FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 21, 2019
In the Court of Appeals of Georgia
A19A1408. GATTO et al. v. CITY OF STATESBORO et al.
A19A1409. ATLANTIC SPECIALTY INSURANCE COMPANY
v. GATTO et al.
BROWN, Judge.
Michael and Katherine Gatto, as personal representatives of the estate of their
son, Michael Joseph Gatto (“Michael”), and Michael Gatto, as administrator of the
estate of his son, sued the City of Statesboro (“the City”) and Sue Starling, the Clerk
of the City of Statesboro, in her individual capacity (collectively “the defendants”),
for their son’s personal injuries and his wrongful death following an altercation with
a bouncer at one of the four bars located in the University Plaza establishment in the
City. The City’s insurer, Atlantic Specialty Insurance Company, sought to intervene
in the action. The trial court granted summary judgment to the City and Starling on
grounds of proximate cause and sovereign immunity, and denied Atlantic’s motion to intervene. In Case No. A19A1408, the Gattos appeal the former ruling. In Case No.
A19A1409, Atlantic appeals the latter ruling. We have consolidated the appeals for
review. For the reasons that follow, in Case No. A19A1408, we affirm the grant of
summary judgment to the City, but reverse the grant of summary judgment to
Starling; and in Case No. A19A1409, we dismiss as moot the trial court’s denial of
the motion to intervene as to the City, but vacate the trial court’s denial of the motion
to intervene as to Starling, and remand the case with direction.
As the nonmovant on summary judgment, we construe the facts in favor of the
Gattos. City of Savannah v. Herrera, 343 Ga. App. 424, 425, n.4 (808 SE2d 416)
(2017). “However, [the Gattos] bear the burden to establish a waiver of sovereign
immunity.” Id. Our review is de novo. See Calloway v. City of Warner Robins, 336
Ga. App. 714 (783 SE2d 175) (2016). So construed, the record reflects that on the
evening of August 27, 2014, and early morning hours of August 28, 2014, eighteenyear-old Michael, an incoming freshman at Georgia Southern University, was at Rude
Rudy’s, a bar located in University Plaza, drinking with friends.1 In addition to Rude
1
Just one month before, Michael had been arrested in Athens-Clarke County for theft of services and underage possession/consumption of alcohol. On August 5, 2014, Michael entered into a pretrial intervention program agreement, forbidding him from consuming or possessing any alcoholic beverages for one year, or patronizing any establishment whose primary purpose was to serve alcohol.
2
Rudy’s, University Plaza was home to several other businesses that served alcohol,
including Retrievers, Rusty’s Tavern, and Rum Runners, and was within walking
distance of the campus of Georgia Southern University.2 Told by a bartender that
Michael was stealing money from the tip jar, Grant James Spencer (“Spencer”), a
bouncer at Rude Rudy’s, went to remove Michael from the bar. Spencer struck
Michael five times in the head/face, until he was limp and unconscious, and then
dropped him on the floor of the bar. After Spencer heard Michael’s head hit the floor
of the bar, he dragged him outside and left him. Michael was discovered by
emergency personnel and airlifted to a hospital in Savannah, where he died on the
afternoon of August 28, 2014. Spencer pled guilty to voluntary manslaughter, and
was sentenced to 20 years in prison.
The Gattos sued the City and Starling for negligence and maintenance of a
nuisance, essentially alleging that their son was beaten to death because the
2
There is considerable evidence in the record that all of these establishments admitted underage patrons and served alcohol to them; most of the establishments, including Rude Rudy’s, did not serve food. According to one underage patron, Rude Rudy’s was “the only place that [he] could get alcohol. That [was] why [he] was there[;] that is why everyone was there. . . .” There is also evidence that some of the bartenders and others serving alcohol at Rude Rudy’s were underage, and that bouncers who had been charged with DUI worked at the bar. There was also evidence that fights occurred often in the University Plaza, and that emergency vehicles and police officers — uniformed and undercover — were frequently present in the plaza.
