternal twin received an in utero brain injury related to weight discordance, pre-eclampsia, and low amniotic fluid levels. The Floyd County, Georgia jury returned a defense verdict in less than 5 hours, after hearing evidence that the twin pregnancy was managed appropriately and that the most likely cause of the injury was genetics.

Pete Werdesheim, John Bunyan, and Joe Kingma obtained partial summary judgment and succeeded in striking one of the plaintiff's experts in a legal-malpractice action in the United States District Court, Southern District of Georgia.  In short summary, the plaintiff contended that Carlock Copeland's clients failed to timely file a personal-injury action against a railroad under the FELA.  The underlying action was dismissed under the statute of limitations.  But in a 43-page order entered March 17, 2011, Judge J. Randal Hall struck one of the plaintiff's experts and granted partial summary judgment to Carlock Copeland's clients on grounds that the plaintiff failed to establish a jury issue as to whether he would have prevailed in the underlying action.  The case will proceed to trial on the plaintiff's remaining claim of breach of fiduciary duty.

Partner Dan McGrew and Of Counsel Kim Ruder recently obtained a defense verdict in DeKalb County during their representation of a local cardiology practice.  The case involved the administration of a cardiac stress test and the use of a treadmill.  The Plaintiff alleged at trial that the cardiology practice's employees were negligent in administering the test in that they (1) failed to properly advise her regarding the increase in treadmill speed and that (2) once she was unable to maintain the increased speed, the cardiology practice employees failed to take proper action to prevent her from falling off the treadmill.  Plaintiff claimed she suffered injuries to her neck, low back, and lower extremity, resulting in a permanent impairment.  In defending Plaintiff's claims, Dan and Kim successfully showed that the cardiology practice's employees who administered the treadmill test carefully monitored the plaintiff, counseled her extensively regarding the test, and administered the stress test accordingly to industry standard.  They demonstrated that the Plaintiff was responsible for her own injuries and not as a result of the manner that the test was administered.  They also demonstrated that the Plaintiff's injury complaints were long standing problems that pre-dated her fall from the treadmill.

Michele Jones and Joe Kingma obtained summary judgment for a certified public accountant in the Superior Court of Whitfield County.  The plaintiff sued the CPA and others, alleging that the plaintiff was cheated out of profits when his employer was sold to another company.  The court granted summary judgment to all defendants on claims including conspiracy, money had and received, and conversion.

Joe Hoffman, Pete Werdesheim, and Joe Kingma won Summary Judgment for a law firm that acted as escrow agent in connection with a proposed $35 million dollar real estate development. The Plaintiff claimed that the law firm breached its fiduciary duty by prematurely releasing funds to a lender that backed out of the deal and kept the cash. Carlock Copeland argued that the law firm complied with the express terms of the escrow agreement. The Motion was granted on February 28, 2011, and the law firm was dismissed from the case.

Lindsey Hettinger, Shannon Sprinkle, and Joe Kingma won Summary Judgment on February 16, 2011, for a well-known law firm.

The Law Firm had acted as escrow agent for a consortium of developers who built a network of sewer pump stations. The final cost exceeded the Seven Million Dollar budget and the primary contractor for the project demanded an additional $1.5M from the developers for allegedly completed but unpaid work. As the escrowed funds were insufficient to meet the new demands, the Law Firm filed an Interpleader action seeking to deposit the remaining escrow sums into court.

One of the developers, against whom the additional demands for payment from the contractor was made, filed a counterclaim against the Law Firm alleging that it had mishandled the escrow account, resulting in undisclosed damages.

Carlock Copeland aggressively defended the counterclaim demonstrating through the depositions of representatives for the counterclaimant developer that it had suffered no damages other than approximately $70,000 it had paid its lawyers to pursue meritless claims. The Court also found that the developer could not show that the Law Firm had done anything improper in its administration of the escrow account to cause any damages.

Carlock Copeland's Motion for Summary Judgment was successful and the developer's claims were dismissed.

This matter may be appealed so watch for further updates.

John Bunyan and Joe Kingma obtained dismissal for a national insurance carrier in the Superior Court of Fulton County. The plaintiff brought claims directly against the carrier based on its insured's representation of the plaintiff in a contract action. The court dismissed the complaint in its entirety for failure to state a claim.

Lindsey Hettinger, Michele Jones and Joe Kingma obtained dismissal for their lawyer clients on claims brought by heirs in the U.S. District Court for the Northern District of Georgia. The judge granted the motion based on lack of subject matter jurisdiction, the Rooker-Feldman doctrine, and res judicata.

Lee Weatherly and Gary Lovell recently won a Motion to Dismiss in United States District Court for the District of South Carolina on behalf of a correctional health care organization. In their Motion to Dismiss, Lee and Gary asked the Court to dismiss Plaintiff's action for negligence against their client for failure to state a claim. Lee argued that Plaintiff's failure to correctly follow South Carolina's pre-suit requirements to bring an action for the alleged negligence of a health care provider warranted dismissal. Plaintiff countered that the pre-suit requirements to bring a negligence action against a health care provider in South Carolina were procedural and not mandatory in Federal Court. Plaintiff also argued that the South Carolina pre-suit requirements to bring an action for negligence against a medical provider were unconstitutional.

The Court ruled that to file an action for medical malpractice in a South Carolina Federal Court, even if the terms "medical negligence" or "medical malpractice" are not specifically used in the Complaint, a Plaintiff must fully comply with the pre-suit requirements of South Carolina law. As Plaintiff had failed to comply with these requirements to bring an action for medical malpractice in South Carolina, the Court dismissed Lee and Gary's client from the suit. For more details on this case contact Lee Weatherly at lweatherly@carlockcopeland.com or Gary Lovell at glovell@carlockcopeland.com.

The Oconee Community Service Board terminated Complainant's employment for negligence in performing her assigned duties, misconduct and conduct reflecting discredit on the CSB. The Complainant appealed the Board's decision to the Georgia Office of State Administrative Hearings. A hearing was held on September 15, 2010. Marquetta J. Bryan represented the employer at the hearing. In a decision issued January 31, 2011, the Administrative Board upheld the Community Service Board's decision to terminate the Complainant on the grounds that the employer had met its burden of proof, by presenting evidence and witnesses, to warrant upholding the employer's decision.

William Jones obtained dismissal with prejudice of a homeowner's lawsuit against a professional engineer related to the company's work at the site. He defeated the Plaintiff's challenge that it was not required to file an expert affidavit to assert claims against our client.

John Bunyan, John Rogers and Joe Kingma prevailed on a construction bonding company's claims against an audit firm in the United States District Court in the Southern District of Georgia. The paving company that provided the asphalt for most of the Georgia Department of Transportation's road building projects failed and left the bonding company on the hook for dozens of incomplete projects. The bonding company claimed it relied on the defendant's audit reports in issuing the bonds. Prior to issuing the bonds, the Plaintiff reviewed the Defendant's audited financial statements and attended meetings to evaluate the asphalt company's ability to perform. Carlock Copeland filed a motion to dismiss under Twombly and Iqbal, arguing that the Plaintiff never stated what was inaccurate in the audited financial statements or how the Defendant breached the standard of care in its audit. On January 25, 2011, the Court granted the motion and dismissed the complaint in its entirety.

This result may be appealed, so stay tuned for further results.

Lee C. Weatherly and D. Gary Lovell were successful in obtaining summary judgment in United States District Court for a private organization providing health care to a correctional institution in Lexington County, South Carolina. Plaintiff was the estate of an inmate at the Lexington County Detention Center who committed suicide by hanging in 2007. Following the inmate's death, Plaintiff filed an action against, among others, the correctional healthcare organization pursuant to 42 U.S.C. § 1983. However, Lee argued that Plaintiff failed to bring forth any evidence that the private health care organization had a specific written or unwritten “policy or custom” that caused injury to the inmate, as is required to bring a cause of action against an organization under 42 U.S.C. § 1983. Lee also argued that Plaintiff failed to set forth any specific allegations against the private health care organization which rose to the level of deliberate indifference to the inmate's medical needs. The Judge found these arguments persuasive and ruled that the Plaintiff had failed to bring forth sufficient evidence to oppose the motion, dismissing the 42 U.S.C. § 1983 claim with prejudice. For more details on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com.

Renee Little obtained summary judgment for a local pediatric group in a matter involving a slip and fall where plaintiff allegedly sustained disabling cervical injury.

Shannon Sprinkle, John Bunyan and Joe Kingma won the dismissal of a federal action against a law firm that handles collections matters throughout the Southeast. The Plaintiff alleged claims based on the law firm's initiating foreclosure proceedings against her. In dismissing the case, the Northern District of Georgia determined that the law firm was not engaged in "debt collection" under the Fair Debt Collections Practices Act because it was enforcing its client's valid security interest in the Plaintiff's property. The district court further concluded that the assignment of the Plaintiff's loan and security deed was validly made retroactive under Georgia law. In addition to the FDCPA claims, the district court also dismissed the Plaintiff's state law fraud and civil RICO claims.

John Bunyan and Joe Kingma obtained the dismissal of a federal court action alleging that a lawyer committed legal malpractice while representing a corporation in a breach of contract action. The Northern District of Georgia determined that the individual Plaintiff, who was the owner of the corporation, did not have standing to assert any claim for damages based on the lawyer's representation of the corporation in the prior litigation.

Marquetta Bryan defeated a charge of employment discrimination on the behalf of a Georgia Community Service Board ("CSB"). The complainant alleged that she was discriminated against on the basis of her race, and retaliated against for engaging in protected activity, in violation of Title VII of the Civil Rights Act. On December 20, 2010, the EEOC issued its determination that it was unable to conclude that the CSB had violated any federal statutes with respect to the claimant's employment and dismissed claimant's charge.

Partner Gary Lovell and Associate Lee Weatherly recently won a Motion to Dismiss for their client, a hematologist, in a Charleston, South Carolina medical malpractice case. The Plaintiff alleged that the hematologist was negligent in his management of the Plaintiff's care after he underwent a splenectomy. The Plaintiff contended that the hematologist neglected to diagnose a post-surgical infection leading to an unnecessary cholecystectomy and months of unnecessary complications including pulmonary insufficiency, respiratory insufficiency and renal failure. As required under South Carolina law, the Plaintiff filed the supporting affidavit of a medical expert with his Notice of Intent to File Suit. However, the expert (a California surgeon) died in the days before the affidavit was filed with the Court. Lee argued to the Court that Plaintiff's Notice of Intent to File Suit was deficient and invalid because the Plaintiff failed to file an affidavit of a living expert witness contemporaneously with their Notice of Intent to File Suit as required under South Carolina law. Second, he argued that Plaintiffs Notice of Intent to File Suit was deficient and invalid because the Plaintiff's expert witness was not Board Certified in hematology nor did he actively practice in that area. Finally, he argued that Plaintiffs failed to file a Summons and Complaint within the time requirements mandated by South Carolina law. The Judge found these arguments persuasive and ruled that the hematologist be dismissed with prejudice. For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com.

The Georgia Court of Appeals affirmed a defense verdict in a brain damaged baby case handled by Tom Carlock and Eric Frisch. The case was tried to a defense verdict after more than five weeks of testimony. On appeal, the issues included whether the trial court properly limited the amount of time the injury child was present in the courtroom. In a case of first impression in Georgia, the Court held that the trial court has the discretion to limit a plaintiff's presence in the courtroom in cases involving severe neurological injuries.

On November 17, 2010, Shannon Sprinkle and Joe Kingma defeated claims by a recently divorced husband against a lawyer who at one time had represented both husband and wife. The husband claimed that the lawyer, while representing both the husband and the wife, drafted a divorce agreement which was adopted and made a part of the divorce decree. He claimed that there was a "side deal" to give parcels of land back to him after the divorce was final. The trial judge based his grant of summary judgment on the terms of the executed settlement agreement and his unwillingness to collaterally attack the divorce decree which had not been vacated. Additionally, the judge ruled that the husband's assertions amounted to a confession of an attempt to defraud his creditors. "The principal that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing," in pari delicto, is a common defense in accounting malpractice cases, but is seldom seen in attorney malpractice cases. This result may be appealed, so check back for further developments.

