FIFTH DIVISION MCFADDEN, P. J., GOBEIL and PINSON, 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. https://www.gaappeals.us/rules
June 9, 2022
In the Court of Appeals of Georgia A22A0484. PARRISH et al v. ST. JOSEPH’S/CANDLER HEALTH SYSTEM, INC. et al.
GOBEIL, Judge.
Jason Parrish, in his capacity as parent of minor child S. P., consented to an
order dismissing with prejudice S. P.’s wrongful death claims against two defendants
in this multi-party medical malpractice/wrongful death litigation. Later, represented
by new counsel, Parrish moved to vacate that order, claiming that his former counsel
had mistakenly believed S. P.’s wrongful death claims were time-barred. The trial
court denied the motion to vacate, but issued a certificate of immediate review.
Parrish filed an application for interlocutory review, which we granted. In the instant
appeal, Parrish contends that the trial court erred in denying his motion to vacate the
consent order because the court: (1) failed to conduct a substantive analysis or weigh the relative benefit and harm to the parties; (2) erroneously interpreted its duty to
protect the interests of a minor child; (3) failed to consider that there is a legitimate
basis for vacating the order, as the statute of limitation for S. P.’s claims has not
expired; and (4) wrongly declined to exercise its equitable powers, given the
compelling and unique facts of this case. For the reasons that follow, we affirm.
The record shows that Heather Ruggles went into cardiac arrest and died during
childbirth on September 29, 2016, at Candler Hospital in Savannah. Her baby, S. P.,
was successfully delivered by C-section. After an autopsy, the cause of Ruggles’s
death was determined to be acute toxicity from a local anesthetic, Bupivacaine,
administered in conjunction with her epidural. Ruggles was unmarried at the time, but
was engaged to S. P.’s father, Parrish. Parrish is the administrator of Ruggles’s estate.
In December 2017, in his capacities as administrator of the estate and parent
of S. P., Parrish filed this medical malpractice/wrongful death action against St.
Joseph’s/Candler Health System, Inc., and three nurses involved in Ruggles’s care.
In June 2019, Parrish filed a motion to add as party-defendants Michael Marshall,
M.D. and Mary Finn, M.D., two anesthesiologists responsible for the epidural. The
trial court granted the motion, and in August 2019, Parrish filed an amended
2 complaint asserting both wrongful death and estate claims against those defendants.1
In particular, Parrish alleged that Marshall and Finn failed to identify the source of
Ruggles’s cardiac arrest as local anesthetic system toxicity and failed to administer
the standard treatment for that condition.
In September 2019, Marshall and Finn filed separate motions to dismiss S. P.’s
newly added wrongful death claims against them, arguing that those claims were
barred by OCGA § 9-3-71 (a)’s two-year statute of limitation for medical malpractice
claims. Parrish’s lawyer did not respond to the motions to dismiss. Instead, he
consented to the entry of an October 2019 order dismissing the claims with prejudice.
The consent order noted that Marshall and Finn had moved to dismiss the claims as
time-barred and that Plaintiff “agreed that [S. P.’s] wrongful death claims against
[Marshall and Finn] should be dismissed,” but the order did not address the merits of
the statute of limitation defense. The order further noted that the estate’s claims
1 “(A)n individual’s claim for wrongful death of a spouse or [parent] and an estate’s claim for the decedent’s pain and suffering are distinct causes of action.” Hall v. Hill, 360 Ga. App. 635, 641 (1) (c) (859 SE2d 897) (2021) (citation and punctuation omitted). In a wrongful death claim, the surviving spouse or child may assert a claim for the homicide of the decedent and may recover “the full value of the life of the decedent.” OCGA § 51-4-2 (a). The estate may assert a separate claim for the decedent’s pain and suffering. See Mays v. Kroger Co., 306 Ga. App. 305, 306 (701 SE2d 909) (2010).
3 against Marshall and Finn remained pending, as did all other claims brought by S. P.
and the estate against the hospital and three nurses.
