Considine v. Murphy
320 Ga. App. 316
| Ga. Ct. App. | 2013Background
- Considine sued Murphy for malpractice while he acted as receiver of a business partially owned by Considine.
- Murphy moved to dismiss arguing official immunity as a court-appointed receiver and lack of subject matter jurisdiction.
- The trial court granted the motion to dismiss, finding official immunity applied.
- The dismissal order was filed six days after the ruling, and Considine alleged due process was violated by lack of notice and opportunity to respond.
- The appellate court held the trial court erred by ruling without allowing Considine to respond and reversed remanding for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process in ruling on motion to dismiss | Considine | Murphy | Violation; require notice and opportunity to be heard |
| Proper consideration of official-immunity defense | Considine | Murphy | Immunity ruling insufficient without notice and response; remand |
Key Cases Cited
- Cameron v. Lang, 274 Ga. 122 (2001) (recognizes official-immunity framework for court-appointed receivers)
- Kidd v. Unger, 207 Ga. App. 109 (1993) (court may rule on motions before 30 days if based on pleadings; requires notice when not solely pleadings)
- Dearing v. State of Ga., 243 Ga. App. 198 (2000) (trial court may rule before 30 days but must provide notice and hearing)
- Anderson v. Flake, 267 Ga. 498 (1997) (pleading standards; evidence may sustain relief to avoid dismissal)
- Bonner v. Peterson, 301 Ga. App. 443 (2009) (de novo review of dismissal decisions; plaintiff-friendly construction)