David Overstreet and Doug MacKelcan recently obtained summary judgment for a lawyer accused of professional negligence in the Lowcountry. In the suit, the Plaintiff claimed the lawyer inappropriately prepared an elderly woman's estate plan resulting in over a $400,000 loss to the estate. After considerable discovery, including expert depositions, the Court granted the lawyer's motion as a matter of law.

Charles M. McDaniel, Jr., in a case pending in Federal Court in Mobile, AL, secured a multi-million dollar settlement on behalf of an excess insurer in a catastrophic industrial accident, which occurred on the insured's premises. The excess insurer settled the claim of a contractor's injured employee, and pursuant to an indemnity agreement between the insured and the contractor, obtained contribution from the contractor's excess insurer for the contractor's share of the loss.

John Rogers, Christopher Meeks, and Joe Kingma obtained a denial of a petition for writ of certiorari to the United States Supreme Court for a lawyer who had been appointed as a receiver for several convenience stores as the result of a state civil RICO proceeding. The RICO proceedings developed out of allegations that the previous owners of the convenience stores had engaged in a scheme to defraud their customers by tampering with the fuel pumps. The lawyer was appointed receiver and ordered to seize all assets and property of the stores. Nonetheless, the new owners of the convenience stores claimed that the lawyer unlawfully seized certain inventory property contained in the stores. The new owners filed suit in the United States District Court for the Southern District of Georgia and filed a motion for a temporary restraining order and preliminary injunction. Carlock Copeland defeated the motion for a temporary restraining order and preliminary junction and filed a motion to dismiss, which the district court granted on the basis of a lack of subject matter jurisdiction. The United States Court of Appeal for the Eleventh Circuit affirmed the district court, holding that the district court lacked subject matter jurisdiction to hear claims against a state court appointed receiver. Despite the plaintiffs'' repeated losses, they petitioned the United States Supreme Court to review the Eleventh Circuit's decision but were denied certiorari after Carlock Copeland's lawyers filed their brief in opposition.

David Overstreet and Andrew Countryman obtained the dismissal of a legal malpractice claim in South Carolina on grounds of attorney immunity to claims by third parties. Plaintiff sued his ex-wife and her lawyer for interference with contractual relationships and civil conspiracy after Plaintiff maintained they prevented a multi-million dollar business deal from closing. The court granted our motion to dismiss on the grounds that ex-husband Plaintiff had no standing to sue the ex-wife's lawyer for actions taken in the course of his representation.

On September 30, 2010, Wade Copeland and Lee Atkinson obtained a verdict in favor of the Defendant doctor and her anesthesia service in an action tried in the State Court of Gwinnett County. The Plaintiff claimed that the doctor, who is a pain management specialist, unnecessarily and inappropriately performed a cervical epidural injection for a condition known as atypical facial pain. The Plaintiff, who had no prior problems with her left side, ended up having a significant disability to her left hand which became totally disabled. She also had significant permanent injuries to both her left arm and her left leg. The Plaintiffs contended that the doctor negligently injected medicine into the spinal cord itself. The Plaintiff also contended that the procedure should have never been performed and that it was performed at the wrong level in the spinal cord. The defense acknowledged that there had been an injury to the Plaintiff's left hand resulting from the needle striking the spinal cord, but this was a risk of the procedure and not a breach of the standard of care. The Defendant and the defense experts agreed that if medicine was injected into the spinal cord that it would have been a breach of the standard of care. The Plaintiffs had incurred over $90,000 in medical expenses with the prospects of approximately $400,000 in future medicals and claimed another $500,000 in future lost wages. Prior to trial, the Plaintiff's attorney made a "non-negotiable" demand of $1.5 million that was rejected. The attorney asked the jury to return a verdict for $6 million in his final argument. The trial took nine days and the jury deliberated for nine hours before returning its verdict for the Defendants.

Marquetta Bryan defeated a charge of employment discrimination on the behalf of a Georgia Community Service Board ("CSB"). The complainant alleged that he was subject to illegal discrimination on the basis of his sex (male) in violation of Title VII of the Civil Rights Act of 1964, as amended. He resigned his employment and alleged that he was constructively discharged due to the environment created by the alleged discrimination. Marquetta filed a response to the claimant's charge on the behalf of the Board. On September 30, 2010, the EEOC issued its determination that it was unable to conclude that the CSB had violated any federal statutes with respect to the claimant's employment and dismissed claimant's charge.

Michele Jones and Joe Kingma represented a law firm that was sued by a Builder in Georgia Superior Court. The claims arose out of a failed real estate development and a failed mortgage lender. The Builder had acquired lots financed by an acquisition and development loan that was closed by Michele and Joe's client. The development ultimately failed, as did the mortgage lender. The construction company sued the failed lender and its principal, a related builder, the Bank that had taken assignment of the A&D loans, and a Title Company. The lawyer faced claims of fraud and misrepresentation. The plaintiff also attempted to assert claims for conspiracy, breach of the duty of good faith and fair dealing, and violation of the Georgia RICO statute. All of these claims were dismissed on summary judgment by the court's order on September 8, 2010. The case goes on against other defendants, and may be appealed, so check back for further developments.

Shannon Sprinkle, John Bunyan, and Joe Kingma achieved summary judgment for a City Attorney faced with allegations of malicious prosecution filed in Federal Court. The Mayor had been indicted on two counts of violating his oath of office after engaging in questionable transactions involving City funds and endangering a community development grant due to conflicts of interest. After that indictment was dismissed based on the technical invalidity of a City Ethics Ordinance, the Mayor sued the City Attorney, City Manager, and former and current City Council members.

Carlock Copeland filed a Motion for Summary Judgment, which the Federal Judge granted on August 27, 2010. The Court found that there was no evidence that the defendant instigated the prosecution or that he knew that a city ordinance had not been properly passed.

This matter may be appealed, so stay tuned for further updates.

Jason Hammer represented a dog owner sued in Cobb County State Court after his Chow mix bit a next door neighbor. It was undisputed that the dog's rabies vaccinations were not current and the Plaintiff underwent $12,000 worth of rabies shots in addition to internal and external sutures to repair the bite wound to his forearm. The case was defended primarily on liability. Although the Plaintiff claimed the dog jumped the owner's fence, Defendant presented the Plaintiff's ex-fiancé, who testified that she witnessed the incident and saw Plaintiff reach over the fence to pet the dog when the bite occurred. The jury returned a verdict in favor of the Defendant in less than an hour.

Pete Werdesheim secured dismissal of a legal-malpractice action in the State Court of Fulton County.  In short summary, the plaintiffs contended that Carlock Copeland's clients had missed the statute of limitations in an underlying personal-injury action and then concealed the mistake.  In an order entered August 17, 2010, Judge Jay M. Roth found that even after amending their complaint, plaintiffs failed to state a claim for fraud that would toll the statute of limitations, necessitating dismissal of the case.

Adam Appel was successful in obtaining a defense verdict after a three day trial in United States District Court, Northern District of Georgia, Atlanta Division, on behalf of his Correctional Officer client in an Excessive force and deliberate indifference to an inmates serious medical needs case. The Plaintiff, an inmate, alleged that three correctional officers used excessive force against him during the intake process resulting in a dislocated shoulder which required surgical repair. The inmate also alleged that the correctional officers denied his request for medical attention after the alleged use of excessive force. The correctional officers denied the inmates claim that they used force against him or that he requested medical attention. The plaintiff did require surgical repair to his shoulder, however, the defendants argued that the Plaintiff had a preexisting condition that resulted in a dislocation from the application of minimal force. The parties agreed to a bench trial before Judge Orinda Evans. Judge Evans entered a Verdict for all defendants on July 28, 2010. The case is Willie Waters v. Bennie Parnell, Lt. F.E. Wiley and Durane Carter.

Michele Jones and Joe Kingma had their attorney client dismissed from a lawsuit filed by a title insurance company. Judge Barrett in Towns Superior Court granted the motion. This case may be appealed, so stay tuned for further developments.

Partner Gary Lovell and Associate Lee Weatherly were successful in obtaining summary judgment in Charleston, South Carolina for a local urgent care facility in a wrongful death, medical malpractice case. The Plaintiff alleged that one of the facility's physicians and his physician's assistant were negligent by failing to send the patient to the hospital, or directly contacting her gastroenterologists, when she was seen for continuing abdominal pain and weight loss of over 125 pounds.  The Plaintiff claimed that at the time of the visit the patient was suffering from chronic mesenteric ischemia, which resulted in her death only weeks after her visit to the urgent care facility.  In their motion for summary judgment, and at the motion hearing, Lee argued that the Plaintiff's expert could not state to the requisite degree of medical certainty that had the patient been admitted to the hospital, or her gastroenterologist been contacted, her death could have been avoided.  Therefore, the urgent care facility was entitled to summary judgment on the element of proximate cause.  The Judge found this argument persuasive and ruled that the Plaintiff had failed to bring forth any evidence of proximate cause and dismissed the case with prejudice.  For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com.

Partner Mike Ethridge and Associate Jennifer Blanchard obtained summary judgment in a declaratory judgment action they filed on behalf of an insurer in the South Carolina Federal District Court. The court granted Mr. Ethridge's Motion for Summary Judgment and held that the claims being asserted against the insured fell within the policy's express exclusion for claims arising from an assault or battery. As a result the court ruled that the insurance carrier had no obligation to either indemnify or defend the insured in the underlying tort action.

Partner Adam Appel and Of Counsel Kim Ruder recently obtained summary judgment on behalf of a Medical College of Georgia anesthesiologist in a medical malpractice case. In that case, the Plaintiffs claimed that the anesthesiologist was negligent in the manner that he transferred care of a neonate to the NICU staff. Plaintiffs claimed that as a result of the doctor's conduct and the conduct of his resident, the child's endotracheal tube became insecure and the child lost his airway, coded and suffered a significant brain injury and Cerebral Palsy. Plaintiffs claimed damages against the doctor as well as other medical professionals in an amount exceeding $16 million dollars. On summary judgment, Adam and Kim successfully argued that the anesthesiologist, as an employee of the Board of Regents, was entitled to official immunity for the claims being asserted against him, and was thus entitled to dismissal. As a result, the physician was dismissed from the suit. The case remains pending against other health care providers and this case could be appealed following the trial of the matter, which is scheduled for November 2010.

Charlie McDaniel and Julie Oh obtained summary judgment in a declaratory judgment action filed in the USDC for the Southern District of Georgia, Savannah Division.  The Court ruled the insurer was not obligated to provide a defense or indemnification under a homeowner's policy and an umbrella policy, for a suit filed against the insured arising out of the sale of a house.  The Court determined certain allegations contained in the complaint did not arise as a result of an occurrence, and thus coverage was not afforded.  Additionally, for the remaining allegations, the policy's business activities exclusion barred coverage.

Fred Valz and Paul Moore were affirmed on appeal by the Court of Appeals of Georgia in a case of first impression upholding a 1995 amendment to the Georgia Workers' Compensation Act. They represented a local painting company in a wrongful death claim involving an employee of a temporary contracting firm. Valz and Moore received summary judgment for the defense in the trial court, contending the defendant was immune from suit under the Workers' Compensation Act ("WCA"). Valz and Moore were affirmed on appeal on April 28, 2010.

The Oconee Community Service Board terminated Complainant's employment after it determined that the Complainant falsified medical documents submitted to justify several days of leave from her employment. The Complainant appealed the Board's decision to the Georgia Office of State Administrative Hearings. A hearing was held on March 17, 2010. Marquetta J. Bryan represented the the employer at the hearing. In a decision issued April 5, 2010, the Administrative Board upheld the Community Service Board's decision to terminate the Complainant on the grounds that the employer had met its burden of proof, by presenting evidence and witnesses, to warrant upholding the employer's decision.

Partner Gary Lovell and Associate Michelle Stock were successful in obtaining a defense verdict in Fulton County for a local General Surgeon accused of medical malpractice. The State Court jury returned a defense verdict after several hours of deliberation on April 1st. The plaintiff alleged that our client negligently removed a healthy kidney and adrenal gland during a routing laparoscopic gallbladder removal surgery. The defense team, led by Gary, convinced the jury that our surgeon client properly removed all abnormal appearing tissue, including the adrenal gland and kidney, in connection with surgery for removal of a suspected cancerous mass. The mass was determined to be benign on subsequent pathological study. The case has not been appealed and the judgment in favor of our client is final. For more information on the case, contact Gary at glovell@carlockcopeland.com.