In November 2019, Parrish’s present counsel entered an appearance in the case
as co-counsel. With the court’s permission, Parrish later added additional vicarious
liability claims against Marshall and Finn’s professional corporation, Obstetric
Anesthesia & Pain Consultants (“OAPC”). In January 2021, Parrish’s original
counsel withdrew from representation. Present counsel claims that he only discovered
that S. P.’s wrongful death claims against Marshall and Finn had been dismissed with
prejudice per the October 2019 consent order after Marshall alerted him to this fact
in a letter dated January 22, 2021. Present counsel began researching the statute of
limitation issue and concluded that the claims in question were not time-barred
because of a minority tolling provision in OCGA § 9-3-73 (b). Accordingly, in March
2021, present counsel filed a motion to vacate the consent order, arguing that (1) S.
P.’s wrongful death claims against Marshall and Finn were not time-barred; (2) the
court should not have entered the consent order without considering the consequences
to the minor child, S. P.; and (3) vacating the consent order would not prejudice
Marshall and Finn because the estate’s claims against them remain pending.
4 A new trial court judge heard the motion as the original judge had retired. As
an initial matter, the trial court questioned why the October 2019 consent agreement
between the parties “was made an order of the [c]ourt at all,” because (1) the order
did not resolve all the claims against Marshall and Finn, and thus leave of court was
not required under OCGA § 9-11-21; and (2) there was no settlement between the
parties. The new judge highlighted that he “was not privy to any discussions
regarding the entry of the consent order.” In any case, the court acknowledged that
the order at issue had been consented to and signed by all parties, as well as the trial
judge presiding over the case at the time. The judge continued that while he had
discretion to vacate the consent order, he was
persuaded by the Defendants’ argument that the Plaintiff willingly and knowingly entered into this agreement to dismiss these claims “with prejudice” seventeen months ago. The Plaintiff obtained the benefit of avoiding potentially significant motion practice and agreed to provide finality to the Defendants as to these claims. The length of the delay and the benefit derived as a result of the agreement convince this Court that it is proper to allow the order to remain in place.
The judge further noted that Parrish’s “change in strategy more than a year and a half
later is not compelling and fails to convince this [c]ourt to exercise its discretion and
vacate the prior order.” With respect to Parrish’s argument that the court should have
5 safeguarded S. P.’s rights, the judge ruled that “a simple consent agreement such as
this” did not require judicial approval and it did not implicate the court’s duty to
protect the interests of the child. The court did not address the merits of Parrish’s
statute of limitation argument. At Parrish’s request, the court certified its order for
immediate review. Parrish filed an application for interlocutory review, which we
granted. See Case No. A22I0033 (Sept. 28, 2021). This timely appeal followed.
As an initial matter, the trial court was correct that it had the authority to vacate
the 2019 consent order because it was an interlocutory order that adjudicated fewer
than all claims in the case. See Hudson v. Godowns, 320 Ga. App. 157, 159 (2) (739
SE2d 462) (2013) (“An order adjudicating fewer than all the claims is not final . . .
and is subject to revision at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties.”) (citation and punctuation
omitted). See also OCGA § 9-11-54 (b).
Generally, we review the trial court’s ruling on a motion to vacate an
interlocutory order for abuse of discretion. See Bradley v. Tattnall Bank, 170 Ga.
App. 821, 823 (1) (318 SE2d 657) (1984) (“while a judge should be cautious about
overruling prior orders of another judge in the same case[,] nevertheless, he may do
so in the exercise of sound discretion and particularly if he is convinced that such
6 action is dictated by the interests of justice”) (citation and punctuation omitted).
Although this standard of review is deferential, “it is not toothless.” Eagle Jets, LLC
v. Atlanta Jet, Inc., 347 Ga. App. 567, 576 (2) (c) (820 SE2d 197) (2018) (citation and
punctuation omitted). See also Intl. Harvester Co. v. Cunningham, 245 Ga. App. 736,
739 (1) (538 SE2d 82) (2000) (trial court’s exercise of discretion “must be based on
sound legal analysis”). With these guiding principles in mind, we now turn to
Parrish’s specific claims of error.
