Considine v. Murphy
327 Ga. App. 110
Ga. Ct. App.2014Background
- Considine sued Murphy for malpractice while Murphy served as receiver for Model Master, Inc.
- Consent order (Sept. 3, 2008) directed appointment of a receiver within 14 days to oversee funds and disbursements; if no agreement, court would appoint from proposed receivers.
- On Oct. 6, 2008, Murphy was chosen as the court-appointed receiver for Model Master; on Sept. 2, 2009, the court extended Murphy’s powers to all powers allowed a receiver under Georgia law.
- Sept. 29, 2010, Considine filed suit alleging damages for gross negligence and breach of fiduciary duty; Murphy moved to dismiss claiming official immunity.
- Considine voluntarily dismissed after a hearing, refiled on Oct. 13, 2011 adding counts for breach of contract, gross negligence, wilful and wanton misconduct, and accounting; trial court granted dismissal on immunity grounds after remand.
- Considine appeals and the appellate court affirms dismissal, holding Murphy acted under official immunity as a court-appointed receiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Murphy was a court-appointed receiver entitled to official immunity. | Considine argues Murphy was not court-appointed, therefore no immunity. | Murphy, via consent order and letter of engagement, was the court-appointed receiver. | Murphy was court-appointed; immunity applies. |
| Whether a corporate receiver can be entitled to official immunity under OCGA 9-8-1 et seq. | Considine asserts corporate receivers are not covered by official immunity. | Consent order and engagement letter show appointment; waiver validates immunity. | Court treated Murphy & Mclnvale as receiver; waiver and appointment support immunity. |
| Whether Considine proved actual malice to defeat official immunity. | Evidence shows gross negligence and malfeasance; implies malice. | Malice not proven; duties were discretionary and performed without malice. | No evidence of actual malice; immunity applies and claims dismissed. |
Key Cases Cited
- Ga. Rehabilitation Center v. Newnan Hosp., 283 Ga. 335, 336 (Ga. 2008) (receivership discretionary decisions reviewed for abuse of discretion)
- Chrysler Ins. Co. v. Dorminey, 271 Ga. 555, 556 (Ga. 1999) (appointment of receiver and scope of powers)
- Payne v. Jones & Kolb, 190 Ga. App. 62, 64 (Ga. App. 1989) (consent judgments bind parties and operate as waiver of error)
- Allen v. Allen, 198 Ga. 267 (Ga. 1944) (waiver of appeal after consent judgment)
- Harvey v. Nichols, 260 Ga. App. 187, 191 (Ga. App. 2003) (distinguishes ministerial vs discretionary acts in official immunity)
- Daley v. Clark, 282 Ga. App. 235, 247 (Ga. App. 2006) (actual malice required for immunity defeat)
- Adams v. Hazelwood, 271 Ga. 414, 420 (Ga. 1999) (official immunity requires absence of malice for discretionary acts)
- Cameron v. Lang, 274 Ga. 122, 123 (Ga. 2001) (discretionary acts protected by official immunity)