John Bunyan and Shannon Sprinkle obtained Judgment on the Pleadings in Federal Court for their lawyer-client, a well respected Guardian Ad Litem.  In a case of first impression, the Northern District of Georgia found that the Guardian Ad Litem was not subject to Plaintiff's claims for alleged violations of his constitutional rights, holding that the Guardian was not a state actor.

Dan McGrew and Heather Miller recently obtained a defense verdict on behalf of their client, an Electrophysiologist in Georgia and the cardiology group he was associated with. The Defendant performed a lead extraction procedure on a young female patient. Unfortunately, a complication arose during the procedure whereby the patient experienced a massive bleed and died. Despite the bad outcome, the DeKalb County jury found that the Defendant did not breach the applicable standard of care. The jury recognized the serious nature of the procedure and acknowledged that death was a risk of the procedure. Judgment was entered in favor of all defendants.

Plaintiff terminated her vehicle lease early and brought suit against the financing company claiming they owed her a refund.  Kate Hughes filed a counterclaim on behalf of the financing company claiming Plaintiff actually owed the financing company pursuant to the Lease Agreement.  Kate arbitrated the case and successfully defended against Plaintiff's claim and obtained a judgment for her client for additional money owed pursuant to the Lease Agreement.

Billy Newcomb and Joe Kingma were retained to represent an attorney being investigated by the Georgia Bar for possible ethical violations in connection with his legal representation of a client in a divorce proceeding. The Office of the General Counsel ultimately found no evidence that the attorney acted unethically, and dismissed the grievance filed by his client.

Partner Mike Ethridge and associate Michael McCall obtained summary judgment for Allstate Insurance company in a breach of contract/bad faith action filed in South Carolina's Federal District Court. The case involved the interpretation of policy provisions relating to choice of law and Underinsured Motorists coverage. In the case the plaintiff/insured had filed suit against Allstate alleging that South Carolina law should be used to interpret her Georgia automobile policy when the accident giving rise to the underlying claim occurred in South Carolina and the insured was a resident of South Carolina at the time of the accident. The court disagreed and granted Mr. Ethridge's Motion for Summary Judgment holding that Georgia law should apply.

David Overstreet and Mandi Dudgeon obtained a defense verdict for a real estate attorney following a trial in Columbia, SC. Plaintiffs alleged that the attorney improperly took a commission on a real estate transaction for which he was also the closing attorney, failed to disclose that he was receiving that commission, failed to disclose other interests, and failed to disclose his ongoing professional relationship with the seller. The jury rendered a defense verdict for the attorney on the legal malpractice claim. The jury returned a verdict of $4,350 on the breach of fiduciary duty claim, but that award was then reduced by the court to zero following post trial motions on the issue of set off for settlement funds already tendered by the codefendant.

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. 

In February, 2010, Doug Smith obtained a defense verdict under Georgia's Equine Activities Act. The plaintiff was thrown from a horse prior to her riding lesson from the defendant and sustained serious shoulder and arm injuries. The defense successfully argued that the Equine Activities Act provided immunity to the defendant and that the plaintiff assumed the risk of injury to herself.

Kate Hughes recently won a Motion for Summary Judgment for a national restaurant chain in an alleged slip and fall case. Kate showed the court that the plaintiff failed to prove there was a defect with the floor of the restaurant and that the case should be dismissed.

Eric Frisch and Jason Hammer successfully defended an obstetrician at trial. Plaintiffs alleged the doctor failed to recognize and/or document shoulder dystocia, resulting in a permanent and severe obstetrical brachial plexus palsy involving all of the nerves from C5 to T1. The case was tried to a defense verdict in DeKalb County. On appeal, Jason successfully moved the Court of Appeals to dismiss the case on procedural grounds. The Georgia Supreme Court subsequently denied Plaintiffs' petition for certiorari.

Billy Newcomb and Joe Kingma had their motion to dismiss on behalf of a lawyer defendant granted in federal court on December 11, 2009. The suit was filed by a factoring company who alleged that its security position was damaged when a textile operation sold its assets. The defendants included the textile operation, its purchaser, a related business and the lawyer with whom the seller consulted. The factors claims were for conversion as well as conspiracy to violate the Uniform Fraudulent Transfer Act. The court ruled that the complaint at most speculated that the lawyer conspired and that such speculation was not enough to withstand the motion. The suit continues against the other defendants.

In a professional negligence action filed in the Superior Court of Dodge County, a forestry services company was countersued for claimed damages in excess of $1,000,000. After deposing the claimant's forestry experts, Broderick Harrell filed a motion for summary judgment which also requested attorney fees. Prior to hearing on the motion, the claimant dismissed all claims against the forestry services company.

David Overstreet and Andrew Countryman recently obtained summary judgment for a closing attorney in a legal malpractice case. A developer sued his closing attorney for failure to properly advise him over the closing, which allegedly resulted in the developer being sued. After the Plaintiff's deposition, a Motion for Summary Judgment was filed on behalf of the closing attorney. After reviewing deposition testimony and related documents, the Court granted the Motion. The Court held that the Plaintiff failed to file the Complaint within the applicable statute of limitations under the South Carolina "notice" rule, as well as failed to timely name an expert witness to support its allegations of professional negligence.

Shannon Sprinkle and Joe Kingma won Summary Judgment for an Atlanta lawyer accused of malpractice, breach of fiduciary duty, and fraud. The Plaintiff backed a multi-million dollar mixed-use development in Cartersville and sued after the project failed and he was called upon to satisfy his guaranty. In addition to his payment on the guaranty, the Plaintiff sought damages for lost investment opportunities, diminished credit rating, and more than $300,000 in attorney's fees. He claimed that the lawyer representing the borrower labored under conflicts of interest, owed him a duty, and gave bad advice. He bolstered his claim with the testimony of the author of a six volume Legal Malpractice Treatise, an Emory law professor, and one of the deans of the banking bar in Atlanta. Nonetheless, the Defendants’ Motion for Summary Judgment was granted. The case may be appealed so stay tuned for further developments.

Andrew Eaton, John Rogers, and Joe Kingma 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.

UPDATE - Eleventh Circuit Affirms Motion to Dismiss in Suit Against Receiver
Andrew Eaton, John Rogers, and Joe Kingma had their recent grant of dismissal affirmed by the Eleventh Circuit on November 24, 2009. A federal judge in the Southern District of Georgia dismissed the lawsuit before discovery ever began, and the Eleventh Circuit unanimously affirmed. A Supreme Court appeal is possible, so stay tuned. 

Pete Werdesheim, Lindsey Hettinger, and Joe Kingma obtained summary judgment in an abusive-litigation action brought against their lawyer client in the State Court of Gwinnett County.  In short summary, the plaintiff contended that Carlock Copeland's client maliciously pursued a groundless claim, which allegedly caused millions of dollars in lost business and financing opportunities.  In an order entered November 24, 2009, Judge Pamela D. South determined that no triable issue existed as to whether Carlock Copeland's client had acted in good faith in prosecuting the underlying lawsuit against the plaintiff and reasonably relied on her experience in similar cases in concluding that her insurance-company client had a viable cause of action.

Gary Lovell and Michelle Stock obtained a defense verdict in a one week medical malpractice and wrongful death case in Fulton County State Court where they defended a cardiologist accused of failing to diagnose and treat the decedent's cardiovascular disease. The suit arose after the decedent suffered a sudden cardiac death in 2005. The Plaintiff alleged that the defendant cardiologist failed to properly counsel her husband on his cardiac condition and to communicate with the referring physician. The defense presented evidence that the defendant cardiologist properly diagnosed and counseled the decedent. The jury returned a verdict in favor of the Defendants in an hour.

In a professional negligence action, a land developer sued an engineering firm for alleged negligent soil study service. The damages alleged were significantly greater than the limitation of liability clause in the contract between the parties. Broderick Harrell successfully argued for enforcement of the contract terms at the trial court level.

The ruling was affirmed by the Georgia Court of Appeals.

Pete Werdesheim and Lindsey Hettinger obtained summary judgment in a mortgage-fraud action brought against a lawyer in the Superior Court of Ben Hill County. After briefing and oral argument, Judge John C. Pridgen held that Plaintiffs' signing of the allegedly fraudulent closing documents without carefully reading them constituted a failure to exercise ordinary diligence. Plaintiffs argued that an attorney-client or other fiduciary relationship existed with the lawyer-defendant, thus eliminating their duty to read the closing documents. Judge Pridgen rejected this position as well and concluded, as the Carlock Copeland defense team argued, that the lawyer-defendant represented only the lender in the subject transaction. 

On November 12, 2009, Fred Valz and Jessica Cabral obtained a defense verdict in a trucking case in Spalding County State Court. The lawsuit arose from a motor vehicle accident that occurred on a dark and foggy morning on a rural highway in Georgia. The Plaintiff rear-ended the Defendant's garbage truck, which was stopped partially in the highway. The Plaintiff alleged that the Defendant's truck was operating without any rear lights on at the time of the accident and produced two witnesses that saw the Defendant's truck without rear lights on shortly before the accident. The Plaintiff claimed she suffered a severe and permanent traumatic brain injury and could never return to gainful employment. The defense presented expert testimony that the Plaintiff did not have any cognitive deficits and could return to her previous job. After two and half hours, the jury returned a verdict in favor of the Defendants.

Scott Huray and Jason Hammer successfully defended their client in the United States District Court, Northern District of Georgia, after the Defendant was sued for the wrongful death of a motorcyclist. The suit arose from a tragic motor vehicle accident that occurred in the north Georgia mountains. The Defendant was turning left into a church parking lot when the motorcyclist, traveling the opposite direction, came over the hillcrest and collided with the Defendant's vehicle. The motorcyclist died instantly as a result of his injuries. The Plaintiffs, supported by an accident reconstruction expert, argued that the motorcycle was in view, but the Defendant simply failed to yield while turning left. The defense included its own expert and showed that the motorcycle was not in view at the time of the turn and it was the motorcycle's excessive speed combined with the topography of the roadway that caused the accident. The jury returned a verdict in favor of the Defendant in less than thirty minutes.

Scott Huray and Jason Hammer represented a Florida-based chemical manufacturing company sued in Walton County Superior Court for negligent failure to warn after the Plaintiff suffered third degree chemical burns from a sulfuric acid-based drain cleaner. The Plaintiff claimed the warning label failed to adequately warn her of the dangers of the product and that had she known the inherent dangers of sulfuric acid she would have never purchased the drain cleaner in the first place. The defense included expert testimony on liability and damages, arguing that the label was sufficient and that the Plaintiff failed to mitigate her damages by delaying treatment for her burns, which worsened her scarring. The jury returned a verdict in favor of the Defendant in less than an hour.

Scott Huray and Jason Hammer obtained summary judgment in their client's favor in a case against a restaurant. The Plaintiff, an employee of the restaurant, was cited by the City of Atlanta Police Department for serving beer without a license. Assuming her employer would handle the citation, the Plaintiff never appeared for her court date and was subsequently arrested on a bench warrant. Plaintiff filed suit in Fulton County Superior Court alleging negligence, intentional infliction of emotional distress, fraud and punitive damages. In affirming the trial court's decision, the Court of Appeals held that the Plaintiff's own negligence in failing to appear for her court date was the proximate cause of her injuries, there was no "extreme and outrageous" conduct to support intentional infliction of emotional distress, and that the fraud claim failed in the absence of any evidence that the Plaintiff's supervisors' representations that they would handle the citation were made without any intention to do so. The punitive damages claim of course failed in the absence of the underlying torts. Certiorari was denied by the Supreme Court.

Scott Huray and Jason Hammer secured a favorable summary judgment ruling in Hall County Superior Court on behalf of their insurance agency client. Former owners of a construction company alleged the agency breached its fiduciary duties with respect to the issuance of construction bonds on several high-dollar construction projects. When the projects went south, the surety on the bonds sought indemnity from the former owners, who filed a third-party complaint against the insurance agency. Assuming without deciding that a fiduciary relationship existed, the Court agreed with the defense and held that the former owners' failure to read the bond agreements and subsequent failure to provide proper notice to the surety of the fact that they no longer had an interest in the construction company precluded recovery.

