Representative Cases

Chris Wall and Megan Boyd represented an insurer in a coverage action stemming from a shooting death at the insured’s restaurant. The underlying plaintiff drove to the restaurant to meet a friend and was shot and killed in the parking lot by a robber, who was later convicted of first degree murder.  The insured sought coverage under the policy, but trial court granted the insurer’s motion for summary judgment, finding that the intentional shooting was not an “accident” that would trigger coverage under the policy and finding that even if the shooting were an “accident,” the assault and battery exclusion in the policy barred coverage for the claims against the insured arising from the shooting.

Cheryl Shaw obtained summary judgment for her client, a local building inspection company, in a case involving allegations of negligence, breach of contract, and breach of fiduciary duty.  Plaintiff claimed that the company, who was hired by a national lender to conduct limited inspections during construction of the subject home, negligently performed its services and breached various duties owed to the plaintiff.  Cheryl argued, inter alia, that the plaintiff failed to prove its case and that no such duties were owed.  The Superior Court of Putman County agreed, entering summary judgment for Cheryl’s client on all six counts and dismissing the plaintiff’s' case in its entirety.

Sarah Wetmore successfully negotiated a settled on behalf of her subcontractor client in a complex, multi-million dollar construction defect case involving facilities at a local hospital.  Pending motions filed on behalf of her client regarding statute of limitations and statue of repose defenses and strong expert witness support also played a role in reaching a resolution.

John Bunyan and Shannon Sprinkle won dismissal of an action against a law firm retained to initiate foreclosure proceedings. Granting Carlock Copeland's motion to dismiss, the U.S. District Court for the Northern District of Georgia concluded that the Plaintiff's negligence claim failed because the law firm did not owe him any duty of care in the foreclosure proceedings. The district court also rejected  Plaintiff's “robo-signing” challenge to the assignment of his security deed executed by the law firm, finding that he lacked standing to challenge the assignment.

Sarah Wetmore successfully defended a golf course in a slip and fall action. Following jury selection and opening arguments, plaintiffs accepted the settlement offer made before trial to resolve their dispute. The trial would have lasted one to two weeks and the defense was prepared to offer compelling testimony from an engineer, a human factors expert and a physician, in addition to numerous directors and employees of the golf course.

Billy Newcomb and Joe Hoffman represented a real estate agent and her brokerage against claims for conversion of Plaintiff’s personal property worth over $100,000, trespass, wrongful eviction and tortious interference with contract.  Plaintiff settled with the brokers’ co-defendant but refused to dismiss his claims against the brokers prior to the close of discovery.  After Billy and Joe filed a motion for summary judgment, Plaintiff opted to promptly dismiss all of his claims against the brokers rather than respond to the motion.

John Bunyan and Joe Kingma won dismissal of an action against a law firm retained to initiate foreclosure proceedings. In granting Carlock Copeland's motion to dismiss, the U.S. District Court for the Middle District of Georgia rejected Plaintiff's challenge to the assignment of his security deed executed by the law firm, concluding that Plaintiff lacked standing to challenge the assignment and that the assignment complied with Georgia's laws on transferring deeds. The district court also rejected Plaintiff's claims that the law firm violated the federal Fair Debt Collection Practices Act by misidentifying his creditor because she did not allege that the firm was a debt collector. Finally, the court concluded that the correspondence attached to the Complaint showed that the law firm gave the Plaintiff the required notice of the foreclosure sale.

Fred Valz and Megan Boyd recently represented an insurer in a declaratory judgment action arising from a golf cart accident at a political fundraising event. The United States District Court for the Northern District of Georgia granted the insurer’s motion for summary judgment, finding that the insurer’s automobile insurance policy did not provide coverage for injuries arising from the golf cart accident. Specifically, the court concluded that the golf cart did not meet the policy definition of “auto” because it was not designed for use “principally upon public roads.” The court concluded that the golf cart lacked the safety and other features present on vehicles designed for use on public roads and even though it was capable of being driven on roadways, the golf cart had not been designed “principally” for use on public roads.

John Bunyan and Joe Kingma won dismissal of an action against a law firm retained to initiate foreclosure proceedings. The U.S. District Court for the Northern District of Georgia concluded that Plaintiff did not plead any allegations to support a claim under the federal Fair Debt Collection Practices Act or National Housing Act, did not allege that she tendered the amount due on her loan to state a claim under Georgia's Uniform Commercial Code, and did not explain how the law firm violated Georgia's foreclosure laws.

Billy Newcomb secured pre-discovery dismissal of his appraiser client from a lawsuit in which a bank alleged breach of contract, negligence and fraud arising out of a series of appraisals performed by the appraiser.  Billy argued that the court did not have personal jurisdiction over the North Carolina-based appraiser under Georgia’s long-arm statute.  The court agreed and granted the appraiser’s motion to dismiss. 

In a cased filed in the State Court of Gwinnett County, Billy Newcomb and Joe Kingma represented an accounting firm accused of professional negligence and breach of fiduciary duty for allegedly 1) failing to inform its client that an employee had been embezzling funds from the company and 2) failing to properly monitor and maintain the client’s financial records.  The client-plaintiff alleged damages in excess of $2 million.   

Billy and Joe filed a pre-discovery motion to dismiss.  Rather than opposing the motion, the plaintiff simply dismissed the lawsuit. 

On March 8, 2013 a Florence County, South Carolina jury returned a defense verdict for a CCS client and nationally renowned specialist in the field of robotic surgery. Our client was named in a multi-party lawsuit over complications following a robotic prostatectomy in 2007. The physician was serving as the surgical proctor for the two primary surgeons, who were completing their eighth robotically assisted prostatectomy. Undetected by the primary surgeons, a portion of the patient’s prostate gland remained inside the patient’s body after the surgery. The primary surgeon subsequently chose to irradiate the patient, which resulted in radiation-induced urinary strictures and resultant bladder diversion.

Our physician client contended that, as a proctor, he did not have a physician/patient relationship in his role. We presented evidence that the client never met the patient prior to surgery, was not given hospital privileges to participate in the surgery or a temporary medical license in South Carolina. He also contended that the error in leaving prostate tissue behind was one that could not be detected visually by anyone observing the surgery outside the controls of the robot. Plaintiff sought $4,500,000 in damages at trial. All other defendants settled or were dismissed prior to trial.