1. Parrish contends that the trial court failed to conduct a substantive analysis
or weigh the relative benefit and harm to the parties before denying the motion to
vacate the consent order. He argues that the court’s “sole basis” for denying relief was
the length of time (17 months) between the entry of the consent order in October
2019, and the filing of the motion to vacate in March 2021. Parrish also challenges
the court’s characterization that former counsel’s consent to the dismissal order
constituted a calculated decision that benefitted S. P., and present counsel’s motion
to vacate as a belated “change of strategy.” For the reasons that follow, we find no
reversible error.
Like the trial court, we begin our analysis by considering the nature of the
October 2019 order, styled as a “Consent Order Dismissing Plaintiff’s Wrongful-
7 Death Claim.” Here, the 2019 consent order does not resemble a traditional
settlement, as Marshall and Finn admitted no liability and made no litigation
concessions; and Parrish and S. P. received no money. Nevertheless, as highlighted
by the trial court in its order denying the motion to vacate, the order at issue was
consented to and signed by all parties, and, at the parties’ request, the agreement was
adopted by and decreed to be an order of the trial court. As we have explained:
A consent order is essentially a binding agreement of the parties that is sanctioned by a court, and it is subject to the rules governing the interpretation and enforcement of contracts. Accordingly, a consent order can be construed according to the general rules of contract construction. Furthermore, where the language of a contract is plain and unambiguous, no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance.
Northlake Manor Condo. Assn., Inc. v. Harvest Assets, LLC, 345 Ga. App. 575, 580-
581 (1) (812 SE2d 658) (2018) (citation and punctuation omitted).
[I]t is generally accepted that a consent judgment differs from a judgment rendered on the merits in that it results from an affirmative act of the parties rather than the considered judgment of the court following litigation of the issues. A consent judgment is one entered into by stipulation of the parties with the intention of resolving a dispute, and generally is brought to the court by the parties so that it may be entered by the court, thereby compromising and settling an action. Although a
8 consent judgment is brought about by agreement of the parties, it is accorded the weight and finality of a judgment. Thus, a consent decree is an enforceable judgment and can be accorded preclusive effect.
Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 423-424 (3) (627 SE2d
549) (2006) (citations and punctuation omitted). As previously stated, a trial court
retains authority to modify “interlocutory order[s] that remain[ ] within the breast of
the court until entry of final judgment.” Rudd v. Paden, 279 Ga. App. 141, 145 (3)
(630 SE2d 648) (2006).
Parrish maintains that former counsel’s consent to the dismissal of S. P.’s
wrongful death claims against Marshall and Finn was not strategic, but was instead
based on a mistaken belief of law that these claims were time-barred. Importantly,
Parrish does not allege that the trial court lacked jurisdiction to enter the consent
order, or that it was procured by fraud, coercion, duress, or otherwise void. Nor is
there any indication that the consent order’s dismissal of S. P.’s claims against the
two doctors with prejudice was a scrivener’s error, or that Parrish moved to correct
and rescind the voluntary dismissal with prejudice under OCGA § 9-11-60 (g).2 See
2 OCGA § 9-11-60 (g) provides: “Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party
9 Sanson v. State Farm Fire & Cas. Co., 276 Ga. App. 555, 556 (623 SE2d 743) (2005)
(concluding that the trial court abused its discretion by denying a party’s motion to
rescind a dismissal with prejudice, pursuant to OCGA § 9-11-60 (g), when the facts
“demonstrate[d] that a clerical error was made by mutual mistake of the parties,
resulting in an erroneous judgment — the dismissal with prejudice”); Mullinax v.