3
defendants disregarded the numerous alcohol violations and other illegal activity
occurring at the University Plaza establishments, including Rude Rudy’s. In their
view, if the defendants had complied with and enforced the City’s ordinances related
to these violations, Rude Rudy’s would not have held an alcohol license in August
2014, and Michael would not have been beaten. In their third amended complaint, the
Gattos specifically alleged that: (1) Starling was negligent and breached her
ministerial duty to set due process hearings before the Mayor of Statesboro and the
City Council upon her receipt of notices of violations against the University Plaza
establishments;3 (2) the City is liable for the negligence of its employee Starling
arising out of this breach; (3) the City breached a duty of ordinary care by renewing
or allowing the renewal of the business and alcohol licenses of the University Plaza
establishments despite its knowledge of the numerous illegal and dangerous activities
occurring there; and (4) the defendants’ acts and omissions over the course of several
years in allowing the University Plaza establishments to remain in operation despite
knowledge of the repeated criminal activity, constituted a continuing nuisance that
“was injurious to the invitees to the premises, the citizens of the City . . . , and the
3
In their original complaint, the Gattos sued Starling in her individual and official capacity. Two months later they dismissed without prejudice the official capacity claim against her.
4
general public.” The Gattos also asserted a claim for damages pursuant to OCGA §
13-6-11. The defendants moved for summary judgment on all claims, asserting, inter
alia, that the City is entitled to sovereign immunity, that Starling is entitled to
qualified or official immunity, and that no act or omission of the defendants was the
proximate cause of Michael’s death. The trial court granted the motion on the ground
that (1) intervening criminal acts — Spencer’s criminal act and Michael’s violation
of the law (underage possession and consumption of alcohol and failure to comply
with his pretrial agreement) — broke the causal chain between the defendants’ breach
of any duties and Michael’s injuries and death, and (2) the claims against the City are
barred by the doctrine of sovereign immunity. In its ruling, the trial court rejected the
Gattos’ argument that the defendants waived sovereign immunity by the City’s
purchase of an insurance policy. As to Starling, the trial court ruled that the Gattos’
suit was in reality a claim against Starling in her official capacity and that she was
entitled to summary judgment on the ground of sovereign immunity. The trial court
denied the motion to intervene, ruling that Atlantic’s interest was “adequately
represented by existing parties.”
In Case No. A19A1408, the Gattos contend that the trial court erred in granting
the defendants’ motion for summary judgment. First, the Gattos argue that because
5
the City purchased liability insurance covering the Gattos’ claims, the General
Assembly has waived the City’s sovereign immunity. Second, the Gattos assert that
even if the General Assembly had not waived the City’s sovereign immunity, it would
not apply to the Gattos’ nuisance claim. Third, the Gattos contend that the public duty
doctrine does not apply to their negligence claim which involves “active negligence”
and does not depend on “‘police protection.’” Fourth, the Gattos argue that the City’s
maintenance of a nuisance at Rude Rudy’s and University Plaza proximately caused
Michael’s death. Lastly, the Gattos assert that because Starling breached her
ministerial duty to schedule due process hearings, she is liable in her individual
capacity. As part of this last assertion, the Gattos contend that the trial court erred in
granting summary judgment to Starling on the ground of sovereign immunity because
the Gattos previously dismissed their official capacity claim against her and the
defendants never moved for summary judgment on the ground that sovereign
immunity applied to Starling.
In Case No. A19A1409, Atlantic contends that it moved to intervene in this
lawsuit to respond to the Gattos’ arguments concerning insurance coverage and
judicial estoppel and to preserve its rights if the trial court denied the defendants’
motion for summary judgment. A ruling by this Court affirming the grant of summary
6
judgment would address Atlantic’s concerns. Thus, Atlantic contends that the only
reason to consider its appeal is if this Court reverses the order granting summary
judgment.
Case No. A19A1408
1. We first address the Gattos’ contention that sovereign immunity does not
apply to their nuisance claim. “Sovereign immunity . . . raises the issue of the trial
court’s subject matter jurisdiction to try the case.” (Citation and punctuation omitted.)
City of Albany v. Stanford, 347 Ga. App. 95, 97 (1) (815 SE2d 322) (2018) (physical
precedent only). As such, it “is a threshold issue that the trial court [is] required to
address before reaching the merits of any other argument.” Albertson v. City of Jesup,
312 Ga. App. 246, 248 (1) (718 SE2d 4) (2011). Under the Georgia Constitution,
municipalities are protected by sovereign immunity unless waived by the General
Assembly. Ga. Const. of 1983, Art. IX, Sec. II, Par. IX. See CSX Transp. v. City of
Garden City, 277 Ga. 248, 250 (1) (588 SE2d 688) (2003) (“any waiver of sovereign
immunity is a mere privilege, not a right, and the extension of that privilege is solely
a matter of legislative grace”) (citation omitted). This principle is reiterated in OCGA
§ 36-33-1, which pertinently provides that “it is the public policy of the State of
Georgia that there is no waiver of the sovereign immunity of municipal corporations
7
of the state and such municipal corporations shall be immune from liability for
damages.” OCGA § 36-33-1 (a). The statute, however, carves out two narrow
exceptions as follows: subsection (a) provides that “[a] municipal corporation shall
not waive its immunity by the purchase of liability insurance . . . unless the policy of
insurance covers an occurrence for which the defense of sovereign immunity is
available, and then only to the extent of the limits of such insurance policy.”