In a negligence action stemming from a traffic accident, Mike Ethridge and Jack Daniel successfully obtained Summary Judgment for a South Carolina company that owned and operated a 150 room hotel in Myrtle Beach, SC, based on a scope of employment argument.

The Plaintiff was an exotic dancer that lived in the hotel and befriended the Hotel Manager. The Hotel Manager worked as an independent contractor and lived on the premises. The Plaintiff was riding as a passenger in the Hotel Manager's car when they were involved in a very serious accident. The Plaintiff had over $150,000.00 in medical bills and was claiming loss of future earnings and that she was now unemployable due to alleged brain trauma. The Plaintiff was pursuing a theory of vicarious liability against the Defendant company based on the Manager's statements and testimony that he was on call 24 hours a day 7 days a week and responsible for many off sites duties as the Hotel Manager.

The Circuit Court Judge ruled in favor of summary judgment as he found no evidence in the record to support a claim that the Hotel Manager was working at the time of the accident.

Dave Root and Cheryl Shaw obtained a defense verdict in an industrial accident case in Bartow County. The plaintiff truck driver was dumping a truckload of materials at the defendant's landfill when he was struck in the side by an excavator operated by a landfill employee, causing several broken ribs and a punctured lung. The plaintiff claimed that the employee failed to keep a proper lookout and was negligent in operating the excavator. Dave and Cheryl argued that the plaintiff, a certified crane operator, assumed the risk of injury when he stepped into the path of the excavator and that the plaintiff failed to exercise appropriate caution for his own safety. After deliberating for less than an hour, the jury returned a verdict in favor of the defendants.

Tom Carlock obtained a defense verdict in a two week medical malpractice case in Fulton County Superior Court where they defended a surgeon who was accused of delaying the diagnosis of a bowel leak after bariatric surgery. The attorneys argued that the doctor recognized the plaintiff's complications in a timely manner and returned her to surgery. However, due to the bowel perforation she had a prolonged recovery and expensive medical bills. After the jury deliberated they returned a verdict in favor of the defense.

Partner Gary Lovell and Associate Lee Weatherly recently prevailed for our physician client in a case of first impression relating to South Carolina's "Expert Affidavit" requirement under the 2005 Tort Reform Legislation. The defense team obtained a favorable ruling from the trial judge finding that the Notice of Intent Statute, and South Carolina Law, require and mandate the filing of an expert affidavit alleging one act of negligence at the time Plaintiff files a Notice of Intent to sue a medical professional. Plaintiff argued, in opposition, that the general provisions of the "Expert Witness" laws in South Carolina automatically grant a Plaintiff an additional 45 days to obtain and file an expert affidavit in the Notice of Intent phase of the litigation. The case is currently on appeal to the Court of Appeals of South Carolina. A ruling is expected in the summer of 2010. Contact Gary Lovell at glovell@carlockcopeland.com for more information.

A small law firm faced big liability when a client accused a former lawyer of stealing his settlement funds. But the lawsuit died on the vine a month later. A motion to dismiss filed by John Rogers and Andrew Eaton eliminated not only claims for legal malpractice claims but also claims for fraud, breach of contract, and attorney's fees.

Fred Valz and Erica Parsons defended an insurer who had issued a policy of auto liability insurance and an excess liability policy. The insurer was served with a lawsuit as a purported uninsured motorist carrier. The excess insurance policy, issued in North Carolina, had liability limits of $1 Million but did not provide uninsured motorist benefits. The insurer tendered the limits under the liability policy but failed to timely respond to certain Requests for Admissions seeking affirmation of coverage for uninsured motorist benefits under the excess policy and such requests were deemed admitted. Additionally, the named defendant failed to answer and default judgment was entered against him in the amount of $854,727.04. Fred and Erica moved to set aside the admissions and Plaintiff moved to impose sanctions against the insurer for failure to respond to discovery. After extensive briefings and oral argument, the court granted the insurer's Motion to Set Aside Admissions and denied the Motion for Sanctions. Because the admissions were withdrawn, the Plaintiff could not obtain any further recovery under the policy, and he dismissed his claims against the insurer.

Fred Valz and Erica Parsons defended a homeowners' insurer against claims for coverage for an accident that occurred away from the insured premises. The parents of a teenage girl were hosting her birthday party at a field belonging to family friends where guests could ride four-wheelers and engage in other outdoor activities. The teenager and her friend were seriously injured when the four-wheeler they were riding turned over. The parents sought coverage for the injuries under their homeowners' policy of insurance, contending that the field, located several miles from the insured premises, was being used "in connection with the insured premises." In affirming summary judgment in favor of the insurer, the Court of Appeals rejected this argument, explaining that adoption of such an expansive definition of "insured premises" would expose insurers to virtually endless liability. Mason v. Allstate, 2009 WL 1636588.

On August 25, 2009 Dan McGrew and Kim Ruder obtained a defense verdict in a medical malpractice case against a nursing home attending physician in Upson County. Plaintiffs alleged that the attending physician failed to properly care for his elderly patient's decubitus ulcers. Plaintiffs contended that improper wound care allowed the decubitus ulcers to deteriorate and become infected, resulting in overwhelming sepsis and death. Plaintiffs further contended that the physician violated the standard of care in not inserting a feeding tube in the patient during her final months of life. The jury found in favor of the nursing home attending physician on the basis that the evidence demonstrated that the nursing home patient suffered from advanced multi-infarct dementia and end-stage Alzheimer's disease, which had progressed to a terminal stage at the time of the patient's death. The evidence further demonstrated that the actual cause of death was an overwhelming urinary tract infection that led to the sepsis, as opposed to infected decubitus ulcers. After deliberating less that five minutes, the jury found that the nursing home attending's care over a six year period complied with the standard of care.

Following a two week trial, Mr. Ethridge obtained a defense verdict for his client in a $6,500,000 claim relating to the design and construction of a concrete slab in a lighting manufacturing facility in North Charleston.

Mr. Ethridge obtained summary judgment for a manufacturer of soil anchor systems in a multi-million dollar products liability class action suit. The Plaintiffs were a group of mobile home owners who alleged that the soil anchor tie down system failed to adequately secure their homes in high winds. After obtaining summary judgment at the Trial Court, Mr. Ethridge prevailed on the appeal before the South Carolina Court of Appeals. 

Mr. Ethridge represents an architectural firm in a multi-million dollar lawsuit filed by Charleston County relating to the construction of the county's new judicial center.

This case is ongoing.  Please check back for future updates. 

Mr. Ethridge filed a successful bid protest against the State of South Carolina for an improper contract award for renovations to the Citadel (Military College of South Carolina) under the South Carolina Procurement Code. Mr. Ethridge successfully obtained an Order setting aside the contract award and authorizing a rebid on the project, which resulted in the contract ultimately being awarded to the client. 

Bill Jones defended a Georgia developer in a lawsuit brought by three individuals who had purchased lots in a large development near Lake Oconee, Georgia. Plaintiffs filed their lawsuit for violation of the Interstate Land Sales Act and Florida's Deceptive and Unfair Trade Practices Act in federal court in Florida. Bill filed a motion to dismiss Plaintiffs' claims because they lacked jurisdiction over Bill's clients. Shortly after the motion was filed, Plaintiffs dismissed the case and did not refile the lawsuit.

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.

Mr. Ethridge is representing a bonding company in a multi-million dollar construction case relating to alleged construction deficiencies in a large multi-unit condominium complex in Horry County, South Carolina.

This case is ongoing, please check back for future updates.

Mr. Ethridge obtained a favorable settlement for an insurer in a bad faith case arising out of a $20,000,000 judgment against an insured.

On June 1-5, 2009, Adam Appel and Marquetta Bryan represented a public entity in an ADA discrimination trial, Campbell Peery v. Serenity Behavioral Health, 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. 

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). 

Doug MacKelcan represented a former administrator with the Security Department of a large homeowners association in Beaufort County, South Carolina. Plaintiff alleged that Defendant had him falsely arrested and claimed damages in excess of $100,000 as a result of the arrest. After a three day trial, the jury returned judgments in favor of Defendant on all causes of action except for one, resulting in only $3,000 of exposure to the Defendant.

Fred Valz and Erica Parsons filed a declaratory judgment action on behalf of an automobile insurer, contending that the insurer had no further duty to defend or indemnify its insured because she breached her duty under the policy to cooperate with the insurer and because she and and her assignees engaged in fraudulent conduct designed to manufacture a bad faith claim against the insurer. Following submission of letter briefs, the District Court held that insurer did not act in bad faith in paying policy limits without conditioning payment on release of its insured. Accordingly, the Court granted the insurer's Petition for Declaratory Judgment and the Eleventh Circuit affirmed on appeal.  In an unpublished opinion, the District Court also dismissed, sua sponte, the assignees' lawsuit for bad faith.

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.

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. 

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.

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.

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.

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.

D. Gary Lovell, Jr. and Lee Weatherly obtained a defense verdict for a OB/GYN and his practice group, in a medical malpractice case filed in York County, South Carolina. In the trial, the Plaintiff claimed that the doctor failed to diagnose preeclampsia in a pregnant patient. The day after her visit to the OB/GYN the Plaintiff suffered an apparent seizure which she claimed caused her permanent injuries, leaving her unable to care for herself. Plaintiff also claimed her seizure caused the death of her child 2 1/2 years after her emergency birth. However, the jury determined that there was no evidence of preeclampsia on the patient's last visit and the doctor met the standard of care in his treatment. The jury returned a unanimous verdict in favor of the physician after deliberating for approximately two hours.

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. 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.

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)

Chris Whitlock and Amy Urban handled a case for a major insurance client where the Claimant sustained a catastrophic back injury and a superadded psychological injury. The Claimant also had a pre-existing seizure disorder and, during a stay at mental health hospital, the Claimant fell and sustained a brain hemorrhage. Opposing counsel filed a hearing request with the State Board alleging a superadded head injury due to a slip and fall at the hospital. We were able to prove that the Claimant was not at the hospital due to psychological reasons, but due to unrelated substance abuse and that the claimant may have had a seizure which triggered his fall. Ultimately, we were able to settle this claim very reasonably to include a MSA cost projection analysis which did not anticipate future medical treatment for the Claimant's brain injury.

Chris Whitlock and Amy Urban handled a death claim where the deceased's family alleged that a heart attack and ultimate death, one year after the Claimant's severe work injury, should be considered a superadded injury. Several expert depositions were conducted and although each physician testified that the Claimant's stress level and emotional state after his work injury could have contributed to his heart attack, the prevailing expert opinion was that the Claimant most likely died of an arrhythmia due to his pre-existing heart condition. The claim was litigated at the State Board in Dalton, Georgia. Following a review of the evidence, the Judge agreed with the Employer/Insurer and denied the deceased's family members claim for death benefits due to an alleged superadded injury.

Chris Whitlock handled a case involving a 61 year old employee who was involved in a work related motor vehicle accident, who subsequently developed progressive dementia. The Plaintiff alleged that his dementia was related to the motor vehicle accident; however, the initial medical records from the ER did not suggest a traumatic brain injury. The employee's primary care physician and a dementia expert at John Hopkins University opined that the employee's dementia was related to the accident. Following independent medical evaluations with a neurologist and neuropsychologist, and after obtaining several expert witness depositions, the employee died as a result of complications caused by a fall down several stairs. The employee's widow sought death benefits, and argued that the employee's fall and ultimate death were the result of his dementia which had been caused by the work accident. The employer and insurer obtained a general autopsy, and a neuropathology autopsy (autopsy of the brain tissue) to determine the specific cause of the employee's dementia and the cause of his death. The autopsies revealed that the employee had no evidence of a traumatic brain injury, and his dementia was caused by spongiform encephalopathy (the human version of mad cow disease). At the hearing, the claimant presented expert medical evidence from the neurologist at John Hopkins which suggested that the employee's spongiform encephalopathy was either caused by the work related motor vehicle accident, or was hastened by the accident. The claimant testified and also presented two witnesses, clergymen from the employee's church, who testified that the employee's dementia did not begin until after the motor vehicle accident. The employer and insurer also presented fact witnesses including 4 of the employee's coworkers who testified that signs of his dementia were apparent prior to the motor vehicle accident. Additionally, the employer and insurer presented a live expert witness, the neuropathologist who had performed the brain autopsy. This expert witness testified that the employee had no evidence of a traumatic brain injury, and that even if he had sustained a brain injury as a result of the work related motor vehicle accident, such an injury would not have caused or hastened the employee's spongiform encephalopathy. The Judge found for the widow and awarded death benefits, however, we were successful on appeal to the Appellate Division. The Appellate Division found that the employer and insurer's expert witness was more credible than the claimant's expert, and determined that the claimant had failed to establish that the employee sustained a traumatic brain injury which aggravated or caused the employee's spongiform encephalopathy, and failed to present any evidence establishing a causal connection between the employee's motor vehicle accident and his death which resulted from a fall at home 11 months later. The Award of the Full Board was affirmed on appeal.

