Ashburn Health Care Center, Inc. v. Poole - Georgia Court of Appeals rules over agency relationships arising from durable power of attorney and spousal relationship

Posted: June 20th, 2007 by Gaslowitz Frankel LLC

In Ashburn Health Care Center, Inc. v. Poole,1 Plaintiff, acting in his capacity as the executor of his mother’s estate, sued a nursing home alleging wrongful death. The nursing home moved to compel the executor to arbitrate, citing an agreement to arbitrate in its contract with the decedent. The contract in question was signed, not by the decedent but by her husband, in the presence of Plaintiff, as part of decedent’s admissions paperwork. Plaintiff had witnessed his father signing the admission contract but had not disclosed to the nursing home that he had a general durable power of attorney for his mother.The Court found that Plaintiff could not be compelled to arbitrate based upon his mother’s admissions agreement. First, the nursing home could not presume that decedent’s husband was her agent based upon the marital relationship alone and accordingly, decedent could not have been charged with the agreement to arbitrate on those grounds. Second, the nursing home was not aware at the time that decedent’s husband signed the admissions contract that Plaintiff had a general power of attorney for decedent and, accordingly, Plaintiff himself could not be charged with the agreement on those grounds.“Although apparent authority may give rise to an agency relationship, such authority must be based on statements or conduct of the alleged principal that reasonably cause a third person to believe that the principal consents to have the act done on his behalf by the purported agent.” In this case, all of the action cited by the nursing home indicating an agency relationship had been taken by decedent’s husband and son, not decedent herself. Accordingly, neither decedent, nor her estate could be charged with the agreement to arbitrate contained in the admissions contract.

1 Ashburn Health Care Center, Inc. v. Poole __ Ga. App. __, __ S.E.2d __, 2007 WL 1764217 (June 20, 2007).

Related News   Arbitration, Civil Appeals, Mediation and Arbitration, Nursing Home Neglect

Booker v. Booker - Georgia Court of Appeals confirms mother lacked standing to appeal award of year’s support

Posted: June 20th, 2007 by LeAnne M. Gilbert

In Booker v. Booker 1, the Georgia Court of Appeals denied the appeal of an heir who failed to object to a petition for year’s support in the probate court. The petition was granted by the probate court without objection.At the time of decedent’s death, a divorce action was pending in which the surviving spouse had executed a settlement agreement wherein she released any interest in decedent’s estate. Decedent passed away before a final judgment was entered in the divorce action and consequently, the divorce action was dismissed.Under normal circumstances the probate court would consider the waiver in the divorce settlement agreement in assessing the surviving spouse’s need for year’s support 2. In this case, however, appellant, the decedent’s mother, failed to timely object to the application for year’s support. Decedent’s mother therefore lacked standing to appeal the award of year’s support and, accordingly to raise the issue of the settlement agreement on appeal to the Superior Court.

1 Booker v. Booker, File No. A07A0110, __ S.E.2d __ , 2007 WL 1761173 (June 20, 2007)
2 Hall v. First Nat’l Bank of Atlanta, 89 Ga. App. 853(2), 81 S.E.2d 522 (1954)

Related News   Civil Appeals, Intestate, Probate and Estate Disputes, Will and Estate Disputes, Year's Support

Appeal on Time, or Don’t Appeal at All, U.S. Supreme Court Advises • Law.com

Posted: June 19th, 2007 by Gaslowitz Frankel LLC

From Law.com:

The U.S. Supreme Court’s 5-4 ruling last week in Bowles v. Russell contains an important reminder for lawyers who handle appeals before the intermediate federal appellate courts: If an appeal is not filed within the time provided by federal statute, the appeal cannot be heard and decided on the merits.

Here is the full article (a subscription may be required): Appeal on Time, or Don’t Appeal at All, U.S. Supreme Court Advises

Related News   Civil Appeals

State Farm settles Katrina lawsuit on day of trial - Daily Report

Posted: June 5th, 2007 by Gaslowitz Frankel LLC

From Daily Report:

State Farm settles Katrina lawsuit on day of trial for an undisclosed amount. The plaintiff, Michael McCoy, was seeking $189,402, plus $5 million in punitive damages for damage done to his home during Hurricane Katrina. “State Farm says flood, which the company doesn’t cover, reduced McCoy’s house to a slab.”

Related News   Business Litigation, Insurance Coverage Disputes

Birkhead sues attorney in Anna Nicole Smith baby fight - CNN.com

Posted: June 5th, 2007 by Gaslowitz Frankel LLC

CNN.com reports that last Friday, Larry Birkhead sued his former attorney Debra Opri for,

“depositing at least $865,000 owed to him for an unnamed project into an attorney client trust account against his wishes.”

Opri’s original suit claims that Birkhead has failed to pay his legal fees for her representation of him during his paternity suit.

Related News   Contract Disputes, Will and Estate Disputes

Federal court dismisses Fannie Mae shareholders lawsuit

Posted: June 1st, 2007 by Gaslowitz Frankel LLC

JURIST reports that the US District Court for the District of Colombia has dismissed a lawsuit brought against home lender Fannie Mae, by its shareholders. The shareholders sued to have former board members and executives return bonuses and severance packages awarded during Fannie Mae’s 2004 accounting scandal. The judge ruled that the shareholders did not have standing to bring a shareholder lawsuit on Fannie Mae’s behalf, and in fact should have first petitioned Fannie Mae to sue those former board members and executives.

For the full story: Federal court dismisses Fannie Mae shareholders lawsuit.

Related News   Business Litigation

✩ Adam R. Gaslowitz begins term as Chairman of the Fiduciary Law Section of the Georgia Bar

Posted: June 1st, 2007 by Gaslowitz Frankel LLC

Today, Adam R. Gaslowitz begins his one-year term today as Chairman of the Fiduciary Law Section of the Georgia Bar. The Section sponsors seminars throughout the year to improve the skills of attorneys practicing in the field of fiduciary law. Additionally, the Section monitors and drafts legislation in the fiduciary area, and works with the probate judges to improve the administration of legal justice.

Related News   Adam R. Gaslowitz, Firm News