(Emphasis supplied.) OCGA § 36-33-1 (a). See also CSX Transp., 277 Ga. at 251 (2)
(“the legislature has provided that municipal sovereign immunity may be waived . .
. by the purchase of liability insurance”). And, subsection (b) provides that
“[m]unicipal corporations shall not be liable for failure to perform or for errors in
performing their legislative or judicial powers. For neglect to perform or improper or
unskillful performance of their ministerial duties, they shall be liable.”
The waiver enunciated in subsection (b) has been consistently “interpreted to
mean that municipal corporations are immune from liability for acts taken in
performance of a governmental function but may be liable for the negligent
performance of their ministerial duties.” (Citations omitted.) City of Atlanta v.
Mitcham, 296 Ga. 576, 577-578 (1) (769 SE2d 320) (2015). The difference between
these two functions has been explained as follows:
8
Governmental functions traditionally have been defined as those of a
purely public nature, intended for the benefit of the public at large,
without pretense of private gain to the municipality. The exemption
from liability for governmental functions is placed upon the ground that
the service is performed by the corporation in obedience to an act of the
legislature, is one in which the corporation has no particular interest and
from which it derives no special benefit in its corporate capacity.
Ministerial functions, in comparison, are recognized as those involving
the exercise of some private franchise, or some franchise conferred upon
the municipal corporation by law which it may exercise for the private
profit or convenience of the corporation or for the convenience of its
citizens alone, in which the general public has no interest.
(Citations, punctuation, and footnote omitted.) Id. at 578 (2). The Gattos contend that
under common law dating back over 100 years, a municipality may be liable for
damages it causes to a third party from the operation or maintenance of a nuisance,
irrespective of whether it is exercising a governmental or ministerial function. We
disagree.
As this Court explained in Stanford, the Supreme Court of Georgia, in a 1993
case, referred to a “nuisance exception” to sovereign immunity, declaring that
a municipality may be liable for damages caused from the operation or
maintenance of a nuisance, irrespective of whether it is exercising a
governmental or a ministerial function, because a municipal corporation
9
can not, under the guise of performing a governmental function, create
a nuisance dangerous to life and health or take or damage private
property for public purpose without just and adequate compensation
being first paid.
(Punctuation omitted.) 347 Ga. App. at 97 (1), citing City of Thomasville v. Shank,
263 Ga. 624 (437 SE2d 306) (1993). Over twenty years later, the Supreme Court of
Georgia clarified the language in Shank in the case of Ga. Dept. of Natural Resources
v. Center for a Sustainable Coast, 294 Ga. 593 (755 SE2d 184) (2014), explaining
that it is
rooted in the concept that the government may not take or damage
private property for public purposes without just and adequate
compensation. Thus, the “nuisance exception” recognized in Shank was
not an exception at all, but instead, a proper recognition that the
Constitution itself requires just compensation for takings and cannot,
therefore, be understood to afford immunity in such cases.
(Citations omitted.) Id. at 600 (2). See Stanford, 347 Ga. App. at 97 (1). See also City
of Atlanta v. Demita, 329 Ga. App. 33, 34 (1) (762 SE2d 436) (2014).
In facts very similar to those at issue here, this Court in a two-to-one decision
ruled in Stanford that the “nuisance exception” did not apply because the damage at
issue was injury to person or loss of life. 347 Ga. App. at 99 (1). Thus, the City of
10
Albany did not waive its sovereign immunity on this ground. Given this ruling and
our Supreme Court’s holding in Sustainable Coast, we conclude that sovereign
immunity applies to the Gattos’ nuisance claim.
2. We next address the Gattos’ contention that the City waived sovereign
immunity by its purchase of liability insurance. As laid out in Division 1, supra, a
municipality has sovereign immunity when it performs a governmental function
except as waived by the purchase of liability insurance. Here, we conclude — and the
Gattos do not dispute — that the actions are a governmental function. Accordingly,
we must determine whether the City waived sovereign immunity by its purchase of
liability insurance.