After a one week trial, the jury exonerated the physician by a special verdict form finding that no physician/patient relationship existed between the proctor and the patient. Carlock Copeland Attorneys Gary Lovell, Lee Weatherly and Kristen Kelley represented the physician at this trial. This victory will help ensure that proctors and other teachers in the medical field can continue to come to South Carolina and share specialty knowledge and new medical technology and techniques without fear of implication in the alleged malpractice of other providers.

John Bunyan and Shannon Sprinkle won dismissal of a wrongful foreclosure action against a law firm retained to initiate foreclosure and dispossessory proceedings. Plaintiff challenged foreclosure proceedings against three properties that he alleged had been transferred to him after the original borrowers had signed promissory notes and security deeds. The district court dismissed Plaintiff’s claims because he lacked standing to challenge foreclosure proceedings brought under security deeds that he was not a party to, he had not alleged that the loans in default had been satisfied, and his own personal bankruptcy did not operate as a stay of foreclosure proceedings based on the original borrowers’ default on their loans.

John Bunyan and Shannon Sprinkle won dismissal of federal claims against a law firm retained to initiate foreclosure proceedings. Plaintiff alleged that the law firm violated the Fair Debt Collection Practices Act by pursuing foreclosure proceedings after she requested verification of her debt.  Granting Carlock Copeland's motion to dismiss, the U.S. District Court for the Northern District of Georgia held that Plaintiff’s Complaint was insufficient to show that the firm met the statutory definition of a "debt collector."

Megan Boyd recently succeeded in getting a default judgment entered against her client vacated and the case against him dismissed. The plaintiff in the case had filed a renewal action but had failed to properly serve Megan’s client in the prior suit. Before Megan was retained in the renewal action, a default judgment was entered against her client. Megan succeeded in getting the default judgment vacated and the case dismissed on the ground that the prior suit was void and, therefore, not renewable under O.C.G.A. § 9-2-61.

Dan McGrew and Kim Ruder represented a well-known national security contractor in a premises liability case in Fulton County.  The Plaintiff, who worked in a business office park secured by the client, suffered a trip and fall incident on the morning of April 9, 2010.  While entering an elevator located within one of the office buildings, she tripped over a loose board on the floor, which had been placed during a construction project.  As a result of her fall, the Plaintiff claimed she sustained significant physical injuries, including an injury to her back.  She ultimately underwent spinal surgery, developing a blood clot requiring long term treatment.  Plaintiff further claimed she was unable to work as a result of her injuries and remained in chronic debilitating pain.  McGrew and Ruder filed a Motion for Summary Judgment arguing that the Plaintiff’s Complaint adding the security contractor as a Defendant was barred by the applicable statute of limitations.  They successfully argued that Plaintiff’s amendment to add the security contractor to the action was filed more than a month after the two year statute of limitations expired.  They also successfully argued that Plaintiff did not provide the requisite notice to the security contractor, which would have defeated the statute of limitations argument.  As such, the Court held that there was no evidence of relation back and dismissed the client. No appeal was sought by the Plaintiff.

Dan McGrew and Chris Wall recently obtained a directed verdict on behalf of their neonatology clients at trial in DeKalb County State Court. This case involved allegations of failure to timely diagnose and treat Retinopathy of Prematurity in a baby born at 24 weeks gestation, weighing 628 grams.  The baby survived extreme prematurity but developed permanent bilateral blindness as a consequence of prematurity.  Plaintiffs sued the neonatologists, ophthalmologists and hospital where the baby was born.  At trial, Dan and Chris successfully argued that the opposing ophthalmology expert should not be allowed to testify as to certain neonatology decisions.  As a result, the Court determined that a directed verdict was appropriate as to the neonatologists and entered judgment in their favor prior to the case going to the jury.   Plaintiffs sought close to $50 million in damages at trial.

Shannon Sprinkle and Ana Calleja obtained summary judgment for a well- respected Atlanta law firm after a Plaintiff had sued the firm for mistakenly confusing her and her daughter who had the same name. The Plaintiff alleged that she had been harassed and tormented in efforts to collect HOA fees owed by Plaintiff’s daughter. Plaintiff and her daughter shared the same first and last name and middle initial. Collection notices were sent to the Plaintiff at her home in Tennessee and she claimed the harassment and stress caused significant health and financial problems.

The name confusion was later remedied and Plaintiff was dismissed from any further collection activities; nevertheless, Plaintiff pursued an action against the firm for bad faith and abusive litigation, negligent misrepresentation, unjust enrichment, and alleged FDCPA violations.

Carlock, Copeland pursued discovery and demonstrated that Plaintiff had a history of litigiousness and her claims were nothing more than a mistaken identity. It was shown that Plaintiff had not suffered the harm she claimed and the firm had not taken the abusive and harassing actions alleged in the Complaint. The law firm’s Motion for Summary Judgment was granted by the Fulton Superior Court.

This case may be appealed , so watch for further updates.

John Bunyan and Joe Kingma won dismissal of a wrongful foreclosure action against a law firm retained to initiate foreclosure proceedings. Plaintiff raised wrongful foreclosure, breach of contract, and fraudulent misrepresentation claims alleging that the foreclosure proceedings were wrongful because the bank had failed to produce a verified copy of the promissory note showing it was the creditor authorized to foreclose, had breached the notice terms of the security deed, and had misrepresented that the foreclosure sale would be postponed while the plaintiff negotiated a loan modification. The U.S. District Court for the Northern District of Georgia granted Carlock Copeland’s motion to dismiss, concluding that the plaintiff failed to state any claim for relief against the law firm.

Partners Eric Frisch and Broderick Harrell obtained a defense verdict for two hospitalists in the State Court of Henry County.  Plaintiffs alleged that a 63 year old patient died of undertreated low blood pressure, which led to decreased blood flow to the heart, eventual cardiopulmonary arrest, and death.  The patient was admitted to the floor from the emergency department by one of the defendant hospitalists.  The records reflected a phone call over night to the second defendant hospitalist, who did not remember receiving the call.  The defense successfully showed that the patient presented with viral gastroenteritis that was diagnosed and treated appropriately, but the virus attacked her heart, leading to myocarditis, a rare and frequently fatal condition that is difficult to diagnose and treat.

