ABRAHAM et al. v. BLACK.
A18A0701
In the Court of Appeals of Georgia
June 12, 2018
MCFADDEN, P. J., RAY and RICKMAN, JJ.
FIFTH DIVISION. NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
Following the death of 23-year-old Jonathan Black (“the decedent“), his sister and administratrix of his estate, Nicolette Black, filed suit against Hai Hong Trinh, M. D.; James S. Abraham, M. D.; Lily Lan-Nhu Huyen Pham, M. D.; Jennifer Pruitt, R. N.; Newton Medical Center; Newton Medical Group, LLC; Newton Medical Family Practice, LLC; Newton Medical Properties, LLC; Georgia Emergency Physicians, P. C.; Georgia Heart Specialists, LLC; John Does 1-5; and Jane Does 1-5 (collectively “the Defendants“) in state court for medical malpractice, wrongful death, and related claims. The Defendants filed a motion to dismiss Black‘s wrongful death claim or, alternatively, a motion for partial summary judgment of that claim alleging that Black lacked standing to bring a claim for wrongful death.1 The state court denied the motion. The Defendants filed a motion to vacate the court‘s order and transfer the case to the superior court, which was also denied. Thereafter, we granted the Defendants’ applications for interlocutory review
“Under
(1) Voluntary contract releasing the right to a third person; (2) Consent to the adoption of the child by a third person; (3) Failure to provide necessaries for the child or abandonment of the child;(4) Consent to the child‘s receiving the proceeds of his own labor, which consent shall be revocable at any time;(5) Consent to the marriage of the child, who thus assumes inconsistent responsibilities; (6) Cruel treatment of the child; (7) A superior court order terminating parental rights in an adoption proceeding in accordance with Chapter 8 of this title; or (8) A superior court order terminating parental rights of the legal father or the biological father who is not the legal father of the child in a petition for legitimation, a petition to establish paternity, a divorce proceeding, or a custody proceeding. . . .
Black‘s complaint alleged that the decedent‘s mother and father were deceased and that Black was his surviving sibling. During discovery, Black provided the Defendants with the decedent‘s birth certificate, which listed his father‘s name. In their motion to dismiss/motion for partial summary judgment, the Defendants asserted that once they obtained the decedent‘s father‘s name, they hired an investigator who found no evidence that the father was deceased. The Defendants argued that since the decedent‘s father was alive, he was the proper party under
Black filed a motion in response, alleging that the decedent‘s father lost his parental power pursuant to
The state court agreed with Black, stating that based on uncontroverted evidence the decedent‘s father lost his power to bring the wrongful death suit because he did not support or have a relationship with the decedent. Accordingly, the state court found that Black was the proper party to bring the claim and denied the Defendants’ motion to dismiss/motion for partial summary judgment.
The Defendants filed a motion to vacate the state court‘s order and transfer the case to the superior court. The Defendants argued, inter alia, that the finding that the decedent‘s father lost his parental power to bring the wrongful death suit was akin to the termination of his parental rights of an unwed father who failed to legitimate his child, of which the superior court had exclusive jurisdiction. See
Initially, we note that in their reply brief to this Court, the Defendants clarified that, “whether the [state] court correctly decided if [the decedent‘s father] abandoned the decedent is not the subject of this appeal.” Instead, the Defendants contend that the wrongful death suit should be dismissed because no court, state or superior, has the authority to allow the wrongful death action to be brought by anyone other than the decedent‘s father or, alternatively, that the case should be transferred to the superior court because the state court lacks jurisdiction to determine that the decedent‘s father lost his parental power to bring the suit. We disagree.
The state court did not terminate the decedent‘s father‘s parental rights.
The state court made a determination under the statutory framework of
Judgment affirmed. McFadden, P. J., concurs and Ray, J., concurs in judgment only.*
* “THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2(a).”
ABRAHAM, et al v. BLACK.
A18A0701
In the Court of Appeals of Georgia
RAY, Judge, concurring in judgment only.
As I do not agree with everything that is said in the majority‘s opinion, but do agree with the result, I join it in judgment only. As it relates to the parties before the court and the facts present in the record, I do believe that the trial court has reached an appropriate decision that the decedent‘s sister, who is the administratrix of his estate, can proceed with the wrongful death claim and that the Defendants should not be able to use as a defense that the right to initiate such claim would normally belong to the decedent‘s father. At the same time, I note that the decedent‘s father has apparently not been served with legal process in this action, actual or constructive. Thus, I do not believe these proceedings are binding on him should he ever resurface. Caution would suggest that he should be made a party to this action