State Farm Mut. Auto. Ins. Co., 303 Ga. App. 76, 77, 79 (2) (692 SE2d 734) (2010)
(holding that the trial court abused its discretion by not allowing insureds to rescind
their dismissal of action against defendant with prejudice, in which counsel submitted
affidavits indicating that insureds did not intend to dismiss the complaint with
prejudice).
“Both parties signed the [consent order], and the [order] became a binding
contract between the parties. Competent parties are free to choose, insert, and agree
to whatever provisions they desire in a contract unless prohibited by statute or public
policy.” State Farm Fire & Cas. Ins. Co. v. Terry, 230 Ga. App. 12, 14 (2) (495 SE2d
66) (1997) (citation and punctuation omitted); Hunter v. Schroeder, 186 Ga. App.
799, 800 (368 SE2d 561) (1988) (malpractice suit settled by consent order dismissing
the action with prejudice). “The law is well settled that fraud cannot be predicated
and after such notice, if any, as the court orders.”
10 upon misrepresentations of law or misrepresentations as to matters of law. It is also
well settled that a simple mistake by a party as to the legal result of an act which he
performs is no ground for either defensive or affirmative relief.” Joyner v. Leaphart,
358 Ga. App. 383, 388 (6) (853 SE2d 407) (2021) (citation and punctuation omitted);
Brown v. RAC Acceptance East, LLC, 303 Ga. 172, 177 (2) (c) (809 SE2d 801)
(2018) (“fraud and a mistake of law are not cut from the same cloth”) (citation and
punctuation omitted). See generally Dept. of Transp. v. Revco Discount Drug
Centers, Inc., 322 Ga. App. 873, 873, 877 (1) (746 SE2d 631) (2013) (plaintiff who
mistakenly dismissed subsequent lawsuit with prejudice instead of without prejudice
was barred by res judicata from pursuing claims in earlier lawsuit although parties
had agreed to allow plaintiff to intervene in earlier lawsuit, and trial court had entered
an order allowing plaintiff to intervene and directing plaintiff to dismiss its
subsequent lawsuit).
There is no doubt that the consent order disadvantaged S. P. by dismissing
with prejudice her wrongful death claims against the two defendants that she alleges
are primarily responsible for her mother’s death. Parrish highlights that reinstating
S. P.’s wrongful death claims would not prejudice Marshall and Finn because, as
noted in the consent order, the estate’s claims against Marshall and Finn remain
11 pending below, as do all of the other claims brought by S. P. and the estate against the
hospital, three nurses, and Marshall and Finn’s corporation, OAPC. However, based
on the record before us, S. P., represented by legal counsel and her father, voluntarily
entered into the consent order dismissing the claims against Marshall and Finn. The
original trial court judge approved the consent order based on the representations of
both parties, and Parrish has failed to cite to any legal authority to support his
assertion that the court had an independent duty to verify the parties’ joint statement
that the statute of limitation had run on S. P.’s claims against Marshall and Finn.
Because the consent order remains intact, Marshall and Finn “[are] entitled to
rely on [their] rights as established in the consent order,” namely, the dismissal of
S. P.’s wrongful death claims against them with prejudice. Olympus Media, LLC v.
City of Dunwoody, 335 Ga. App. 62, 69 (2) (780 SE2d 108) (2015). In short, Parrish
has failed to support his assertion that the trial court was required to conduct a more
thorough analysis or weigh any specific factors prior to entering the consent order
presented by both parties. Under these circumstances, we cannot say that the trial
court abused its discretion in denying Parrish’s motion to vacate the 2019 consent
order. See generally Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261)
(2014) (a proper application of abuse-of-discretion review recognizes that there is a
12 “range of possible conclusions the trial judge may reach” and that this Court often
will affirm a trial court ruling under an abuse-of-discretion standard “even though we
would have gone the other way had it been our call”) (citation and punctuation
omitted); McDonald v. Garden Svcs., Inc., 163 Ga. App. 851, 852-853 (295 SE2d
551) (1982) (absent an abuse of discretion, this Court will not substitute its judgment
for the trial court’s, even if individual members of this Court may have reached a
different conclusion).