Jason Hammer secured summary judgment in favor of his client in DeKalb County State Court. The plaintiff alleged negligent entrustment after being struck as a pedestrian and suffering serious injuries. The plaintiff claimed Jason’s client negligently entrusted her vehicle to her co-defendant/husband, knowing her husband’s license was suspended and that he was specifically excluded under her liability policy. Jason argued that the co-defendant’s license suspension was for failing to appear in court, and did not give rise to an issue of fact as to a “known habit of recklessness.” The trial court agreed and granted summary judgment in the defendant’s favor.

Ryan Wilhelm recently obtained summary judgment on behalf of a product manufacturer in a wrongful death suit. The suit alleged that the decedent Plaintiff became sick and ultimately died from mesothelioma as a result of using the Defendants’ products. Ryan successfully moved for summary judgment by arguing there was insufficient evidence to prove the decedent either used or worked with our client’s product. After a hearing on the matter, the Court found that there was insufficient evidence of product use, and held that our client was entitled to summary judgment as to all claims asserted.

Jason Hammer represented an insurer in an action to enforce a hospital lien in Fulton County Superior Court. The hospital alleged that when an underlying personal injury case was settled, the insurer failed to satisfy the $67,000 outstanding hospital lien. The hospital sought recovery of the lien amount, plus attorneys’ fees. Jason moved for summary judgment at the trial court level, asserting that the hospital failed to file its complaint “within one year after the date the liability is finally determined,” as required under the hospital lien statute. The critical issue was whether or not the hospital must file within one year of the underlying case being settled, or within one year of the execution of the subsequent release memorializing the settlement. Although the trial court denied the Motion, Jason successfully petitioned the Court of Appeals to take up the issue. After hearing oral argument, the Court of Appeals reversed the trial court, holding the hospital missed their statute of limitations by failing to file within one year of the underlying settlement.

Shannon M. Sprinkle and Ana M. Calleja secured dismissal of their lawyer-client from a lawsuit filed by a plaintiff who claimed the lawyer had misused attorney-client privilege, abused court process, and committed other wrongs in the representation of Plaintiff’s ex-wife.

The Court dismissed the case finding that the Plaintiff’s claims against the lawyer and his law firm could not succeed.

On January 22, 2013, the Supreme Court of Georgia ruled on a question certified from the U.S. District Court and held that juries imposing damages under O.C.G.A. § 51-12-6 are not entitled to see evidence of the defendant’s “worldly circumstances,” i.e., wealth. The question arose during an attorney malpractice trial before the U.S. District Court for the Southern District of Georgia in Augusta.

John Bunyan, Pete Werdesheim, and Joe Kingma represented the defendant lawyer and his firm and, through skillful motion practice, eliminated all of the Plaintiff’s claims for actual damages and punitive damages. The District Judge noted that the only remaining damages were to the plaintiff’s wounded feelings, which are recoverable under O.C.G.A. § 51-12-6. Plaintiff asked the Court to permit the jury to hear evidence of the lawyer’s wealth, while CCS countered that the legislature had amended § 51-12-6 in the Tort Reform Act of 1987 to preclude such evidence. The District Judge relied upon the Court of Appeals decision in Tahamtan v. Tahamtan, admitted the evidence, and gave the pattern jury charge that instructed the jury to consider the lawyer’s wealth in assessing damages. The last testimony the jury heard was that the individual defendant lawyer made more than a million dollars in 2010 and that he owned two houses, two boats, a Lexus, and a BMW. The jury came back with an award of $700,000 to the plaintiff for his emotional distress. CCS filed post-trial motions and appealed. The District Judge held that whether evidence of a defendant’s wealth was still admissible under § 51-12-6 was unsettled and certified the question to the Georgia Supreme Court.

Justice Hines, for a unanimous Supreme Court of Georgia, concluded that the statutory changes to § 51-12-6 precluded the admission of worldly-circumstances evidence, overruled the Court of Appeals decision in Tahamtan, and struck the pattern jury charge for § 51-12-6. If this decision had gone the other way, then aggressive plaintiff’s attorneys would undoubtedly seek out wealthy defendants who had “intentionally“ hurt a plaintiff’s feelings and then use evidence of the defendant’s wealth during the liability stage of the case to recover vast riches where there were no real damages. Fortunately for all of those who have accumulated assets as a result of their hard work, the Supreme Court of Georgia took the side of Tort Reform in this instance.

The decision was featured in a front page article in the Fulton County Daily Report the day after it was issued. You can watch Joe’s winning argument before the Supreme Court below.

John Bunyan and Joe Kingma won dismissal of a wrongful foreclosure action brought against a law firm that was retained to initiate foreclosure proceedings. The plaintiff alleged that MERS was not authorized to assign his security deed, that the bank could not foreclose because his note and security deed had been split during the assignment process, and that he had been fraudulently induced to believe that foreclosure proceedings would be stayed while he negotiated a loan modification. The U.S. District Court for the Middle District of Georgia dismissed the case because the plaintiff’s security deed authorized MERS to assign the power of sale and the foreclosing bank held the plaintiff’s note and security deed at the time the law firm initiated foreclosure proceedings.

John Bunyan and Shannon Sprinkle won dismissal of a wrongful foreclosure action against a law firm retained to initiate foreclosure proceedings. Plaintiff argued that the foreclosure proceedings were wrongful because the bank had failed to produce a verified copy of the promissory note showing it was the creditor authorized to foreclose, had breached the notice terms of the security deed, and had misrepresented that the foreclosure sale would be postponed while the plaintiff negotiated a loan modification. The U.S. District Court for the Northern District of Georgia dismissed plaintiff’s claims, agreeing with Carlock Copeland’s arguments that the claims were barred by res judicata based on the dismissal of the plaintiff’s prior action challenging the foreclosure sale and otherwise failed to state any claim for relief.

Jason Hammer successfully defended an insurer in an action to enforce a hospital lien in Muscogee County Superior Court.  The hospital alleged that when an underlying personal injury case was settled, the insurer failed to satisfy the $50,000 outstanding hospital lien.  Jason successfully moved for summary judgment, arguing that the hospital failed to meet the perfection requirements of the hospital lien statute and that even if the lien had been properly perfected, the settlement of the underlying claim prior to the verified statement of the lien being filed precluded recovery.

