Michelle Buttacavoli V Owen Gleaton Egan Jones Sweeney Llp

Michelle Buttacavoli filed suit against law firm Owen, Gleaton, Egan, Jones & Sweeney LLP and attorney Amy J. Kolczak for alleged violations during an underlying medical malpractice lawsuit that she settled. During the prior Bartow County litigation, Kolczak privately met with expert witness Dr. Webb before his deposition, violating a protective order. The trial court sanctioned Kolczak by striking the non-hospital defendants' answer and entering default judgment. Two years after settling with the non-hospital defendants for $2,000,000, Buttacavoli filed this Fulton County suit alleging fraud, conspiracy, invasion of privacy, and RICO violations based on the same conduct. The trial court granted summary judgment, finding this was a collateral attack on the prior settlement, and the Court of Appeals affirmed.

The court addressed whether Buttacavoli's current lawsuit against Owen Gleaton law firm and attorney Amy Kolczak constitutes an unauthorized collateral attack on the prior Bartow County litigation settlement. The court held that the present litigation is a collateral attack because all claims seek to increase the settlement amount received for injuries and are based on allegations known at the time of settlement. The court affirmed summary judgment in favor of the defendants, ruling that Georgia does not allow collateral attacks on judgments that are not void on their face.

The Court of Appeals of Georgia affirmed the trial court's grant of summary judgment to Owen Gleaton, Egan, Jones & Sweeney LLP and attorney Amy J. Kolczak. The court held that Buttacavoli's current litigation constitutes an unauthorized collateral attack on the settlement in the prior Bartow County medical malpractice litigation. Under Georgia law, alleged perjury in a prior case does not render the judgment void on its face, so such claims must be addressed through a direct attack on the prior judgment rather than a new lawsuit. Because Buttacavoli's claims sought to increase the settlement amount based on the same underlying facts known at the time of settlement, the present litigation was properly dismissed as a collateral attack. The court did not address Buttacavoli's remaining claims of fraud, deceit, conspiracy to defraud, invasion of privacy, HIPAA violations, and RICO claims.

The trial court in Bartow County granted sanctions against Amy J. Kolczak for willfully violating the protective order by meeting privately with expert witness Dr. Gilbert Webb before his deposition. The court struck the answer of the non-hospital defendants and entered a default judgment against them, allowing them to participate at trial on damages only while barring them from contesting liability issues. The Court of Appeals affirmed the trial court's grant of summary judgment to Owen Gleaton and Kolczak in the subsequent appeal.

Georgia law prohibits collateral attacks on prior judgments that are not void on their face. An action for damages based on alleged perjury is in the nature of a collateral attack on the previous judgment. Where a judgment has allegedly been infected by perjury, the remedy is a direct attack upon that judgment in the trial court where the prior suit was litigated, not a new action against the other party or counsel. The present litigation constitutes an unauthorized collateral attack on the settlement in the Bartow County litigation because all claims are an effort to increase the amount received for injuries in the settlement.