Chris Whitlock represented a client in a claim filed by an employee in Spalding County, Georgia, who was shocked by an electric cattle prod. Evidently, she was "zapped" by a co-worker in what we later became aware was some sort of initiation ritual amongst the employees. Not only was a workers' compensation claim filed, but a liability suit against the Defendant and the "prodder" was filed in Spalding County Superior Court. Chris defended both claims because of our experience and ability to reach outside of the workers' compensation arena to provide an effective defense in the liability claim as well. There was no dispute that the Claimant was shocked by the cattle prod. The evidence was conflicting, however, regarding whether the Claimant participated in or even knew about this "initiation." Further, a dispute arose regarding any actual "injury" and the extent of same. We were able to bring both claims to an amicable resolution with a settlement that contemplated a no-liability stipulation on the workers' compensation claim and dismissal of all parties with prejudice of the liability suit.

Mr. Ethridge obtained a favorable settlement for an engineering firm in a suit arising out of certain renovation work done to a school in Hilton Head, South Carolina, in which the Plaintiff was seeking several hundred thousand dollars in damage.

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 percent 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.  

Plaintiff brought suit against a land owner after a horse escaped from her pasture and damaged plaintiff's vehicle.  Kate Hughes was able to prove at trial that the property owner was not negligent and obtained a defense verdict for the property owner.

John Rogers successfully represented a client in the Juvenile Court of Fulton County on charges of truancy. The Court dismissed the petition filed against John's client. John frequently takes pro bono cases assigned by the Truancy Intervention Project.

John Rogers recently defended an attorney against whom the State Board had filed a Notice of Investigation. John obtained dismissal without any disciplinary action taken against the attorney and without a formal complaint being filed.

Partner R. Michael Ethridge 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 client'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. 

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.

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.

David Root obtained a defense verdict for their client, a Georgia based motel, in a 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. 

On January 28, 2009 Dave Root 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 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.  

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 percent at fault for the accident and the Defendant 30 percent. 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.

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.

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.

Renee Y. Little, achieved a defense verdict in a federal court jury trial of a coverage claim involving a commercial general liability and excess policy worth $4 million. Critical issues were whether coverage was void based on alleged misrepresentations made in the applications by the defendants, and whether the insurer waived reliance on those misrepresentations by continuing to insure the defendants and by failing to return premium payments. The case was significant because the defendant driver was involved in a collision that resulted in the death of a 41 year old wife and mother of two, and a finding of coverage meant that the policies were applicable to the fatal loss.

In a new decision, the Court of Appeals held that a plaintiff cannot support a battery claim by merely asserting she was never advised of the risks of a procedure and practical alternatives. Instead, this type of claim "sounds in professional negligence" and an expert affidavit is required to support the claim. See Paden v. Rudd, et al., --- S.E.2d ----, 2008 WL 4900726 (Ga.App.). Contact Kate Hughes for more information.

On November 24, 2008, Fred Valz and Jessica Cabral successfully obtained a reversal of the trial court's denial of partial summary judgment in a wrongful death case where the priority of three UM insurance policies were at issue. On motion for summary judgment, the Carlock Copeland attorneys argued that their client's auto policy should come last in priority under the "more closely identified with" test because it was originally issued to the decedent's sister, whereas the other auto policy and umbrella policy were issued to the decedent's father. The trial court denied summary judgment, in part, finding that the umbrella policy was last in priority because auto policies by definition apply before umbrella policies. The Court of Appeals reversed holding that umbrella policies should be stacked like other policies to provide UM coverage and, therefore, the Carlock Copeland client's auto policy came last in priority under the "more closely identified with" test.

Joe Kingma's real estate lawyer client was sued in the Middle District of Georgia. The Court granted our motion to dismiss the plaintiff's fraud, RICO, and civil rights claims.

Dave Root won a defense verdict on November 6, 2008 for his client, a personal trainer, who alleged to have caused injury to a client. 

Dan McGrew and Tonya Stokes were granted summary judgment for their mechanical contractor client in a case alleging product liability and negligence for modifications the contractor made to a large production machine in a manufacturing facility. The plaintiffs were a manufacturing employee working on theproduction machine, and his wife. The plaintiffs claimed that the contractor negligently designed and modified the production machine which allegedly resulted in the plaintiff’s arm becoming lodged in the machine causing mutilation and permanent disability. Dan and Tonya argued that the machine modifications were not defective, and that because the modifications were made, accepted, and put into production by the facility owner prior to the plaintiff’s injury, no liability or negligence could be found against the contractor. In addition, Dan and Tonya showed that the plaintiffs failed to bring forth adequate expert testimony in support of their claims and that the plaintiff's failure to exercise ordinary care for his own safety was the primary cause of his injuries. The trial court agreed and granted summary judgment for the mechanical contractor. The plaintiffs did not appeal the trial court’s decision.

Plaintiff sued Pete Werdesheim and Joe Kingma's client for abusive litigation arising from a judgment it had obtained against him. After oral argument, Judge Robert W. Mock of the State Court of Gwinnett County granted our client's Motion to Dismiss. The order was entered August 26, 2008, less than 60 days after we filed an answer. This marked the second time in less than six months that Carlock Copeland's Commercial Litigation practice group was able to save this particular client money by obtaining a swift dismissal of a frivolous lawsuit.

Marquetta Bryan defeated a charge of employment discrimination on the behalf of a Georgia Community Service Board.  The complainant made a Charge of "Reverse" Discrimination with the EEOC, alleging that she was subjected to different terms and conditions of her employment compared to her African American co-worker in violation of Title VII of the Civil Rights Act. She resigned her employment and alleged that she was constructively discharged due to the hostile work environment created by the discrimination. Marquetta filed a response to the claimant's charge on the behalf of the Board.  On September 24, 2008, the EEOC issued its determination finding no violation of Title VII and dismissing claimant's charge.  

On September 20, 2008, Dave Root was granted summary judgment in a wrongful death case brought against a national retail department store.  

Pete Werdesheim and Joe Kingma's client—an accountant in northwest Georgia—faced serious accusations in a lawsuit in Whitfield County, including misappropriation of trade secrets and conspiracy to breach fiduciary duties. Within 30 days of entering an appearance, Pete and Joe obtained a dismissal and the trial court also awarded our client attorney's fees. On September 12, 2008, the Georgia Court of Appeals issued an opinion that upheld the dismissal and fee award.

Michele Jones and Joe Kingma got a defense verdict for a lawyer in the Fulton County State Court on Friday, July 25, 2008. Plaintiff claimed that he had hired the lawyer to assist him with guardianship issues and that the lawyer had also been instructed by the deceased to draft a will leaving him real estate. Plaintiff's claims were bolstered by several independent witnesses who claimed that the lawyer had been engaged to represent Plaintiff and that the deceased had instructed the lawyer to so draft the will. Plaintiff claimed to have provided almost daily attendant care for the deceased. Michele and Joe were successful in discrediting the Plaintiff's testimony as well as that of his "independent" witnesses. The jury believed the lawyer who testified that he did not represent the Plaintiff and that the deceased had never told him to draft a will to leave the Plaintiff anything.

On July 24, 2008, Partners Wade K. Copeland and Ashley E. Sexton obtained a defense verdict in a medical malpractice - wrongful death action in the United States District Court in Atlanta. The jury deliberated only thirty minutes before returning a verdict in favor of a bariatric surgeon who was alleged to have failed to properly treat post surgical complications in the 645 pound patient. Two bariatric surgeons and one infectious disease specialist supported the defendant surgeon's care and treatment of the patient. The Plaintiff's only expert at trial was a surgeon from Yale. Two other plaintiff experts were excluded due to challenges based on Georgia's Tort Reform Act. Prior to trial, an offer of judgment had been made pursuant to Rule 68 of the Federal Rules of Civil Procedure. Recovery of costs are being pursued against the plaintiff.

Doug MacKelcan obtained a defense verdict for a client in Beaufort County, South Carolina in a motor vehicle accident case after a two day trial. In the case, the Defendant driver "rear-ended" the Plaintiff while Plaintiff was stopped at a stop sign. The severity of the collision was in dispute as were the existence and cause of Plaintiff's back injuries. Plaintiff claimed in excess of $60,000 in past and future medical expense and damages. Defense counsel successfully argued that Plaintiff's injuries existed at the time of the accident and her treatment was not caused by the accident. The jury returned the defense verdict after a short deliberation.

On June 30, 2008, Ashley Sexton and Lee Atkinson prevailed on a motion to dismiss in Cherokee County in a case of alleged medical battery involving a plastic surgery procedure that the Plaintiff claimed was unauthorized.  The defense argued that the case was actually a medical malpractice case as it involved professional judgment and discretion by the plastic surgeon. Therefore, the plaintiff's failure to file an expert affidavit supporting her contentions was fatal to the case and the case was dismissed under OCGA sec. 9-11-9.1.  

The plaintiff alleged that our law firm client committed malpractice and violated RESPA by making an unauthorized cash allowance to the borrower in a real-estate transaction. The plaintiff's allegations were bolstered by expert testimony from a prominent Atlanta lawyer who sits on the State Bar's Board of Governors. Pete Werdesheim and Joe Kingma successfully argued to the trial judge (Judge Michael Hancock of DeKalb Superior Court) that their client owed no duty to the plaintiff. The Georgia Court of Appeals affirmed summary judgment for Pete and Joe's client in an opinion dated June 24, 2008.

D. Gary Lovell, Jr. and Lee C. Weatherly were granted summary judgment for three defendant cardiologists, and their practice group, who were sued in York County, South Carolina for allegedly failing to meet the standard of care in their treatment of a post-surgical patient, leading to his wrongful death. Gary and Lee argued that the Plaintiff had failed to bring forth adequate expert testimony to sustain a medical malpractice case in South Carolina and that there was no issue of material fact on any of the Plaintiff's allegations. Summary judgment was granted in the Court of Common Pleas of York County on June 20, 2008. 

Dave Root won summary judgment for their insurance company client in the Georgia Court of Appeals in a bad faith action seeking over $3 million in damages. 293 Ga.App. 142 (2008).

The plaintiff baking company sued its insurer following a fire at its Dallas, Texas plant. The suit sought damages for bad faith, attorneys' fees and business income and extra expense. The Court agreed with Dave and Ann's arguments that plaintiff was not entitled to business income and extra expense coverage because it had not purchased that coverage for its Dallas plant. Further, plaintiff had no claim for bad faith because it failed to submit a proper demand prior to filing suit. Specifically, Plaintiff had not submitted a sworn proof of loss prior to making its bad faith demand.

The plaintiff had also claimed that the insurer had wrongfully failed to defend it in an entirely separate lawsuit which sought damages arising from defective bread plaintiff had manufactured. The Court agreed that the insurer had appropriately refused to defend plaintiff under the terms of its GL policy, relying on an exclusion for property damage to impaired property.  

A church that purchased an existing sanctuary sued a host of defendants after discovering that they got less than they thought they should. Pete Werdesheim and Joe Kingma's clients—well-respected Atlanta real-estate lawyers—were caught in the crossfire. But Pete and Joe filed a motion to dismiss, which was granted on June 16, 2008 by Judge Patsy Y. Porter of Fulton County State Court.