A resident of a condominium building brought a negligence claim against a professional engineering firm that provided mechanical engineering services for the building. Greg Wheeler and Brent Meyer filed a Motion to Dismiss on the basis that the Plaintiff failed to file the statutorily required expert affidavit. In response, the Plaintiff sought to voluntarily dismiss the engineering firm without consent of all parties or court order. A voluntary dismissal would have allowed the Plaintiff to re-file her claim against the firm. Greg and Brent argued that the Plaintiff could not dismiss voluntarily without consent of all parties and sought dismissal with prejudice through the Motion to Dismiss. As a result, the Court dismissed with prejudice the claims brought by the Plaintiff for the failure to file the affidavit and the Plaintiff was barred from re-filing the claim. The dismissal resulted in the client avoiding substantial costs related to discovery and motions.

Brian Spitler and Joe Kingma prevailed on behalf of their accountant clients when an array of rich investors sued trying to recover their Ponzi Scheme losses. The Fulton Superior Court Judge issued his 40 page order on January 4, 2013.

The case arose when a hedge fund that operated as a Ponzi Scheme for years failed. The principal of the failed fund pleaded guilty to wire fraud and was incarcerated in the federal penitentiary. Two hedge funds that had invested in the failed fund, along with several trusts and wealthy individuals sued the accounting firm for: fraud; breach of fiduciary duty; violation of the Georgia Securities laws; RICO; and breach of contract. The Plaintiffs were represented by a large, prominent, financial and securities law firm. Plaintiffs alleged that the accountants sent them monthly statements which vastly overstated their investment values and were also internally inconsistent. The complaint further alleged that the accountants must have known of the scheme because the accountants knew: that the hedge fund was required to have an annual audit; the fund’s partnership agreement identified the accountants as its auditors; that the fund had never been audited; that investors had sent letters to the accounting firm referring to it as the funds auditors; and that the monthly statements that the accountants sent out for years referred to an annual audit.

The courts well-reasoned decision first noted that the monthly bore a clear disclaimer and that it was undisputed that the principal had lied to all the parties to conceal his thefts. The Court then went on to systematically dismember the claims.

The negligent misrepresentation claims failed because the monthly statement’s disclaimers destroyed any claim of reasonable reliance. The accountants were also not liable for the funds offering documents and the accountants themselves never said they were the funds auditors. The plaintiffs failed to show the specific reliance necessary for their “Holder Claims” to prevail under Georgia law. Finally the Plaintiffs failure to exercise due diligence also defeated the negligent misrepresentation claims.

The Court also dismissed the fraud claims because the plaintiffs could not show reasonable reliance or scienter. The claims under the Georgia Securities Acts of 1973 and 2008 failed because there was no evidence the accountants were guilty of “severe recklessness “ and because accountants are not “ Sellers” under the Acts.

The Rico claims failed because there was no evidence that the accountants participated in the Ponzi scheme or that they had any criminal intent. The court found that minor, inadvertent document destruction was routine and immaterial.

The remainder of the claims were wiped out by the In Pari Delicto Doctrine. The court specifically held that even though the failed fund had innocent shareholders, the adverse interest exception to the In Pari Delicto Doctrine did not apply.

This decision may be appealed so stay tuned.

Mike Ethridge represent a nationally prominent developer and builder of apartment buildings in a case related to alleged construction defects brought by a class of homeowners after the apartments were converted to condominiums. The homeowners (along with the Convertor and the Property Owners Association) sued Mike's client for construction defects allegedly totaling over $16,000,000.

Mike filed a motion for summary judgment arguing that there is no duty that flows from a builder of commercial income generating apartments to a downstream condominium purchaser. The case (which was projected to take from 2 to 3 weeks to try) had been specially set for trial for a full year. It involved numerous parties and had spawned several ancillary declaratory judgment actions relating to coverage.

Mike argued the motion for summary judgment a month before trial was set to begin. On the eve of trial, the judge granted the motion for summary judgment and dismissed all claims against their client. Depending on the appeal, this ruling could have far-reaching implications for cases involving actions against apartment builders when their apartments are later converted to condominiums.

The 11th Circuit Court of Appeals affirmed the trial court’s grant of summary judgment in favor of an insurer in declaratory judgment action. The insured had been convicted of murdering his wife and had been sued in a subsequent wrongful death action by his wife’s parents. The Court of Appeals held that the intentional/criminal acts exclusion contained in a homeowner's policy precluded coverage. Accordingly, the Court held that the insurer had no obligation to defend or indemnify the insured in the underlying wrongful death.

Mike Ethridge appealed a summary judgment in favor of an insured and against Carlock Copeland’s client, an insurance company. The Defendant had denied coverage for a claim arising from the insured’s construction of a horse barn. Mike contended that the claim was essentially one for defective work, and as such there was no coverage available. The insured filed a declaratory judgment action against the client alleging that they had wrongfully denied defending and indemnifying the insured in the underlying lawsuit. Mike filed cross motions for summary judgment. The trial court granted the insured’s motion and found that the Defendant did have a duty to defend the insured in the underlying case, and had failed to fulfill its contractual obligations to the insured. Therefore the insured was entitled to collect costs and attorney’s fees from the client. Mike appealed the trial court’s finding. The Court of Appeals agreed and ruled that the “Your Work” exclusion applied to preclude coverage, and there was no duty to defend. The decision also included a lot of discussion regarding what constitutes an “occurrence” and what constitutes “property damage” in CGL policies for general contractors—topics of significant interest in South Carolina insurance and construction law.

Dan McGrew and Neil Edwards defended a case of negligence filed against a regional building maintenance and operations service provider. The Plaintiff claimed that an improperly secured ladder fell and struck her, thereby causing significant shoulder injuries.

Plaintiff's counsel argued and presented evidence to the jury that Plaintiff was permanently disabled, unable to work, and had undergone three painful surgeries as a result of the accident. Further, Plaintiff argued that this was a case of clear liability because the ladder was placed near a doorway and should have been placed on the ground while it was unattended. Dan and Neil presented evidence that the incident was nothing more than an "unanticipated, unforeseeable accident" and asked the jury to find in favor of the Defendants. As an alternative, they requested a damage award related only to an AC Joint Sprain and inflammation that resolved within a year of the accident. Finally, Defense argued that the evidence showed that the Plaintiff’s rotator cuff tear and extensive subsequent medical treatment was not related to the subject accident.