The liability insurance policy purchased by the City contained an endorsement
which provides:
[w]e have no duty to pay damages on your behalf under this policy
unless the defenses of sovereign and governmental immunity are
inapplicable to you. This policy and any coverages associated therewith
does not constitute, nor reflect an intent by you, to waive or forego any
defenses of sovereign and governmental immunity available to any
Insured, whether based upon statute(s), common law or otherwise,
including Georgia Code Section 36-33-1, or any amendments.
11
This language expressly provides that it will not cover occurrences when sovereign
immunity applies. As set out above, the actions challenged in this lawsuit involve a
governmental function to which sovereign immunity applies. It thus follows that
because the insurance policy does not cover the Gattos’ claims here, there is no
legislative waiver of sovereign immunity.
The Gattos argue that the language of the policy effectively usurps the General
Assembly’s legislative waiver, and allows the City to contract around the waiver. But,
the General Assembly has expressly provided for waiver where the policy of
insurance “covers an occurrence for which the defense of sovereign immunity is
available.” See OCGA § 36-33-1 (a). See also Deal v. Coleman, 294 Ga. 170, 172 (1)
(a) (751 SE2d 337) (2013) (“[w]hen we consider the meaning of a statute, we must
presume that the General Assembly meant what it said and said what it meant”)
(citation omitted). And, in cases such as Owens v. City of Greenville, 290 Ga. 557
(722 SE2d 755) (2012), the Supreme Court of Georgia has specifically analyzed
insurance policies to determine whether they actually provide coverage for a
plaintiff’s claims for damages. See id. at 559 (3) (a).
The Gattos also contend that judicial estoppel bars the defendants from
asserting that the insurance policy does not cover the Gattos’ claims. Specifically, in
12
response to a declaratory judgment action filed by Atlantic in federal district court,
the defendants stated in their pleadings that “the claims in the Gatto Plaintiffs’
Complaint are covered claims and are not excluded from the Policy’s coverage.” In
their counterclaim filed in that action, the defendants also asked the district court to
declare that “[t]he claims of the Underlying Lawsuit are within the coverage of the
[insurance] Policy.”
Judicial estoppel is an equitable doctrine that prevents a party from asserting
a claim or position in a legal proceeding that is inconsistent with a claim taken by that
party in a previous proceeding. See New Hampshire v. Maine, 532 U. S. 742, 749 (II)
(121 SCt 1808, 149 LE2d 968) (2001). See also Benton v. Benton, 280 Ga. 468, 469
(629 SE2d 204) (2006). “[I]ts purpose is to protect the integrity of the judicial process
by prohibiting parties from deliberately changing positions according to the
exigencies of the moment.” (Citations omitted.) New Hampshire, 532 U. S. at 749-750 (II). The “doctrine is invoked by a court at its discretion, and [is] intended to
prevent abuse of the judicial process. The circumstances under which it is appropriate
are not reduced to any general formula or rule.” Benton, 280 Ga. at 469. In New
Hampshire, the Supreme Court set out several factors to consider when deciding
13
whether to apply the doctrine in a particular case, and our Supreme Court summarized
them as follows:
(1) the party’s later position must be “clearly inconsistent” with its
earlier position; (2) the party must have succeeded in persuading a court
to accept the party’s earlier position; here the [United States] Supreme
Court noted that absent success in a prior proceeding, a party’s later
inconsistent position introduces no risk of inconsistent court
determinations, and thus poses little threat to judicial integrity; and (3)
whether the party seeking to assert an inconsistent position would derive
an unfair advantage or impose an unfair detriment on the opposing party
if not estopped.
(Citation and punctuation omitted.) IBF Participating Income Fund v.
Dillard-Winecoff, 275 Ga. 765, 766 (573 SE2d 58) (2002). We have applied the
doctrine even where the underlying case does not involve a federal bankruptcy
proceeding. See, e.g., Georgia Neurology & Rehabilitation v. Hiller, 310 Ga. App.
202, 207 (2) (a) (712 SE2d 611) (2011); Falanga v. Kirschner & Venker, 286 Ga.
App. 92, 97 (1) (c) (648 SE2d 690) (2007).
In IBF, the Supreme Court of Georgia affirmed this Court’s holding that
judicial estoppel did not apply when the earlier bankruptcy proceeding in which the
party took an allegedly inconsistent position concluded in dismissal of the petition.