Joe Kingma won a defense verdict for a Georgia bank sued for fraudulent lending and wrongful foreclosure on June 12, 2008.  The plaintiff proved: he had diabetes; he had his eyes operated on a less than a month prior to the loan closing; he was driven to the loan closing by someone else; and that the bank loan committee had approved the larger loan he said he should have gotten.  The bank had foreclosed on a family farm that had been in the plaintiff's family for several generations.  Joe was successful in convincing the jury that the bank officers, and not the foreclosed borrower, were truthful.

The United States Court of Appeals for the Eleventh Circuit affirmed the summary judgment that Adam Appel obtained for a physician in a case in which the Plaintiff alleged that the physician acted with deliberate indifference in violation of the Eighth Amendment. The Plaintiff alleged that violation of the Eighth Amendment's proscription against deliberate indifference on the part of several physicians and other medical professionals caused the death of his brother, a prisoner, who died from a sudden stroke. On summary judgment, Carlock Copeland attorneys argued that the Plaintiff failed to demonstrate that the physician acted with deliberate indifference to the decedent's serious medical needs, and also that the physician was entitled to qualified immunity. The Court of Appeals sided with the Carlock Copeland attorneys and affirmed the district court's grant of summary judgment for their physician client.

Phillip Weathers v. James Lanier, et al., 05-00011-CV-RLV-4.

The United States Court of Appeals for the Eleventh Circuit affirmed the summary judgment obtained for a physician in a case in which the Plaintiff alleged that the physician acted with deliberate indifference in violation of the Eighth Amendment. The Plaintiff alleged that violation of the Eighth Amendment's proscription against deliberate indifference on the part of several physicians and other medical professionals caused the death of his brother, a prisoner, who died from a sudden stroke. On summary judgment, Carlock Copeland attorneys argued that the Plaintiff failed to demonstrate that the physician acted with deliberate indifference to the decedent's serious medical needs, and also that the physician was entitled to qualified immunity.  The Plaintiff appealed the judgment of the District Court, and Carlock Copeland attorneys filed a brief seeking that the court of Appeals affirm the District Court's ruling in their client's favor.  The Court of Appeals sided with the Carlock Copeland attorneys and affirmed the district court's grant of summary judgment for their physician client.

Healthcare Practice Group partners Tom Carlock and Eric Frisch successfully defended a pulmonologist in Augusta in a case involving a woman who was profoundly brain damaged and is currently in a persistent vegetative state. Plaintiffs alleged that the pulmonologist failed to diagnose and treat a tension pneumothorax for three hours, leading to a cardiac arrest. The defense proved that the doctor complied with the standard of care and that if a tension pneumothorax occurred at all, it was right before or during the arrest and was promptly treated.

The plaintiff sued an insurance company and two local lawyers in federal court for allegedly violating the Fair Credit Reporting Act. He sought $2.5 million in damages arising from lost business opportunities. Pete Werdesheim and Joe Kingma filed a motion to dismiss, which was granted on April 23, 2008 by Judge William S. Duffey. U.S. District Court, N.D. Ga., 1:08-CV-00004.

The grievance alleged that the lawyer violated the Georgia Rules of Professional Conduct by duping his client into conveying two pieces of property to him for less than one-third of their fair market value. It was further alleged that the lawyer had a longstanding sexual relationship with the client. The State Bar's Office of General Counsel referred the grievance to the Investigative Panel of the State Disciplinary Board. Pete Werdesheim and Joe Kingma briefed and orally argued the issues to a member of the Panel. The grievance was dismissed on April 21, 2008, without any disciplinary action against the lawyer.

Partners Tom Carlock and Eric Frisch obtained a defense verdict in a medical malpractice case in Floyd County. Plaintiffs alleged that an internist and emergency medicine physician failed to diagnose and treat a hypertensive emergency and congestive heart failure. The defense proved that the Plaintiff suffered from a rare complication of a rare connective tissue disorder.

Michele Jones and Joe Kingma got summary judgment for three defendants sued in Clayton County for allegedly interfering with a psychologist's business. The psychologist alleged that the defendant's wrongful actions had led to his discipline by the Georgia Psychological Association and the State Board of Examiners of Psychologists. Michelle and Joe argued that the defendants were protected by a statutory immunity and that the plaintiff could not show any damages proximately caused by the defendant's alleged actions. Summary judgment was granted in the Superior Court of Clayton County on April 17, 2008.

Partner David Overstreet and Associate Mandi Dudgeon recently prevailed on a Motion to Dismiss in state court on behalf of a local real estate attorney. The Third-Party Complaint alleged that the attorney failed to fulfill his duties as closing attorney, because he failed to gather the necessary paperwork that would have allowed the closing to go forward before the foreclosure sale. After allowing initial discovery, the Court of Common Pleas granted the attorney's 12(b)(6) Motion to Dismiss with prejudice.

In late March, Doug Smith received a defense verdict from a Houston County jury while representing a day care center in Warner Robins, GA. The suit was brought by the mother of a seven year old girl who was attacked by another child in the center; the child suffered severe and permanent facial injuries and alleged emotional trauma. The defense contended successfully that the center had fulfilled its duty of "watchful oversight" of the children and that the assault was unavoidable due to its sudden nature.

During a recent trial held in the State Court of Fulton County before Judge Fred C. Eady, the Plaintiffs alleged that the Defendant vascular surgeon breached the standard of care by failing to provide sufficient length of graft material when he performed an axillobifemoral bypass procedure causing the Plaintiff to suffer a disruption requiring surgical repair. The Plaintiffs also alleged that the disruption caused permanent nerve damage, loss of full use of the right arm, tremendous bleeding, shock and a subsequent heart attack. The Plaintiffs asked for monetary damages, including medical expenses, past, present and future pain and suffering, and loss of consortium. The jury deliberated for 4 1/2 hours before returning a defense verdict.

D. Gary Lovell, Jr. and Renee Y. Little tried the case on behalf of the Defendant vascular surgeon and surgery group.

Partner David Overstreet and Associate Andy Countryman recently obtained the dismissal of an attorney from a legal malpractice case in Federal Court. In the Complaint, Plaintiff alleged the attorney had mistaken her for another person when he filed a civil suit against her the year before. Plaintiff further contended that the attorney refused to agree to dismiss the case until months later when he realized the Plaintiff should never have been sued in the first place. A motion to dismiss was filed on the basis that the attorney never represented the Plaintiff and therefore owed her no duty under the law. The Court granted the Rule 12(b)(6) Motion to Dismiss with prejudice.

Dan McGrew and Chris Wall recently secured a favorable result for their client, a trauma surgeon, in a case involving allegations of an improperly removed cervical collar resulting in quadriplegia. The case proceeded to trial in Fulton County, Georgia in January 2008. Dan and Chris vigorously defended their client's position that he provided appropriate care and supervision to the patient. The steadfast defense provided by them ultimately enabled Dan and Chris to obtain a dismissal of their client prior to verdict. The other defendants in the case negotiated a favorable settlement on behalf of their clients, bringing the entire matter to a conclusion.

Chris Wall and Kim Ruder recently obtained summary judgment in a trucking and transportation case. The Plaintiff in the case sued a dump truck company, alleging that one of its trucks caused a rock to fly up into the Plaintiff's car, knocking him in the head and causing him to lose consciousness. As a result, Plaintiff crashed into a utility pole and smashed his face on his steering wheel, sustaining a permanent loss of vision in one eye. Plaintiff argued that the defendant truck company failed to maintain and equip its trucks to prevent rocks from being ejected or kicked up from the road. Chris and Kim argued that there was no evidence to support that their client even had a truck on the particular road at the time of the incident, let alone evidence of any negligent act by the trucking company. The trial court agreed and granted summary judgment.

Gary Lovell and Renee Little represented a commercial rail company and its driver (who failed to appear at trial) in the Southern District of Georgia, in a truck wreck case where the husband and wife Plaintiffs alleged that the Defendant driver was negligent in causing a catastrophic collision causing permanent, disfiguring and debilitating physical injuries to both. Plaintiffs also alleged that the commercial employer was negligent in hiring, retaining and supervising its driver. Plaintiffs sought punitive damages against both Defendants. Plaintiffs had medical specials of approximately $1.3 million. There were no pre-existing conditions before the accident other than hypertension and prior cervical fracture for the husband Plaintiff. Plaintiffs brought four doctors, an economist, life-care planner, commercial industry expert, and reconstructionist to testify. Defendants' experts included a vocational rehabilitation expert and accident reconstructionist. In closing, Plaintiffs asked the jury to award in excess of $10 million. Plaintiffs' last settlement demand was $7.5 million. Defendants' last offer was $5.5 million. The Jury returned a verdict in favor of Plaintiffs for $4.5 million with no award for punitive damages.

Wade Copeland and Lee Atkinson recently obtained a dismissal for their client in a case that originally involved allegations of nursing home negligence. Plaintiff originally filed an action for medical malpractice but failed to include the expert affidavit required by OCGA 9-11-9.1. After filing a voluntary dismissal of the first suit, Plaintiff refiled the action making only allegations of simple negligence. Wade and Lee successfully argued that the plaintiff was attempting to elevate form over substance by renaming the suit as one for ordinary negligence versus malpractice. The Court agreed that the Plaintiff could not avoid the requirements of the expert affidavit statute and granted the dismissal.

Tom Carlock and Eric Frisch, along with Athens attorney Drew Marshall, recently won a defense verdict for a hospital in Athens, Georgia in a five week liability trial involving allegations of obstetrical malpractice. Plaintiffs alleged that a community obstetrician and the nursing staff at the hospital failed to deliver the baby fast enough in light of what they contended were non-reassuring fetal heart rate patterns. The defense presented strong expert and fact witness testimony that the labor had proceeded normally and that there were no warning signs of decreased oxygen to the baby. The defense also presented strong expert testimony that the baby's alleged injuries may have occurred before labor started and at least some of the claimed injuries may have been genetic.

Doug Smith and Kate Hughes won a defense verdict in a wrongful death case filed in the Fulton County State Court. The plaintiff alleged that his wife died as a result of a negligently performed sigmoid colectomy (bowel operation) necessitated by a condition known as diverticulitis. Specifically, plaintiff's experts contended that the surgeon violated the standard of care by not performing an air insufflation test after surgery which would have shown a leak in the colon. The defense presented a strong expert testimony showing that the air test would not have shown any problems anyway. The jury agreed and returned a verdict in favor of the surgeon.

Gary Lovell obtained a defense verdict in a one-week medical malpractice trial in Gwinnett County Superior Court. Plaintiff's allegations were that the Defendant OB/GYN physician performed an unnecessary hysterectomy on a then 21 year-old female. Plaintiff further alleged that the plaintiff did not consent to this procedure. The jury disagreed and found that the defendant doctor met the standard of care in his treatment of this patient and that the patient's consent for surgery was properly obtained.

Dan McGrew and Spencer Bomar's motion to dismiss a medical malpractice action was granted due to Plaintiff's failure to comply with 2007 version of O.C.G.A. §9-11-9.1. The decision was upheld on appeal and cited as: Peck v. Bishop, 294 Ga.App. 132, 668 S.E.2d 558 (2009).

Joe Kingma, John Rogers, and Lenna Kirchner authored an amicus brief joined by the South Carolina Association of Certified Public Accountants. John, Joe, and Lenna asked the South Carolina Supreme Court to affirm a precedent in the Court of Appeals that is favorable to accountants, attorneys, and other professionals. The South Carolina Supreme Court affirmed. The case is Wogan v. Kunze, 379 S.C. 581, 666 S.E.2d 901 (2008).

Partner D. Gary Lovell, Jr. and Associate Lee Weatherly obtained a defense verdict for a cardiologist group, in a medical malpractice wrongful death case filed in York County, South Carolina. In the week-long trial, the deceased's estate claimed that the Defendant's employee doctor failed to properly treat the deceased for her heart attack when he was summoned by the emergency room doctor. However, the jury determined that the employee doctor met the standard of care and returned a verdict in favor of the cardiologist group after deliberating for only an hour and half.