Plaintiff's lowest pre-trial demand was $900,000; halfway through the trial the Plaintiff lowered demand to $550,000. However, the jury deliberated for approximately eight hours and reached a verdict for the Plaintiff in the amount of only $17,000.

Megan Boyd successfully represented an insurer at a bench trial in a bad faith action brought pursuant to O.C.G.A. § 33-4-7. The plaintiff alleged that the insurer had acted in bad faith in failing to pay her a reasonable sum for diminution in value of her vehicle, a vehicle that was more than 10 years old and had been involved in multiple prior accidents. The judge found that the insurer had not acted in bad faith and had paid the plaintiff an appropriate amount for diminution in value.

Pete Werdesheim, Lindsey Hettinger, and Joe Kingma successfully briefed and argued a Motion for Partial Summary Judgment in an abusive litigation case in the State Court of Fulton County. Plaintiffs, who are represented by a well-regarded Atlanta law firm, seek over $10 million in damages, a sum they contend is attributable to a frivolous lawsuit and lis pendens that impaired the marketability of certain industrial property they owned. By granting partial summary judgment, Judge Susan Edlein eliminated one plaintiff’s claims entirely and struck the remaining plaintiff’s attempt to recover punitive damages, thereby eliminating well over half of the damages Plaintiffs hoped to recover from Carlock Copeland’s law firm client.

Heather Miller and Ana Calleja recently secured a dismissal with prejudice and an award for attorneys' fees on behalf of a shopping center and a parking contractor. Plaintiff alleged that both the shopping center and the parking contractor were negligent following a trip and fall incident involving a minor. After Plaintiff failed to cooperate in discovery, Heather and Ana filed a motion dismiss and argued that a dismissal with prejudice was the appropriate sanction. The Court agreed and found that Plaintiff's repeated failure to cooperate was willful and caused unnecessary delay. The Court granted the motion to dismiss with prejudice and also granted the requested amount of attorney's fees for both clients.

The Plaintiff participated in assembling and redeveloping more than 50 properties in midtown Atlanta. He was paid several million dollars for his efforts but tried to claim he was a partner in the project. He sued the lawyer who had largely funded the acquisitions as well as the lawyer's law firm. He claimed they had represented him, breached their fiduciary duty and committed malpractice. He also sought to dissolve the alleged partnership and recover for unjust enrichment.

The trial court noted there was an unsigned Memorandum of Understanding that suggested an intent by the Plaintiff and the lawyer to become partners and that a partnership could be created by oral agreement. It also noted the law firm had stated in several letters that it represented the Plaintiff. Nonetheless, the court held the Plaintiff had failed to demonstrate the parties had agreed to all of the essential terms of a partnership and he could not have reasonably believed the law firm was representing him individually. Thus, all his claims collapsed and summary judgment was affirmed by the Court of Appeals on November 21, 2012.

Joe Hoffman, Billy Newcomb and Joe Kingma represented the law firm.

Developer’s claims arose from a failed multi-million dollar sale. The Court of Appeals decision, dated November 16, 2012, affirmed that the alleged tortious interference was instead protected speech. The court also held that a confidentiality agreement plaintiffs sought to rely on could not be enforced by third parties. In addition, the court held that the statements made were privileged.

The plaintiff LLC had as investors some politically powerful local residents who won a verdict of 1.8 million dollars on the same facts against the City of Suwanee. Joe Hoffman, Bill Jones, and Joe Kingma developed the legal theories, and drafted and argued the winning motion. This case may be appealed to the Supreme Court, so stay tuned for further developments.

Dan McGrew and Christina Wall secured a defense verdict for their clients in this medical malpractice action. Plaintiff sustained an injury to his back after flipping over a riding lawn mower, such that it landed on him. While in the hospital following the accident, he experienced numbness and a loss of sensation in his legs and, ultimately, became paralyzed. Plaintiff claimed this was the result of improper treatment, but we were able to show that the change in condition was the result of a medical event unrelated to treatment. Plaintiff sought $10 million at trial. However, the jury returned with a defense verdict in just under an hour.

Joe Hoffman and Joe Kingma had their motion to dismiss granted on November 13, 2012 in the State Court of Jenkins County. Plaintiff alleged that he lost rental properties as a result of the defendant attorney’s negligence, intentional misrepresentation, breach of fiduciary duty, breach of contract, and fraud. Plaintiff’s claims against the defendant lender remain. This order may be appealed, so watch this space for further developments.

Joe Hoffman and Joe Kingma represented a CPA firm hired by a department of the State of Georgia to review records from a state contractor. Based on that review, the contractor was stricken from the program and was ordered to refund fees already received. The contractor sued the CPA in the Superior Court of Dekalb County. On November 5, 2012, the trial court granted Carlock Copeland’s motion to dismiss. This result may be appealed, so watch this space for further developments.

John Bunyan and Shannon Sprinkle won summary judgment on behalf of their client, a well known litigation firm specializing in lender services. The firm had been accused of FDCPA violations. The District Court rejected Plaintiff’s claims that the law firm had proceeded with a foreclosure before its client had a proper security interest.

The other claims in Plaintiff’s Complaint had been dismissed in an earlier motion filed by John and Shannon, and that ruling was upheld by the Eleventh Circuit.

This case may be appealed again so watch for further updates.

Shannon Sprinkle and Lindsey Hettinger won the dismissal of false arrest and false imprisonment claims filed against a Special Assistant Attorney General representing Georgia's Department of Human Services. The Plaintiff alleged the attorney improperly instigated his arrest during a court hearing. The Plaintiff had prevailed in the Court of Appeals to overturn a prior judgment against him.

Pete Werdesheim secured dismissal of a grievance filed against a Georgia lawyer by a former bank client. The bank alleged the lawyer, who owned stock in the bank’s holding company, violated certain Rules of Professional Conduct regarding confidentiality and conflicts of interest by circulating a letter to fellow shareholders that opposed an amendment to the holding company’s bylaws and threatening related litigation. The State Bar’s Office of General Counsel referred the matter for further proceedings, but the Investigative Panel of the State Disciplinary Board dismissed the grievance.

