Keen insight to shape the law

Friendship Enterprises, Inc., d/b/a Elevation Chophouse v. Hasty, (Ga. Ct. App.).  The Georgia Court of Appeals recently granted a petition for interlocutory review filed by Atlanta Partners Wayne Melnick, Michael Freed, and Wes Jackson, of the trial court’s denial of a motion for summary judgment.  The appeal involves important issues bearing on respondeat superior liability and its interplay with the premises liability standard when an employee’s allegedly tortious actions were outside the course and scope of his employment.

Deaton Holdings, Inc. v. Reid, Case No. A23A0005 (Ga. Ct. App.).  The Court of Appeals of Georgia recently granted a petition for interlocutory review filed by Atlanta Attorneys Wayne Melnick, Michael Freed, and Eric Retter in case presenting an issue of first impression.  That issue is whether the defendant in a single defendant tort case can require the joinder of other potentially responsible nonparties.  The appeal was necessitated by the Georgia Supreme Court’s holding in Alston & Bird v. Hatcher, that nonparty apportionment of fault is unavailable in single-defendant cases.  As a result, appellants argue, potentially responsible nonparties are necessary and indispensable under Georgia law, and must be joined as defendants.  The Court of Appeals will hear oral argument in December 2022.

Paul Piantino and Christopher Donnelly obtained a reversal and remand resulting from their Appeal of a Final Judgment entered by a Bergen County Trial Court. The case arose out of an underlying action in the United States District Court for the Northern District of West Virginia. The Underlying Plaintiff alleged that the Client violated the Telephone Consumer Protection Act and the West Virginia Consumer Credit and Protection Act due to calls that were allegedly made to Plaintiff, who was on the National Do Not Call Registry.

Initially, the Underlying Plaintiff and the Client communicated with each other to explore settlement. However, when early settlement failed, the Underlying Plaintiff attempted to serve the Client at a different, defunct address, and all future communications and documents from the West Virginia District Court and the Underlying Plaintiff were sent to that old address. As a result, the Underlying Plaintiff was able to obtain an Order for Summary Judgment and eventually a judgment against the, at the time, pro se Client in the West Virginia District Court.

The Underlying Plaintiff then assigned the judgment to a Judgment Creditor, who recorded the foreign judgment in New Jersey where Client resided. Upon notice of this foreign judgment, the Client retained the services of FMG and we filed a motion in New Jersey state court to vacate the foreign judgment arguing that the judgment was not entitled to full faith and credit in New Jersey due to numerous procedural due process issues. The Trial Court denied the motion to vacate. A motion for reconsideration was also filed but denied shortly thereafter.

On Appeal, Mr. Piantino and Mr. Donnelly argued that the Trial Court erred in its denial of the Client’s motions as service of process in the West Virginia District Court action was insufficient and that their, at the time, pro se Client was denied adequate notice and an opportunity to be heard. Specifically, we argued that the Client was denied an opportunity to be heard because the Underlying Plaintiff and the West Virginia District Court sent all litigation communications to the Client’s defunct address. Furthermore, The West Virginia District Court issued a Roseboro Notice to the Client which was returned as undeliverable. Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), is a Fourth Circuit Opinion which requires that, before entering summary judgment against a pro se party, the Court must provide the party with fair notice of the requirements of the summary judgment rule. This was evidence that the Client was not informed that they were facing summary judgment, as is the requirement in the West Virginia jurisdiction for all pro se litigants. Thus, the Client was denied adequate notice, an opportunity to be heard, and the judgment was not entitled to full faith and credit in New Jersey. The Appellate Division in New Jersey vacated the Trial Court’s t decision and remanded for further proceedings, holding that the Trial Court failed to sufficiently address our Client’s due process arguments.

Upon receiving the Appellate Division opinion, the Judgment Creditor filed a Warrant to Satisfy Judgment, thereby relieving the Client of all liability under the judgment in both New Jersey and West Virginia.

Sacramento, CA.  Dean Getz brought a California public records act case in the County of El Dorado in which he sought production of 42,000 e-mails between the County and a land developer. Getz was represented by Freeman Mathis & Gary’s Sacramento partner, Greg Fayard. The trial court denied Getz’s request as “overbroad and unduly burdensome.” Getz petitioned to California’s Third Appellate District. On November 17, 2021, after oral argument, the Court of Appeal granted Getz’s petition, ruling that since the 42,000 were already identified and indexed and the County failed to show any of the e-mails were exempt from disclosure or contained privileged information, all the e-mails and any attachments must be produced.  The Court opined: “An agency cannot resist disclosure based on the burden stemming from actions needed to assuage an abstract fear of improvident disclosure, a fear that could be avoided by simply setting privileged documents apart. . . . California has declared, in terms as clear as the English language permits, that government business is the people’s business whether conducted in proceedings by deliberative bodies (Gov. Code, § 54950 et seq.) or discussed in records of any form, and must be accessible to the public, though access can be regulated to reduce the administrative burden imposed on government agencies and in rare instances can be denied to prevent the disclosure of records exempt from disclosure.”

The Court further ruled that the County shall pay Getz’s costs and reasonable attorney fees.

On November 12, 2021, Kentucky’s Court of Appeals issued a decision affirming the grant of summary judgment in favor of FMG client Carey Baldwin. In Leonard Crabtree v. Carey Baldwin, et al., the plaintiff claimed Mr. Baldwin negligently caused a motor vehicle accident in Somerset, Kentucky. Liability for the accident was vigorously disputed. The trial court’s dismissal of the plaintiff’s claims against Mr. Baldwin was upheld on appeal, with the Court of Appeals finding that the plaintiff had “not produced evidence that Officer Baldwin’s actions were a substantial factor in causing this accident.”

Jurisdiction: Pulaski Circuit Court (appealed to the Kentucky Court of Appeals)