Gary Lovell won a defense verdict in a recent medical malpractice trial for a Georgia Neurologist. The Plaintiff contended that the Defendant neurologist did not adequately evaluate and protect her from falling and developing intracranial bleeding as a result of a treatment with the anti-coagulant medication heparin for a condition of venous sinus thrombosis. Plaintiffs further contended that the doctor did not adequately evaluate the patient after the fall and failed to order an emergent CT scan to evaluate her for intracranial bleeding. The physician denied all allegations of negligence and further contended that the intracranial bleeding was caused by the underlying presenting medical condition of venous sinus thrombosis, and not as a result of the fall from the hospital bed. The jury deliberated 2 hours before returning a defense verdict for our client.

Adamson v. U.S. Attorney Gen
Adamson v. U.S. Attorney Gen., 270 Fed.Appx. 793, 2008 WL 731488 (11th Cir. 2008). 

Ward v. American Family Life Assurance Co. of Columbus
Ward v. American Family Life Assurance Co. of Columbus, 444 F.Supp.2d 540 (D.S.C. 2006).  

Wilson v. Style Crest Products, Inc.,
Wilson v. Style Crest Products, Inc., 367 S.C. 653, 627 S.E.2d 733 (2006). 

Gayle v. Flexible Benefit Plan/United Parcel Service Long Term Disability Plan
Gayle v. Flexible Benefit Plan/United Parcel Service Long Term Disability Plan, 318 F.Supp.2d 328 (D.S.C. 2004). 

Page v. HSI Financial Services, Inc.
Page v. HSI Financial Services, Inc., 218 Ga.App. 283, 461 S.E.2d 239 (Ga. Ct. App. 1995). 

Sorrells Construction Co., Inc. v. Chandler Armentrout & Roebuck,
Sorrells Construction Co., Inc. v. Chandler Armentrout & Roebuck, P.C., 214 Ga.App. 193, 447 S.E.2d 101 (Ga. Ct. App. 1994).

Fisher v. Muzik
Fisher v. Muzik, 210 Ga.App. 861, 412 S.E.2d 548 (Ga. Ct. App. 1991). 

Abacus, Inc. v. Hebron Baptist Church, Inc.
Abacus, Inc. v. Hebron Baptist Church, Inc., 201 Ga.App. 376, 411 S.E.2d 113 (Ga. Ct. App. 1991).  

Southern Engineering Co. v. Central Georgia Electric Membership Corp.,
Southern Engineering Co. v. Central Georgia Electric Membership Corp., 197 Ga.App. 402, 398 S.E.2d 866 (Ga. Ct. App. 1990).

Lagoueyte v. Rocket Express
Lagoueyte v. Rocket Express, 196 Ga.App. 143, 395 S.E.2d 389 (Ga. Ct. App. 1990). 

Southern Engineering Co. v. Central Georgia Electric Membership Corp.,
Southern Engineering Co. v. Central Georgia Electric Membership Corp., 193 Ga.App. 878, 389 S.E.2d 380 (Ga. Ct. App. 1989).

Partners Gary Lovell and David Overstreet obtained a defense verdict for a local nephrologist and his practice following a two week wrongful death trial in Orangeburg, SC. In the trial, the estate of the patient contended that the nephrologist failed to recognize the severity of the Plaintiff's condition and failed to transfer her to the ICU in a timely manner. The estate contended that this earlier transfer could have prevented her death. The jury disagreed and rendered a defense verdict on behalf of the nephrologist and his practice. The jury did award a verdict of $500,000 against the co-defendant hospital.

Fred Valz represented a commercial property owner in an elevator malfunction case. The plaintiff, who was a paraplegic, claimed that he rolled his wheelchair into an elevator and that when he reached his desired floor, he backed out of the elevator. According to the plaintiff, he did not realize the elevator floor had stopped above the landing and, when he backed out of the elevator, his wheelchair fell out of the elevator. As a result, the plaintiff claimed he sustained sever personal injuries. Fred argued that the property owner was not liable because the elevator had been inspected the day prior to the incident and again on the morning of the incident during routine inspections. The inspections revealed no problems with the elevator. The trial court granted summary judgment to the property owner and the Court of Appeals affirmed finding that the property owner did not have superior knowledge of any problems with the elevator.

Pete Werdesheim and Joe Kingma obtained summary judgment for a lawyer who had been sued by a bank. The lawyer had defended the bank in litigation which resulted in a $600,000 adverse verdict. The bank sued the lawyer alleging malpractice in the handling of the case. The lawyer's motion for summary judgment was granted on December 12, 2007, by Judge Pamela South in the State Court of Gwinnett County. Judge South held that the bank failed to show their alleged damages were proximately caused by anything the lawyer did and that the lawyer's actions were protected by the doctrine of judgmental immunity. The court also awarded the defendant attorney the fees he has not yet been paid from the underlying representation.

In a premises liability action, the Court of Appeals recently affirmed a grant of summary judgment to Dan McGrew, Chris Wall and Tonya Stokes' amusement park client. The case arose out of a slip and fall incident that occurred on a rainy day on steps leading to a water ride at the amusement park. The plaintiff, a patron of the park, was descending the steps when she slipped and sustained a serious injury to her wrist. She alleged that the design of the steps was unsafe and that the park should have warned patrons that the steps could become slippery when wet. The trial court found that the plaintiff had equal or superior knowledge of the condition of the steps and granted summary judgment to the park. The Court of Appeals Affirmed.

Spencer Bomar obtained a favorable arbitration decision for his client, a fire suppression sprinkler system contractor, in a matter involving water property damage.  No liability was found.

On October 9, 2007 the Georgia Court of Appeals affirmed the defense verdict John Rogers and Joe Kingma had won before a Superior Court jury. The case, Barnes v. Turner, received massive nationwide publicity two years earlier when the Georgia Supreme Court reversed the grant of a motion to dismiss and sidestepped what the trial court and Court of Appeals had thought was a fairly easy application of the statute of limitations. See the full reported decision at 278 Ga. 788, 606 S.E.2d 849 (2004).

The jury found that Barnes failed to prove that Turner proximately caused any damages and granted a verdict for the defendant. The Court of Appeals affirmed and ended the saga with a defense victory.

Mr. Ethridge obtained a favorable settlement for an architectural firm in a claim brought by a general contractor for over $1,000,000 in alleged cost overruns arising out of the construction of the city's newly constructed municipal center. 

Adam Appel secured a defense verdict in an Eighth Amendment deliberate indifference case, Byron Rhodan v. Georgia Department of Corrections and Officers Collins and Ward, in the United States District Court for the Northern District of Georgia, Atlanta Division. Adam represented a corrections officer who was accused, along with another officer, of violating, the plaintiff's Eighth Amendment rights. The plaintiff, an achondroplastic dwarf, claimed that while he was incarcerated at the Georgia Diagnostic and Classification Prison in April 2004, the officers ordered him to stand on the sink in his cell to shave and that he was obeying the officers' order, he fell from the sink and sustained serious injuries. The plaintiff argued that the officers were deliberately indifferent to a substantial risk of serious harm to him by issuing him the order, and, therefore, the officers violated his rights under the Eighth Amendment. Adam argued, first, that their client did not violate the Plaintiff's Eighth Amendment Right and argued that the plaintiff feigned the fall as part of a scheme that he and some of his fellow inmates concocted to scam money from the State. The trial lasted six days, but after only 90 minutes of deliberation, the jury returned a verdict in favor of the defendants.

On August 17, 2007 Dave Root and his team received an affirmance of their motion for summary judgment from the 11th Circuit Court of Appeals where two plaintiffs sought insurance coverage for judgments totaling nearly two million dollars. The appeals court held that a policy of insurance issued by the defendant provided no coverage for the judgments.

2007 WL 2344868 (11th Circuit Court of Appeals 2007). Dave Root represented an insurer in a case where plaintiff sought to enforce default judgments of approximately $2,000,000. The 11th Circuit affirmed summary judgment for the defendant insurer.

John Rogers and Joe Kingma advised a Florida-based developer on issues arising from a contract to sell an apartment complex to a publicly traded REIT. The REIT used supposedly low occupancy numbers as a pretext to back out of the deal. Our client appeared to be on a collision course with expensive litigation. But we successfully helped them demand performance of the contract and the deal closed on schedule in August 2007.

Dave Root represented the defendant Georgia Department of Human Resources / DFACS. Plaintiff sued the defendant for the wrongful death of a child in foster care. The jury found for the defendant on July 18, 2007. 

Adam Appel represented the defendant Georgia Department of Human Resources / Department of Family & Children Services. Plaintiff, the biological parents of a child in foster care, sued the defendant for the wrongful death of their 4 year old child, who drowned during a visit to the Tallulah Gorge State Park. The jury found for the defendant on July 18, 2007.

On July 5, 2007, Dave Root obtained summary judgment in federal court in favor of a large medical practice. The case had been brought by three former employees who alleged race discrimination.

Dave Root received summary judgment in favor of a managed care organization and its chief executive officer in a sexual harassment case in the U.S. District Court for the Northern District of Georgia.

2007 WL 2001769. Dave Root represented the defendant in discrimination case brought by three former employees. The federal district court granted summary judgment.

Mr. Ethridge defended an engineering firm at a trial of a case involving allegations of surveying malpractice.  

Shannon Sprinkle and Joe Kingma obtained dismissal of an accounting malpractice suit in the Superior Court of Bartow County on May 10, 2007. They represented an Alabama accounting firm that had performed attest services for a business that failed. The business and some of its principals claimed the accountants were responsible. After Shannon and Joe filed the motion to dismiss, the principals declared bankruptcy. After the dust settled and the bankruptcy concluded, the court dismissed claims against the accountants.

The plaintiff alleged that our Atlanta law firm client committed malpractice and violated RESPA by making an unauthorized cash distribution to the borrower in a real estate transaction. The plaintiff's allegations were bolstered by expert testimony from a prominent Atlanta lawyer who sits on the State Bar's Board of Governors. Pete Werdesheim and Joe Kingma argued that their client owed no duty to the plaintiff and the trial court agreed, granting summary judgment on May 10, 2007.

285 Ga. App. 415 (2007) Dave Root represented an industrial company which was sued when a contractor fell and became a paraplegic. Summary judgment was affirmed by the Georgia Court of Appeals.

Spencer Bomar obtained a favorable arbitration decision for his client, a power company contractor, in a matter involving a sink hole and property damage at a construction site.  No liability was found.

Dan McGrew and Chris Wall obtained a defense verdict in a medical malpractice action following a week-long trial in Fayette County State Court. Plaintiffs alleged that the defendant doctor's care of the patient's diabetic foot wound caused a loss of ability to ambulate and, eventually, amputation of the limb. Dan and Chris, representing the surgeon who treated the wound, established that the doctor met the standard of care and that the patient's long history of aggressive diabetes caused her foot wound and subsequent complications.

Bill Jones represented an ethanol company in a lawsuit against former employees who set up a company to compete directly against Bill's client. After a three day preliminary injunction hearing in federal court, Bill obtained a preliminary injunction for his client. Shortly thereafter, Bill was able to obtain a permanent injunction on behalf of his clients.

Dan McGrew and Chris Wall secured a defense verdict in a medical malpractice/wrongful death case after a week-long trial in Cobb County State Court. Plaintiffs argued that the patient died as the result of blood loss following an 8 hour surgery to reverse a colostomy. Dan and Chris, representing the surgeon, showed that blood loss played no role in the patient's demise and that the surgeon met the standard of care in the case.

Dave Root represented a preferred provider organization and its CEO in a case brought by a terminated employee alleging gender discrimination. The federal district court granted summary judgment for the defendants. (March 2007).

Joe Kingma represented a lawyer who was sued for alleged conspiracy. Judge Richard W. Story granted the motion to dismiss. Michael J. Murray, v. Thurbert Baker, et al., No. 1:06-CV-2516-RWS (N.D. Ga. Jan. 4, 2007).

Joe Kingma represented a lawyer accused of falsifying evidence and suborning perjury. Judge John Langford in Fulton Superior Court granted Joe's motion to dismiss. CS Chong LLC v. Stephen Mackie, et al., No. 06-CV-124671 (Feb. 13, 2007).

Shannon Sprinkle and Joe Kingma defended a national law firm against malpractice claims filed by a client dissatisfied with their result at trial. Finding that the plaintiff's claims were unwarranted, the trial court granted summary judgment to the firm and to the individual partners named in the lawsuit. The Court of Appeals of Georgia affirmed.