Partners Gary Lovell and Lee Weatherly secured a dismissal with prejudice for their client, an Ob-Gyn, in a York, South Carolina medical malpractice case.  The Plaintiffs were a mother and her child who was born premature at 25 weeks and suffers from several developmental delays.  Plaintiffs claimed that when the mother presented to the emergency room, Gary and Lee’s Ob-Gyn client, who was on call, breached the standard of care by failing to come to the emergency room and examine the mother for reported vaginal discharge.  Plaintiffs claimed that if the doctor had come to the ER after speaking with the labor and delivery nurse on the telephone about the patient, he would have hospitalized the mother and undertaken treatment to delay the delivery of the child.  The Plaintiff also claimed that the mother should have been treated with antibiotics before birth.  After aggressively establishing a solid defense for the Ob-Gyn, Plaintiff agreed to dismiss him from the case, with prejudice, without payment.  For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com.

Brent Meyer successfully defended a gymnasium at trial from claims by a plaintiff that she incurred personal injuries from a hazardous condition on the gym's premises. The plaintiff alleged that she tripped over a hazardous condition and that the defendant had constructive knowledge of the condition under Georgia law. The trier of fact determined that the gym client did not have constructive knowledge because the alleged hazardous condition was not obvious. As such, the client had no liability to the plaintiff.

John Bunyan and Joe Kingma won summary judgment in the Southern District of Georgia on September 25, 2012. Plaintiff owned a large retail operation that fell on hard times. The defendant law firm represented the plaintiff and his corporation in the defense of creditor claims and then in bankruptcy. While the corporation was in bankruptcy, plaintiff signed a personal guaranty on a big chunk of the store’s debt to avoid the appointment of a trustee. He also authorized the law firm to acknowledge service on his behalf and then fled the country. He was sued on the guaranty, and the defendant law firm accepted service on his behalf. No response was timely filed, and the suit went into default and was ultimately paid by the plaintiff. He sued the law firm, claiming it breached its duties in (1) advising him to sign the guaranty, and (2) allowing the suit to go into default.

John and Joe argued, in part, that judgmental immunity protected the advice to sign the guaranty and that the plaintiff could show no damages proximately caused by the alleged failings. With this motion pending, the plaintiff, through his corporation, sought to bring adversary claims in the bankruptcy court against the defendant law firm. John and Joe acted quickly to negotiate a settlement of those claims with the trustee. While the debtor corporation, through the plaintiff, vigorously opposed the settlement, the bankruptcy court approved it after a daylong hearing.

Finally, the U.S. District Court granted summary judgment to the law firm on the individual plaintiff’s claims. The bankruptcy court’s approval of the settlement was appealed, and the grant of summary judgment may be as well so stay tuned. The district court’s well-reasoned 39-page order offered this observation, which is applicable to many malpractice claims: “The polished lens of hindsight makes easy play of counterfactuals so caution must be taken to guard against its prejudices.”

Dan McGrew and Kim Ruder represented a neurosurgeon in a catastrophic injury medical malpractice matter in Gwinnett County. The patient, who had sustained a serious fall from a tall scaffolding presented to the ER where he was evaluated by the neurosurgeon. The patient was diagnosed with a burst fracture of the L1 vertebrae and taken to surgery for surgical stabilization. Following surgery, the patient continued to complain of back pain with lower extremity weakness, leading to an inability to function and an inability to work. The patient ultimately underwent a second surgery by another surgeon months later. The plaintiff claimed that the neurosurgeon was negligent in failing to adequately decompress and stabilize his spine. The plaintiff filed suit two years after the anniversary date of the surgery performed to allegedly correct the inadequate decompression. McGrew and Ruder filed a Motion for Summary Judgment arguing that the statute of limitations expired prior to the two year anniversary of the subsequent surgery. McGrew and Ruder argued that the plaintiff’s claim was time barred since the plaintiff had actual knowledge of the alleged medical negligence a week prior to the surgery, and thus the trigger date for the statute of limitations had begun a week earlier. Following receipt of the Motion, the plaintiff dismissed his claim.

David Overstreet and Mike McCall obtained dismissal of a patent law legal malpractice action after successfully defeating a motion to remand. Overstreet and McCall asserted federal patent jurisdiction to remove the case from state court and then moved to dismiss the Complaint for failure to file the requisite expert affidavit. The federal district court, the first in the District of South Carolina to address the issue of patent jurisdiction in the context of a legal malpractice claim, agreed that the allegations in the Complaint triggered federal patent jurisdiction. After retaining jurisdiction, the court rejected Plaintiff’s argument that the case fell within the common knowledge exception to the expert affidavit statute and dismissed the case against the attorney in its entirety.

Partners Lee Weatherly and Gary Lovell recently prevailed before the 4th Circuit Court of Appeals, affirming the dismissal of a class action case where Lee and Gary represented a North Carolina eye surgeon.  In this suit, the class representative claimed that a number of ophthalmologist eye surgeons and their employer, a national corporation, conspired together to violate the Federal Racketeer Influenced and Corrupt Organizations Act (RICO).  The Plaintiff alleges that all of the Defendants conspired together to fraudulently misrepresent and hide from patients the fact that negligent medical care had been rendered.  The Plaintiff alleges that the national corporation developed, and all Defendants utilized, an electronic data system to further the conspiracy to delay disclosure of the alleged negligent care to patients until after the state statute of limitations had expired.  Lee and Gary’s client adamantly denied providing negligent care to any patients or participating in any conspiracy.  The South Carolina District Court dismissed the class action for a number of reasons and the Fourth Circuit Court of Appeals recently upheld the lower court’s dismissal. For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com.

John Bunyan and Shannon Sprinkle successfully defended a well-respected local law firm against putative class action claims. Following John and Shannon's successful dismissal of many of Plaintiff's original claims, the Plaintiff sought class certification for remaining FDCPA claims. The District Court dismissed the putative class claims agreeing with the Defendants that they had not been timely pursued.

Pete Werdesheim and Joe Hoffman secured dismissal of a lawsuit brought against a law firm under the Fair Debt Collection Practices Act. The Complaint alleged that the law firm's foreclosure notice violated various sections of the FDCPA. The Plaintiff had previously sued the lender in state court. In entering a judgment in favor of the lender for attorney's fees under Code Section 9-15-14, the state court made findings of fact and conclusions of law, including that the subject loan was for a business, rather than consumer, purpose. In the Motion to Dismiss, we argued that the state-court order had preclusive effect insofar as the FDCPA does not apply to such loans. The Magistrate Judge entered a Report and Recommendation that the Motion be granted on collateral-estoppel grounds. This Report and Recommendation was adopted by the District Judge in the Northern District of Georgia, resulting in entry of final judgment in favor of the law firm.

