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Considine v. Murphy

Dismissal of a lawsuit against the receivers appointed in a separate lawsuit was proper because the plaintiff failed to obtain leave from the trial court in the separate lawsuit before filing the lawsuit against the receivers.

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We granted certiorari to review the Court of Appeals’ decision affirming the dismissal of Cecily Considine’s lawsuit against the receivers appointed in her separate lawsuit against Michael Affatato on the ground that the receivers have official immunity. We conclude that this lawsuit against the receivers should instead have been dismissed on the ground that Considine failed to obtain leave from the trial court in her lawsuit against Affatato before filing a separate lawsuit against the receivers appointed in that case. We affirm the Court of Appeals’ judgment on this ground, and we therefore vacate the court’s discussion of immunity.

1. In April 2008, Cecily Considine filed a lawsuit in the Superior Court of Cherokee County against her former business partner, Michael Affatato. She alleged conversion, unjust enrichment, fraud, and multiple other claims arising out of a bitter dispute over the right to manage and control the assets of a company known as Model Master, which Considine describes as a business “with international presence in engineering and 3D modeling technology.” On September 3, 2008, the court entered a Consent Order finding that “the appointment of a receiver pursuant to OCGA §§ 9-8-1 through 9-8-14 is necessary to preserve the property of Model Master during the pendency of this litigation.” The Consent Order instructed Considine and Affatato to identify a mutually agreeable receiver within 14 days, listed the “limited purposes” of the receiver’s appointment, and required the receiver to make a final accounting to the court prior to discharge. The Consent Order concluded:

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