2. Parrish contends that the trial court did not properly interpret its independent
duty to protect the substantial rights of a minor. Relying primarily on OCGA § 9-11-
17 (c) and our Supreme Court’s holding in Mosley v. Lankford, 244 Ga. 409 (260
SE2d 322) (1979), Parrish argues that the trial court failed to fulfill its role in
protecting the interests of a minor by approving the consent order dismissing the
claims against the two doctors without first examining whether S. P.’s claims were
indeed barred the statute of limitation. However, his reliance on these authorities is
misplaced.
OCGA § 9-11-17 (c) provides in pertinent part that “[t]he court shall appoint
a guardian ad litem for an infant or incompetent person not otherwise represented in
an action or shall make such other order as it deems proper for the protection of the
13 infant or incompetent person.” (Emphasis supplied.) In this case, as previously stated,
S. P. was represented by both her father and counsel. As a result, the court had no
reason to appoint another representative on behalf of S. P.
Similarly, Mosley does not support Parrish’s contention. In that case, a minor
was injured in an automobile accident, and his father filed suit as next friend. Mosley,
244 Ga. at 409. Although initially represented by counsel, the minor’s lawyer later
withdrew from the case. Id. When the case was called for trial, no one appeared at
trial on the child’s behalf, and the court dismissed the case for want of prosecution.
Id. The minor’s mother later attempted to set aside the dismissal, which the trial court
denied. Id. at 409-410. In reversing, our Supreme Court held that “[b]ecause the
minor was not represented at the call of the case, it was incumbent upon the trial court
in the original action to appoint a guardian ad litem or make such other order as it
(deemed) proper for the protection of the infant[.]” Id. at 411. The instant case is
readily distinguishable in that S. P. was represented by both her father and attorney
at the time the consent order was executed.
We are also unpersuaded by Parrish’s unsupported allegation that the trial court
had “an independent duty to protect [S. P.’s] interests when [her] guardian or counsel
[did] not.” As highlighted by Marshall and Finn, Parrish’s “position would create an
14 obligation of every trial court to practice law on behalf of the minor claimants . . . to
determine if there is any colorable, novel claim that the parties might be overlooking
that could conceivably apply to the minor child’s situation.” Even though S. P. was
a minor when she entered into the consent order, there is no dispute that she was
represented by counsel and a legal guardian, her father, at the time of the agreement’s
execution. “Although a minor is required to appear through a guardian or next friend,
the minor is the real party in interest, and the guardian or next friend is merely an
officer of the court to protect the rights of the minor who is considered incapable of
managing his own affairs.” Clements v. Phillips, 235 Ga. App. 588, 589 (1) (510
SE2d 311) (1998) (citation and punctuation omitted).
The authority of one who acts as next friend for a minor in a judicial proceeding is derived from the permission of the court to act in that capacity. No particular person is required to act, nor is it necessary that the person so acting be appointed by formal order. The court, in allowing the case to proceed, is presumed to have approved the appearance of the person acting as next friend.
Tillett v. Patel, 192 Ga. App. 60, 60 (1) (383 SE2d 622) (1989) (citation and
punctuation omitted). “A next friend cannot unreasonably surrender a minor’s
substantial rights. But the next friend must not be denied such necessary incidental
15 powers as will facilitate the fair adjudication of the infant’s rights. This is necessary
to their proper vindication, both in prosecution and defense.” Id. at 60-61 (1) (citation
and punctuation omitted).
Like the trial court, we “[were] not privy to any discussions regarding the entry
of the consent order,” nor do we have any insight as to why S. P.’s counsel elected
to agree to the dismissal of her claims against Marshall and Finn with prejudice.
