Ga. SC vacates injunction against Miss. law firm’s ad against nursing home

By Jessica M. Karmasek | May 13, 2015

ATLANTA (Legal Newsline) - The Georgia Supreme Court, in a ruling Monday, vacated an injunction against a Mississippi law firm’s full-page newspaper advertisement aimed at a Toccoa area nursing home.


In April 2014, Hattiesburg-based McHugh Fuller Law Group, which focuses its practice on nursing home abuse and neglect, ran a full-page ad in a Northeast Georgia local newspaper, The Toccoa Record.


The firm’s ad said Heritage Healthcare of Toccoa, a Stephens County nursing home owned by PruittHealth, had been cited by the government for “deficiencies” in the care of its residents. The ad invited those suspecting abuse or neglect of a loved one at the facility to call the firm.


A day later, PruittHealth filed a complaint for temporary and permanent injunctive relief under the state’s Uniform Deceptive Trade Practices Act and petitioned for a temporary restraining order.

The same day, the Stephens County Superior Court entered a TRO enjoining McHugh Fuller from publishing, in any newspaper or other media, ads regarding PruittHealth using the language in the April 17, 2014 ad.


PruittHealth argued the government citation referenced in the law firm’s ad came from a 2012 survey report; that the deficiencies had been resolved; and that a more recent report had found no such deficiencies.


McHugh Fuller, which has a history of pursuing litigation against nursing home facilities, presented testimony to justify the specific language used in the ad -- even having an Emory University law school ethics professor testify that the ad was neither false nor deceptive.


However, the trial court concluded the ad was deceptive and violated the UDTPA. The court enjoined the law firm from publishing the ad and required the firm to remove it at its own expense.


McHugh Fuller appealed. In its notice, the firm requested the clerk “omit nothing from the record.”


PruittHealth submitted its own designation of the record, asking the court to include only those items submitted through and including June 2, 2014, the date the injunction was entered -- excluding the verified answer, motions and supporting exhibits McHugh Fuller had filed with the trial court after that date.


After a hearing, the trial court held that the appellate record would not include materials submitted after June 2 because such items were not “before the court for consideration at the time of the trial… or submitted prior to the entry of the final order.”


McHugh Fuller filed a second notice of appeal as to that ruling.


The Georgia Supreme Court, which consolidated both appeals, ruled that the trial court erred in granting the injunctive relief against the law firm.


“Here, while McHugh Fuller clearly had notice of the interlocutory hearing, it had no notice that the trial court intended at that hearing to consider the merits of permanent injunctive relief,” Justice Carol Hunstein wrote for the court.


The state’s high court also concluded that the trial court also erred in deciding that the record in the firm’s initial appeal should not include filings submitted after the injunction was granted.


“Our Appellate Practice Act requires the appellant to specify in the notice of appeal ‘those portions of the record to be omitted from the record on appeal.’ Thus, it is the appellant that is charged with the duty to designate the appellate record,” Hunstein wrote in the 11-page opinion.


“Once such designation has been made, the appellee is permitted to designate for inclusion any materials the appellant has requested be omitted.”


Hunstein explained that if there is a dispute over the contents of the appellate record, the trial court is required to hold a hearing to resolve the dispute “so as to make the record conform to the truth.”


The high court remanded the case to the trial court for further proceedings.


Earlier this year, an Ohio federal judge remanded a lawsuit filed by a Portsmouth-based nursing home facility against McHugh Fuller back to a state court.


Attorneys for Heartland of Portsmouth OH LLC sued the law firm in January, claiming it is “encouraging” tort litigation against it.


Like Heritage Healthcare, attorneys for Heartland of Portsmouth have asked for a temporary restraining order and injunctive relief against McHugh Fuller.


The firm also has sparked controversy in West Virginia after ABC News reported in December that partner Michael Fuller purchased a Learjet from the Charleston-based Segal Law Firm for more than $1 million in 2011. The firm is owned by West Virginia Supreme Court Justice Robin Davis’ husband, Scott Segal.


Last year, Davis wrote the majority opinion in a case resulting in an approximate $40 million verdict against another nursing home facility operated by HCR Manorcare. The ruling upheld a jury verdict in favor of Fuller’s client.


From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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