Considine v. MurphyAnnotate this Case
The Georgia Supreme Court granted certiorari to review the Court of Appeals’ decision affirming the dismissal of Cecily Considine’s lawsuit against the receivers appointed in her separate lawsuit against her former business partner, Michael Affatato, on the ground that the receivers had official immunity. She alleged conversion, unjust enrichment, fraud and other claims over a dispute over the right to control the assets of "Model Master," a company Considine and Affatato created. The trial court appointed a receiver to preserve the company's property during the pendency of the litigation. Considine and Affatato executed a letter agreement with certified public accountant George Murphy and his firm, Murphy & McInvale, PC (M&M) as the court-appointed receiver. While the lawsuit against Affatato was pending, Considine filed suit against Murphy and M&M, alleging gross negligence and breach of fiduciary duty based on their alleged mismanagement of the receivership. The receivers moved to dismiss, asserting that the court lacked jurisdiction based on their official immunity as Considine's failure to obtain leave of the court in the Affatato matter prior to filing a lawsuit against Murphy and M&M. The trial court held a hearing, but Considine voluntarily dismissed her suit against the receivers before the trial court issued an order. Again without seeking prior approval, Considine filed the underlying suit to this appeal against the receivers, raising several claims including breach of contract, breach of fiduciary duty, gross negligence, and willful and wanton misconduct. The receivers again moved to dismiss. The trial court granted the receivers' motion and dismissed Considine's suit. The Court of Appeals reversed on grounds that the trial court ruled on the motion to dismiss less than 30 days after it was filed, depriving Considine proper notice or opportunity to be heard. Furthermore, the appellate court affirmed the dismissal based on official immunity. After review, the Supreme Court concluded that this lawsuit against the receivers should instead have been dismissed on the ground that Considine failed to obtain leave from the trial court in her lawsuit against Affatato before filing a separate lawsuit against the receivers appointed in that case. The Court affirmed the Court of Appeals’ judgment on this ground, and therefore vacate the court’s discussion of immunity.