Considine v. Murphy, 297 Ga. 164

Background

In 2008 Considine sued her former business partner Affatato over control and assets of Model Master; the court entered a Consent Order appointing a receiver to preserve the company pending litigation.
The Consent Order and subsequent engagement agreement appointed George W. Murphy and Murphy & McInvale, P.C. (M&M) as court receivers and limited receiver liability except for gross negligence or willful misconduct as determined by a court.
While the Affatato case remained pending, Considine filed separate suits (2010, 2011) in Cherokee County against Murphy and M&M alleging gross negligence, breach of fiduciary duty, breach of contract, and related claims — without first obtaining leave from the appointing court.
The receivers moved to dismiss under OCGA § 9-11-12(b)(1) for lack of subject-matter jurisdiction based on the Barton doctrine (prior leave required) and asserted immunity defenses; the trial court dismissed, the Court of Appeals affirmed on immunity grounds, and Georgia Supreme Court granted certiorari.
The Georgia Supreme Court held the case should have been dismissed for lack of jurisdiction because Considine never obtained prior leave from the appointing court to sue the receivers and the Consent Order did not supply pre‑leave to bring separate suits.
Because the Court resolved the case on the prior‑leave jurisdictional ground, it vacated the Court of Appeals’ analysis of receivers’ immunity and did not decide whether any immunity would have applied had leave been properly granted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff could sue court‑appointed receivers in a separate action without prior leave of the appointing court	Considine argued the 2008 Consent Order (and incorporated agreement) effectively gave advance leave to sue the eventual receivers in separate litigation	Receivers argued Georgia’s long‑standing Barton doctrine requires prior leave of the appointing court and no such leave was sought	Held: No. Prior leave from the appointing court was required and was not obtained; dismissal for lack of jurisdiction was proper
Whether the Consent Order’s liability clause constituted pre‑authorization to file separate suits against receivers	Considine argued the clause limiting receiver liability (except for gross negligence or willful misconduct) authorized later suits to adjudicate such claims	Receivers argued the clause addressed available remedies but did not waive the jurisdictional prior‑leave requirement	Held: The clause did not supply leave to file separate actions; it did not negate the Barton rule
Whether the Barton doctrine applies to suits filed in the same court that appointed the receiver	Considine implied a separate action in the same forum should be permitted without additional leave	Receivers relied on precedent holding the prior‑leave rule is jurisdictional even for suits in the same court	Held: Barton doctrine remains jurisdictional in Georgia and applies even to separate suits filed in the same court
Whether the Court needed to resolve immunity questions (judicial, constitutional, GTCA)	Considine sought to preserve challenges to receivers’ immunity	Receivers maintained immunity defenses would bar the claims if leave had been granted	Held: Court declined to decide immunity because dismissal on prior‑leave jurisdictional ground was dispositive; Court of Appeals’ immunity discussion vacated

Key Cases Cited

DeGraffenried v. Brunswick & Albany R.R. Co., 57 Ga. 22 (1876) (early Georgia recognition that receivers cannot be sued without leave of appointing court)
Barton v. Barbour, 104 U.S. 126 (1881) (articulating the general rule that leave of the appointing court is required before suing a receiver)
McNulta v. Lochridge, 141 U.S. 327 (1891) (reiterating the prior‑leave principle for receivers)
Bugg v. Consol. Grocery Co., 155 Ga. 550 (1923) (confirming Georgia’s longstanding rule that receivers are not subject to suits absent leave)
WMW, Inc. v. Am. Honda Motor Co., 291 Ga. 683 (2012) (affirmance on alternate/independent ground — right‑for‑any‑reason doctrine)