14
Id. But see Roberts v. State, 278 Ga. 610 (604 SE2d 781) (2004) (judicial estoppel
does not apply in criminal cases). In this case, Atlantic’s declaratory judgment action
in federal district court was dismissed without prejudice, and the Gattos consented to
that dismissal. Under these circumstances, it cannot be said that the defendants
succeeded in persuading a court to accept their allegedly inconsistent position. See
IBF, 275 Ga. at 766. Accordingly, we affirm the grant of summary judgment to the
City based on sovereign immunity.
3. Because we have found that sovereign immunity applies to the City, we need
not consider the Gattos’ remaining arguments, namely that the trial court erred in
ruling that (1) the City’s alleged maintenance of a nuisance at Rude Rudy’s and
University Plaza did not proximately cause Michael’s injuries and death and (2) that
summary judgment is also supported by the public duty doctrine. See Calloway, 336
Ga. App. at 717 (2); Ratliff v. McDonald, 326 Ga. App. 306, 311 (1) (756 SE2d 569)
(2014).
4. Next, we address the trial court’s grant of summary judgment in favor of
Starling. With regard to summary judgment on the Gattos’ claim against Starling, the
parties only disputed whether Starling was individually liable for her own negligence
in not scheduling due process hearings and continuing to renew alcohol licenses,
15
contesting whether these tasks were ministerial or discretionary such that official
immunity applied. In their motion for summary judgment, the defendants alleged,
inter alia, that summary judgment on the Gattos’ negligence claim was proper because
“Sue Starling is entitled to qualified or official immunity from such claims in her
individual capacity[.]”4 Specifically noting that the Gattos already dismissed the
“official capacity” claims against Starling, leaving only the claims asserted against
her as an individual, the defendants argued that Starling was entitled to official
immunity because the scheduling of due process hearings for alleged violations of the
City’s alcohol ordinance by the University Plaza establishments was a discretionary
act. Counsel for the defendants reinforced this position during the summary judgment
hearing, stating: “First, let me be clear that the issue of sovereign immunity only
pertains to the City, it’s not Ms. Starling’s defense.” (Emphasis supplied.) Counsel
4
“The doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for [her] negligent ministerial acts, [she] may not be held liable for [her] discretionary acts unless such acts are wilful, wanton, or outside the scope of [her] authority.” (Citations omitted.) Owens v. City of Greenville, 290 Ga. 557, 560 (3) (b) (722 SE2d 755) (2012). See also Tattnall County v. Armstrong, 333 Ga. App. 46, 52 (775 SE2d 573) (2015) (Barnes, P. J., concurring fully and specially) (noting that the nomenclature used in this area of the law is extremely confusing and suggesting that we replace “official immunity” with “qualified immunity” when analyzing whether a person sued in his or her individual capacity is immune from suit), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016).
16
concluded his argument as follows: “So our position is that Ms. Starling is entitled
to official immunity for all claims asserted against her because the process was
discretionary, but even if you believe it was ministerial no breach can be tied causally
to the death of [Michael].”
As we interpret the portion of the order granting summary judgment to Starling,
the trial court found that even though the Gattos claimed they were suing Starling in
her individual capacity, in reality, Starling was being sued in her official capacity.
The trial court concluded that “[s]uits against public employees in their official
capacities are in reality suits against the state, and therefore, involve sovereign
immunity[;] therefore[, the Gattos] are precluded from pursuing their negligence
claims against [Starling] in her official capacity.” The trial court ruled that Starling
was entitled to sovereign immunity; the trial court never addressed whether she was
entitled to qualified immunity as asserted by the defendants. On appeal, the Gattos
contend that because they withdrew any claims against Starling in her official
capacity two years before the summary judgment ruling, the trial court committed
plain error by applying sovereign immunity to the individual-capacity claims against
Starling. Having considered the arguments made below and on appeal, and the trial
17
court’s order, we conclude that the trial court erred in sua sponte granting summary
judgment to Starling on the ground of sovereign immunity.
A trial court, with some limitations, may sua sponte grant summary judgment.
See Pruette v. Phoebe Putney Mem. Hosp., 295 Ga. App. 335, 342 (2) (671 SE2d
844) (2008).
In addition to ensuring the record supports such a judgment, the trial
court must ensure that the party against whom summary judgment is
rendered is given full and fair notice and opportunity to respond prior to
entry of summary judgment. Thus, we have reversed summary judgment
where the parties did not argue the merits of a claim either in briefs or
at a hearing.