David Overstreet and Mandi Dudgeon recently prevailed on a Motion to Dismiss in a malpractice case filed against a lowcountry attorney over a debt collection matter in federal court. Plaintiffs filed an action for Violation of the Fair Debt Collection Practices Act (FDCPA), Fraud, and Negligent Misrepresentation, alleging that the attorney had harassed the Plaintiffs in collecting an improper debt. The Court held that the FDCPA claim failed as a matter of law and also dismissed the remaining causes of action.

John Rogers and Joe Hoffman obtained early dismissal of federal RICO claims against a tax accountant where the plaintiff claimed he filed improper tax returns on behalf of her and her former husband. Carlock Copeland successfully argued that the plaintiff failed to allege sufficient continuity in establishing a pattern of racketeering activity that is necessary for a RICO claim. The court then dismissed the other state law claims for lack of subject-matter jurisdiction.

Adam Appel and Kim Ruder recently defended a medical malpractice case against a pediatric intensivist. In that case, the plaintiff claimed that the intensivist was negligent in evaluating her two year old daughter who was transferred to the PICU and cared for by the intensivist. The child was ultimately diagnosed by the intensivist with herpes encephalitis. At the time of diagnosis, the child had sustained profound, catastrophic, and irreversible brain damage. The child now suffers from severe cerebral palsy, is confined to a wheelchair, and is dependent upon others for all of her needs. Based upon the profound brain damage, the plaintiff sought damages in excess of $10M The plaintiff argued that the pediatric intensivist was negligent in failing to timely diagnose the herpes encephalitis and arrest the progression of brain damage. Through exhaustive discovery, Appel and Ruder successfully demonstrated that the plaintiff was unable to prove that any delay in diagnosis by the pediatric intensivist caused or contributed to the child’s profound brain damage. As a result, the physician was dismissed from the suit with prejudice and no settlement funds were provided on behalf of the physician.

Michele Jones and Joe Kingma had their motion for summary judgment granted on July 26, 2012 in the State Court of Chatham County. Plaintiffs were wealthy investors from Savannah who helped to fund the acquisition and development of several buildings in downtown Savannah. While the project was initially successful in selling units at New York City prices, it eventually failed in the teeth of the real estate slump, and millions of dollars in investor money was lost. In separate actions the investors sued the managing members of their LLC, the LLC itself, the LLC’s contractor, and the LLC’s lender. The lender failed and was taken over by the FDIC, and the contractor filed for bankruptcy, although some of that litigation continues.

Michele and Joe filed a motion contending that while their law firm client had represented the LLC which did the development and had drafted the organizational documents for one of the plaintiff investors, they owed no duty to the investor plaintiffs. The trial court agreed and granted the motion for summary judgment.

While this case may be subject to appeal, for now all of plaintiffs’ claims are denied. Stay tuned for further developments.

Partners Gary Lovell and Lee Weatherly secured a dismissal with prejudice for their client, a general surgeon, in a Columbia, South Carolina medical malpractice case.  The Plaintiff alleged that after his now deceased mother underwent cardiac bypass surgery she developed a medical condition called Ogilvie’s Syndrome.  Plaintiff alleged that this condition resulted in a buildup of fluid and gas in his mother’s colon, causing a rupture or perforation and leading to her death.  Plaintiff alleged that Gary and Lee’s surgeon did not recognize the patient's ischemic colon in a timely fashion and improperly delayed performing surgery on the patient by approximately 12 hours.  After aggressively establishing a solid defense for the surgeon, Plaintiff agreed to dismiss him from the case, with prejudice, without payment.  For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com.

Erica Parsons and Jason Hammer represented an individual in an admitted liability motor vehicle accident case filed in DeKalb County State Court. The Defendant admitted negligently rear-ending the Plaintiff, but contested causation and the nature and extent of the Plaintiff's injuries and damages at trial. The only medical evidence presented by the Plaintiff was the testimony of his chiropractor. Despite the admission of negligence, the jury considered the minor damage to the vehicles, gaps in treatment and questionable testimony by the chiropractor as to causation, and returned a verdict in favor of the Defendant.

In this case, Dan McGrew and Christina Wall secured summary judgment in a medical malpractice/wrongful death case. Plaintiff argued that the defendant doctor failed to timely diagnose lung cancer. Dan and Chris were able to successfully show that under the complaints presented by the patient at office visits and the timeline of the diagnosis of advanced stage lung cancer, there was no evidence to support a finding that any action by the defendant doctor caused or contributed to the delay in diagnosis. The trial court granted summary judgment and Plaintiff did not pursue an appeal.

John Bunyan, Michele Jones, and Joe Kingma obtained a dismissal in federal district court for an attorney on alleged civil RICO and section 1983 conspiracy claims.

John Bunyan and Joe Kingma prevailed in the Georgia Court of Appeals, which affirmed the dismissal of claims brought directly by the plaintiff against a national insurance carrier. The Superior Court of Fulton County had dismissed the complaint in its entirety for failure to state a claim.

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.

Brent Meyer successfully represented an architect client and obtained a dismissal with prejudice from the plaintiff after a hearing on a Motion for Summary Judgment. The plaintiff, a construction worker, was allegedly injured at a construction site and brought a professional negligence claim against the architect client. Brent effectively filed and argued a Motion to Dismiss and Motion for Summary Judgment. Accordingly, all claims against the architect client were dismissed by the plaintiff after the oral argument prior to the judge entering an order.

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.