Dave Root represented a multi-campus institution of higher learning in an arbitration brought by a fired campus director alleging breach of contract. The arbitrator entered an award for the defendant. (October 2006).

The Georgia Court of Appeals recently affirmed a "judgment on the pleadings" obtained by Dan McGrew and Chris Wall on behalf of their client in an alleged products liability case. In the case, the plaintiff, an employee of an asphalt company that was repaving a road in Douglas, Georgia, climbed up a raised dump truck bed to disentangle the bed from an overhead electrical wire. After grabbing the wire (allegedly with a shovel handle), the plaintiff received an electrical shock and fell over 30 feet to the ground, sustaining catastrophic injuries. Plaintiff sued manufacturers of various component parts of the dump truck, arguing that one or more of the components became entangled in the wire due to a manufacturing defect. Dan and Chris argued that under no set of provable facts as set forth in the Complaint would the plaintiff be entitled to recover against their client, the manufacturer of the awning that covered the dump truck bed, and the case should be dismissed as a result. The trial court agreed and the case was dismissed. After hearing oral argument on the matter in September 2006, the Court of Appeals affirmed the ruling and denied the Plaintiff's motion for reconsideration.

Dan McGrew and Kim Ruder achieved a victory for a local Buckhead restaurant in the Court of Appeals. The case arose out of the hit and run death of a pedestrian in front of the Buckhead establishment. The decedent's heir filed suit against this eatery as well as several other contiguous storefronts claiming that the row of establishments were responsible for the decedent's death. The Complaint was premised upon several theories of liability including premises liability and negligent assumption of the duty to maintain the safety of the street. The Court of Appeals affirmed summary judgment and found that the Buckhead establishment was not liable for the injuries claimed. The Plaintiff was seeking damages in excess of ten million dollars.

Payday lender Stewart Finance Company and two related entities failed and filed for bankruptcy. One hundred fifty-five purchasers of securities sued Stewart Finance's accountants and lawyers. Joe Kingma and Michele Jones defended the accountants against multi-million-dollar fraud and RICO claims and filed motions to dismiss. The trial court agreed that the plaintiffs had not pled fraud and RICO violations with particularity, as Georgia law requires. The Court of Appeals of Georgia affirmed the dismissals with prejudice. Hawks v. Miller & Martin, PLLC, Case A06A0604; Sweetapple v. Miller & Martin, PLLC, Case A06A0605; Sweetapple v. Smith, Case A06A0606, not officially reported (2006).

John Rogers and Joe Kingma represented New York accountants who audited the financial statements of a Savannah-based design/build water purification company. The company and its investors sought more than $10 million in damages. Joe and John limited the scope of the case by having the investors' claims and the punitive damages claims struck on summary judgment. TSG Water Resources, Inc. v. D'Alba & Donovan Certified Public Accountants, P.C., 366 F. Supp. 2d 1212 (S.D. Ga. 2004). The plaintiff still sought millions of dollars in damages when the case was tried in Savannah, GA. The jury awarded less than $300,000 and found there was no intentional wrongdoing by the accountants. The trial judge applied the engagement letter's provision prohibiting recovery of consequential damages and found the plaintiffs were entitled to nothing. The decision was affirmed by the Eleventh Circuit.

Fred Valz represented United National Insurance Company and the Court granted United National Insurance Company's motion for summary judgment. United National had issued an umbrella policy which was excess to a commercial general liability policy issued by Essex Insurance Company. The Court held that both the Essex CGL policy and the United National umbrella policy did not provide liability coverage in the case involving an alleged employee who was injured during the course of his employment.

Eric Frisch recovered $952,028.17 in liquidated damages and past due fees for Holiday Hospitality Franchising, Inc. based on the early termination of a Holiday Inn® brand hotel in Maryland. The franchisee breached the license agreement and failed to pay franchise and other fees less than six months into a ten year term. The franchisee denied liability and counterclaimed for fraud and violations of the FTC Franchise Rule and Maryland law. Judge Thomas Thrash in the Northern District of Georgia awarded HHFI summary judgment, upholding the liquidated damages provision and awarding attorney's fees and expenses of litigation. Holiday Hospitality Franchising, Inc. v. 174 West Corp., 2006 WL 2466819 (N.D.Ga., Aug. 22, 2006).

John Rogers and Joe Kingma represented a consortium of builders who had contracted to purchase the last 45 buildable lots in Fayetteville, Georgia. The developer-seller decided that the contract price was too low and refused to honor the agreement. Worse, in an attempt to avoid his contractual obligations, the developer conveyed the lots to a corporation he controlled. The developer hired lawyers from one of the nation’s largest law firms and fought tooth and nail. After extensive motion practice, a jury trial, and two appellate court opinions, our clients won the lots. By this time, the real estate had increased in value over $2 million, nearly double the original contract price. The Fayette County jury also awarded attorney’s fees and punitive damages, and the Georgia Court of Appeals affirmed. Stinchcomb v. Wright, 278 Ga. App. 136 (2006).

Shannon Sprinkle and Joe Kingma represented an Atlanta-based real estate investment company. The adjacent owner's building encroached upon our clients' property. After negotiations failed, we filed suit. Shortly thereafter, we reached an agreement with the adjacent owner to demolish the offending structure, and our client recouped damages and attorney's fees. Indigo Holdings, Inc. v. Greenclub Investment Corp., Fulton Superior Court, 2006-CV-114826.

Pete Werdesheim and Joe Kingma represented a real estate investor who purchased a home in foreclosure. The occupant fought the ensuing eviction action and sued our client and the mortgage lender for wrongful foreclosure, among other things. Austin v. Todd, Henry Superior Court, 06-CV-2476-M. We argued that our client was a bona-fide purchaser for value, and the court agreed and granted summary judgment.

John Rogers and Joe Kingma represented a closing lawyer who allegedly participated in a conspiracy to defraud homeowners. The allegations included RICO, breach of contract and violations of RESPA and TILA. After lengthy discovery, the Court granted summary judgment to our client. Jackson v. Equicredit Corp. of Georgia, M.D. Ga., 4:00-CV-184-2. 

Joe Kingma’s client—a north Georgia real estate investment company—acquired several parcels of land in Dawson County, GA. When a dispute arose with another developer regarding ownership of the property, our client submitted a claim on its owner’s title insurance policy. But the insurance company refused to defend any of the claims, and it hired an international law firm to file a declaratory judgment action against our client in federal court. American Pioneer Title Ins. Co. v. Mountainview Development Co., Inc., N.D. Ga., 2:03-CV-0133-WCO. After substantial discovery, our clients received $795,000 under an agreement reached at mediation.

John Rogers and Joe Kingma advised an international real estate company that sought to acquire a large tract of land to develop a subdivision. The seller threatened to back out of the deal. All it took was one threatening letter from us to ensure compliance with the contract. The deal closed on time and our clients avoided potentially costly litigation.

Pete Werdesheim and Joe Kingma advised an Atlanta-based mortgage lender faced with a repurchase demand from one of the nation's largest mortgage-servicing companies. The servicing company claimed that our client violated underwriting guidelines by extending credit based upon allegedly inflated appraisals and improper inducements from sellers in various transactions. Accordingly, it demanded the repurchase of several loans. Negotiations ensued, the end result of which was the rescission of the repurchase demand.

Dave Root represented a medical organization and its CEO in a case alleging fraud and negligent misrepresentation in failure to hire. The federal district court granted summary judgment for the defendants. (August 2006)

Dave Root represented a builder in an arbitration claim by a homeowner against the builder for over $1,000,000 in construction defects. Arbitrator found for the builder on defects claim, and awarded $135,000 in unpaid expenses to the builder. (August 2006).

280 Ga. App. 267 (2006). Dave Root represented a general contactor who built a large feed mill. Plaintiff was a worker at the mill who lost a leg in a conveyor belt accident, claiming deficient construction. Summary judgment was affirmed by the Georgia Court of Appeals. 

Mr. Ethridge defended an architect at trial in a suit brought by a homeowner alleging several hundred thousand dollars in mold and mildew related damage.

Bill Jones represented a manufacturer of healthcare products in a products liability action brought by the Plaintiff's estate in federal court in Puerto Rico where they sought in excess of $1,000,000 in damages. Bill filed a motion to dismiss for failure to state a claim and insufficient process. As a result of the motion, Plaintiff quickly dismissed the lawsuit against Bill's client.

Fred Valz obtained summary judgment on behalf of Progressive Casualty Insurance Company. Empire Fire and Marine made a voluntary payment under their motor vehicle policy and contended that Progressive had improperly denied coverage and was jointly liable. The Court granted Progressive's motion for summary judgment and held that Progressive had no coverage in the case.

Fred Valz was successful in a motion for summary judgment on a declaratory judgment action. That case involved a sexual assault claim and the Court granted the insurer's motion for summary judgment, holding that claims for the alleged sexual assault were not covered under either a homeowner's or umbrella policy.

Partner Adam Appel successfully defended the Director of Financial Aid at a state university in a Whistleblower / False Claims Act and First Amendment retaliation case. In the case entitled Battle v. Board of Regents for the State of Georgia, et al., 468 F.3d 755 (11th Cir. 2006), the 11th Circuit Court of Appeals affirmed summary judgment to the defendants. The Plaintiff, a former financial aid officer, alleged that her employment was terminated in retaliation for her reporting fraud in the university's financial aid office. The Plaintiff also claimed that the she reported this fraud to the US Department of Education in a whistleblower action. She sought to recover her share of more than two million dollars of financial aid that she claimed was fraudulently procured.

The United States District Court for the Northern District of Georgia granted summary judgment in favor of Mr. Appel's client and the 11th Circuit affirmed. Mr. Appel successfully argued to the 11th Circuit that the recently-decided U.S. Supreme Court case of Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), barred the Plaintiff's First Amendment retaliation claim. In Garcetti, the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Mr. Appel successfully argued to the 11th Circuit that Garcetti barred the Plaintiff's claim because the Plaintiff's duties as a university employee required her to report any suspected fraud to her supervisors, and consequently, when she reported alleged fraud at the university to university officials, she did so as a government employee, not as a private citizen.

The 11th Circuit also affirmed the district court's order granting summary judgment as to the Plaintiff's FCA qui tam claims. The Court agreed with Mr. Appel that the Plaintiff was not the original source of the information upon which her FCA claims were based.

David Overstreet obtained a summary judgment on behalf of an attorney sued for abuse of process, civil conspiracy, and a violation of the South Carolina Frivolous Proceedings Sanctions Act. In the case, Plaintiff contended that the attorney had encouraged parties to have him file multiple baseless lawsuits that were all, eventually, voluntarily dismissed. The lower Court granted the Motion for Summary Judgment which was later upheld by the South Carolina Supreme Court. See Pye v. Estate of Fox, 633 S.E.2d 505 (S.C. 2006)

Dave Root obtained a jury verdict in favor of defendant builder of $2,000,000 home for alleged construction defects. (January 2006).

Fred Valz was successful in a jury trial of a declaratory judgment action on September 10, 2005, before the Honorable K. Dawson Jackson in the Superior Court of Gwinnett County. The case involved the validity of a named driver exclusion endorsement in a commercial automobile insurance company policy.

Fred Valz was successful in a declaratory judgment action in the United States District Court for the Northern District of Georgia, Atlanta Division, before the Honorable William S. Duffey, Jr. The declaratory judgment action involved a dispute between insurers as to whether the underlying insurance policy provided coverage for a sexual assault claim. Mr. Valz was successful in recovering $850,000 for the umbrella carrier who had fronted a settlement and then made a claim against the underlying insurer.

2005 WL 2640978 (11th Circuit Court of Appeals 2005). On May 3, 2005, Dave Root was affirmed on appeal by the 11th Circuit Court of Appeals on their summary judgment for a commercial insurer in a $4.5 million third-party bad faith suit. Dave argued that the plaintiff, an injured third party who had obtained a default judgment against another driver, was barred from seeking satisfaction of the judgment from that driver's employer's insurer. At the time of the accident, the driver was operating her employer's vehicle which was insured under a business auto policy, however, the driver was specifically excluded from the policy. Plaintiff's counsel asserted that because the named driver exclusion was not signed it was not enforceable. The 11th Circuit held that the named driver exclusion was clear and unambiguous and enforceable under Georgia law.