(Citation omitted.) Id. at 342-343 (2). In this case, the defendants never moved for
summary judgment in favor of Starling on the ground of sovereign immunity. The
ground was never raised in their briefs or at the summary judgment hearing. On the
contrary, the defendants have steadily maintained that Starling is immune from suit
on the ground of official or qualified immunity because she was sued in her
individual capacity; and, they continue to assert that argument in their brief before
this Court. Moreover, the trial court neither referenced the legal issue in the hearing
nor asked the parties to brief the issue after the hearing. “It follows that [the Gattos
18
were] not given adequate notice and an opportunity to be heard on the issue of
whether [sovereign immunity applied to the Gattos’ claim against Starling].” Id. at
343 (2). Because the trial court erred in sua sponte granting summary judgment on
this ground, we reverse.5 See id. See also Brito v. Gomez Law Group, 289 Ga. App.
625, 630 (3) (a) (658 SE2d 178) (2008).
The defendants nevertheless argue that we should affirm, asserting that “any
error in the trial court’s analysis of the claims against Starling is harmless, because
the undisputed evidence shows that she is entitled to [qualified] immunity insofar as
any of her alleged actions or omissions were discretionary, rather than ministerial.”
Under the circumstances here, we decline to exercise our discretion and reach the
merits as urged by the defendants, and instead elect to return the case to the trial court
for its proper consideration of summary judgment as to Starling. See City of
Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002).
Case No. A19A1409
5
Because “[t]he issue of a government employee’s official [or qualified] immunity must . . . be resolved as the threshold issue in a suit against the employee in his personal capacity,” Roberson v. McIntosh County School Dist., 326 Ga. App. 874, 876 (1) (755 SE2d 304) (2014), we do not address the alternative grounds (proximate cause and/or the public duty doctrine) advanced by the defendants in support of their motion for summary judgment in favor of Starling.
19
5. As set out above, in Case No. A19A1409, Atlantic appeals the trial court’s
denial of its motion to intervene. In its brief on appeal, Atlantic states that it
only moved to intervene in this lawsuit to respond to the Gattos’
arguments concerning insurance coverage and judicial estoppel and to
preserve its rights if the [motion for summary judgment] was not
granted. An order affirming the grant of [summary judgment] would
address Atlantic’s concerns. Thus, the only reason to consider this
appeal is if this Court reverses the order granting [summary judgment].
Given our holdings in Divisions 1 and 2, supra, Atlantic’s appeal of the denial of the
motion to intervene as to the City is moot. See Reliance Equities, LLC v. Lanier 5,
LLC, 299 Ga. 891, 896 (3) (792 SE2d 680) (2016). See also Bremen Products Co. v.
Ledbetter-Johnson Co., 109 Ga. App. 573, 574 (136 SE2d 404) (1964) (“an
intervention follows the fate of the original petition”).
Our conclusion as to Starling, however, is different since we have reversed the
grant of summary judgment in her favor. The record shows that Atlantic filed its
motion to intervene and request for a hearing on October 8, 2018. On October 16,
2018, the trial court issued a notice regarding the motion to intervene, indicating that
it would be willing to entertain arguments regarding the motion at the previously
scheduled summary judgment hearing on October 23, 2018, but that it would be
20
“receptive to the request of any party for the additional time to respond as allowed by
the Uniform Superior Court Rules.” On October 17, 2018, the Gattos filed a notice
indicating their objection to argument on October 23, 2018, on the motion to
intervene, and requesting the full time to respond to the motion. See Uniform
Superior Court Rule 6.2. At the October 23, 2018 hearing, the trial court
acknowledged that the Gattos had requested the full 30 days to respond to the motion
to intervene, but nonetheless allowed Atlantic’s counsel to argue the motion in the
interest of time, stating that it would allow the Gattos the “full time” to respond to the
motion and even request a further hearing, and that it would “not grant [the] motion
without an opportunity for [the Gattos] to file a written response.” At the conclusion
of Atlantic’s argument, the trial court reiterated that it would “continue [the motion],
let the [Gattos] have an opportunity to respond.” Despite this assurance, the trial court
issued a written order the very same day, denying the motion to intervene on the
ground that Atlantic’s interest was “adequately represented by existing parties.”
Given that we have reversed the grant of summary judgment to Starling, and because
the Gattos were not given an opportunity to respond to the motion to intervene, we
vacate the trial court’s order denying Atlantic’s motion to intervene as to Starling and
remand the case for further proceedings not inconsistent with this opinion.
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Judgment affirmed in part and reversed in part in Case No. A19A1408.
Judgment dismissed as moot in part and vacated in part, and case remanded with
direction in Case No. A19A1409. Barnes, P. J., and Mercier, J., concur.
22