Dan McGrew and Kim Ruder defended a general surgeon who provided care and treatment to an incarcerated gentleman complaining of right lower quadrant pain. The patient was diagnosed with an appendicitis and taken to the OR for an appendectomy. Following surgery, the patient was discharged from the hospital in stable condition and returned to his incarceration. Thereafter, the patient developed complications which he contended led to the development of a heart condition requiring a pacemaker. Plaintiff contended that as a result, he was rendered disabled and unable to work. He sought damages in excess of $1,000,000. In his Complaint, the Plaintiff alleged that the surgeon was negligent in discharging the patient from the hospital too early and allowing him to resume his prior activities. The Plaintiff filed suit more than two years after the anniversary date of the appendectomy and without the requisite medical malpractice affidavit. In addition to the medical malpractice claim, the Plaintiff pursued a claim for a constitutional violation under Section 1983. McGrew and Ruder filed a Motion to Dismiss arguing that the statute of limitations expired prior to Plaintiff’s filing, that the Plaintiff’s claims were further barred by failing to file an expert affidavit, and that the section 1983 claims were barred due to Plaintiff’s failure to plead sufficient facts necessary to support such a claim. The Trial Court granted the surgeon’s Motion to Dismiss and the Plaintiff did not pursue an appeal.

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.

Pete Werdesheim and Billy Newcomb obtained partial summary judgment in a legal malpractice and fraud case in the Superior Court of Sumter County, despite the judge’s comment that “this case involves the most bizarre and outrageous facts concerning a lawyer’s conduct that this court has ever heard or could possibly have imagined.” The grant of partial summary judgment eliminated over half of Plaintiffs’ claimed damages. A mediation held before the trial court ruled on the motion failed. After the ruling, however, the case settled for approximately 10% of the Plaintiffs’ last demand at mediation.

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.

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.

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.

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 affirmed by the Georgia Court of Appeals.

Dave Root obtained summary judgment in his 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 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 denial of a petition for writ of certiorari from the Supreme Court after the Court of Appeals had affirmed the grant of summary judgment granted in favor of 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 the 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, agreeing that the Plaintiff's claims were an improper collateral attack on the prior judgment. The Supreme Court's denial of the Plaintiff's petition for writ of certiorari marks the end of the Plaintiff's appeals and brings this case to a close in the client's favor.

Mike Ethridge 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'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 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 represented the subcontractor who allegedly installed the ladder in violation of applicable standards. He was able to secure a dismissal after establishing that the ladder was installed by someone other than his 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.

Bill Jones and Megan Boyd had their motion to dismiss granted on August 26, 2011, in the Northern District of Georgia. Plaintiff was a high profile celebrity who maintained that an out-of-state law firm failed to ensure clear title as part of a multi-million dollar mortgage transaction related to his personal residence. Bill and Megan filed a motion to dismiss contending that their law firm client was not subject to personal jurisdiction in Georgia and owed no duty to the Plaintiff because the law firm had represented the lender during the transaction. The trial court agreed and granted the motion to dismiss.

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.

Mandi Dudgeon recently prevailed on a Motion to Dismiss in a state court legal malpractice action. Plaintiff alleged that his attorney had failed to adequately represent him in a PCR matter. The Court dismissed the action with prejudice on grounds the Plaintiff had failed to present necessary arguments on the alleged malpractice or a supporting expert affidavit.

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 Paton 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.

David Overstreet and Mandi Dudgeon obtained a dismissal with prejudice of a local estate attorney in a legal malpractice action. The Plaintiff in the case alleged the attorney had failed to protect a large estate. The Court held that the Plaintiffs did not have the requisite standing to bring the action.

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 trial court granted Defendant's Motion and the Court of Appeals affirmed.

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., 289 Ga. 57, 709 S.E.2d 227 (2011).

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.

Bill Jones obtained dismissal for his civil engineering client in a wrongful death case in Douglas County, Georgia. The Plaintiffs were the parents of the deceased who was killed when the car she was riding in was struck at an intersection. Plaintiffs asserted a claim for professional negligence against the civil engineering firm. The motion to dismiss was based upon Plaintiffs' failure to comply with Georgia's expert affidavit requirement. After Bill filed the motion, Plaintiffs dismissed their claims against the engineering firm.

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.

Greg Wheeler and Brent Meyer filed a Motion for Summary Judgment on claims brought by a developer alleging it was a third-party beneficiary of a contract agreement between an architect and civil engineering/surveying firm. The court granted the motion for summary judgment after Greg and Brent successfully argued that the developer was not an intended beneficiary of the contract at issue and the developer presented no evidence of harm by the alleged breach by the civil engineering and surveying firm.

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.

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.

Greg Wheeler and Brent Meyer successfully represented a civil engineering firm in a week-long arbitration. The owner of a construction project asserted a breach of contract and professional negligence claim against a civil engineering/surveying client in relation to a change order totaling nearly one million dollars. The dispute went through the arbitration process and resulted in a week-long arbitration hearing. The arbitrator awarded the owner a mere percentage of the alleged damages claimed and awarded the civil engineering firm its unpaid fees plus interest.

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 was appealed and upheld.

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.

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.

Mandi Dudgeon successfully argued a Motion to Dismiss an architectural firm in a construction defect case where the Plaintiffs alleged the firm had provided deficient designs. The Court granted the Motion to Dismiss on the grounds the Plaintiffs failed to provide the requisite supporting expert opinion in support of the professional negligence claim as well as other causes of action.

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.

Greg Wheeler and Brent Meyer successfully obtained a complete dismissal for an engineering firm client for a case in which the plaintiffs, injured motorists and the estate of a deceased motorist, asserted professional malpractice and wrongful death claims against the client. Wheeler and Meyer effectively used the 2005 Georgia Tort Reform Act to argue that the plaintiffs' expert's opinions should be excluded and the engineering firm was entitled to summary judgment. The trial court agreed and granted the motion to exclude the plaintiffs' expert's testimony and the Motion for Summary Judgment, resulting in a complete dismissal of the engineering firm client from the lawsuit. However, the Georgia Court of Appeals reversed the trial court's rulings on these two motions. The case reached the Georgia Supreme Court, and the trial court's order stating that the expert's opinions were inadmissible were reaffirmed, thus reversing the Court of Appeals' opinions. The Georgia Supreme Court ruled in favor of the defendant because it found the plaintiffs' expert's opinions to be inadmissible due to the fact that these opinions could not be validated against accepted standards, tested or reviewed. The Georgia Supreme Court remanded the case on the issue of whether a claim for ordinary negligence still existed. The Georgia Court of Appeals determined that one did not and all claims against the engineering firm were dismissed.

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.

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.

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.

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 was appealed, but the appeal was dismissed and summary judgment stood.