Again, Parrish has failed to point to any duty on the part of the trial court to question
the terms of the consent order where the record shows that both parties freely and
voluntarily entered into the agreement. In its order denying the motion to vacate the
consent order, the court specifically noted that it had considered the underlying
motions, related briefing, and the parties’ arguments at oral argument. See Blackmore
v. Blackmore, 311 Ga. App. 885, 890 (5) (717 SE2d 504) (2011) (“Upon appellate
review, we presume that the trial court properly considered all of the evidence before
it.”). Based on the record, we have no basis to conclude that the trial court failed to
fulfill its obligations under OCGA § 9-11-17 (c) or that it abused its discretion in
denying the motion to vacate the consent order.
3. Parrish asserts that the trial court failed to consider that there is a legitimate
basis for vacating the order, as the statute of limitation for S. P.’s claims against the
16 two doctors has not expired. Parrish alleges that the trial court erred by failing to
reach the “critical substantive issue” of the statute of limitation “that deserves judicial
review.” We find no error.
As discussed in Division 1, we have no reason to disturb the trial court’s denial
of Parrish’s motion to vacate the consent order based on the parties’ mutual
representation to the court that S. P.’s wrongful death claims against the two doctors
should be dismissed as barred by the statute of limitation. Because the court never
considered S. P.’s statute of limitation argument, it never ruled upon it. See
Auto-Owners Ins. Co. v. Hale Haven Props., Inc., 346 Ga. App. 39, 53-54 (3) (a) (815
SE2d 574) (2018) (“Although both parties’ timeliness arguments were raised in the
trial court, the record does not show that the trial court addressed them. Thus, if we
were to conclude that the trial court erred, it would be on account of an issue never
ruled on below.”) (citation and punctuation omitted). Indeed, without a ruling on this
specific question, the issue is outside the proper scope of our review. See Piedmont
Hosp. v. D. M., 335 Ga. App. 442, 449 (3) (779 SE2d 36) (2015) (“Here, the trial
court expressly declined to rule on the issue of whether [the appellants] are equitably
estopped from asserting a statute of repose defense based on its erroneous
determination that no medical malpractice claims remained. Because the trial court
17 did not reach the issue of equitable estoppel in denying the motions for summary
judgment, we find that the issue is outside the proper scope of our review in this
appeal.”). We therefore need not reach Parrish’s arguments about the statute of
limitation of S. P.’s wrongful death claims.3
4. Finally, Parrish argues that the trial court erred by declining to exercise its
equitable powers to grant relief “given the compelling and unique facts of this case.”
But Parrish fails to show that the trial court should have vacated the consent order on
this basis.
“[Georgia’s] Constitution vests general equitable powers in the superior court.”
Brown v. Liberty Oil & Refining Corp., 261 Ga. 214, 215-216 (2) (b) (403 SE2d 806)
(1991) (footnote omitted). Specifically, our Constitution provides:
The superior courts shall have jurisdiction in all cases, except as otherwise provided in this Constitution. They shall have exclusive jurisdiction over trials in felony cases, except in the case of juvenile offenders as provided by law; in cases respecting title to land; and in
3 We also need not address Parrish’s alternate argument that the trial court could have found that S. P.’s wrongful death claims against Marshall and Finn relate back to the original complaint under OCGA § 9-11-15 (c) because this issue was not raised in the trial court. See Smith v. City of Roswell, 361 Ga. App. 853, 857 (2) (a) (864 SE2d 175) (2021) (“Appellate courts do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them.”) (citation and punctuation omitted).
18 divorce cases. They shall have concurrent jurisdiction with the state-wide business court in equity cases.
Ga. Const. of 1983, Art. VI, Sec. IV, Par. I. See also Allen v. Allen, 260 Ga. 777, 779
(3) n. 2 (400 SE2d 15) (1991) (when the legislature conferred equity powers upon
superior courts in 1799, it adopted the whole system of English jurisprudence,
common law, and chancery).
However, equity jurisdiction is only available in certain circumstances. Under
OCGA § 23-1-3, “[e]quity jurisdiction is established and allowed for the protection
and relief of parties where, from any peculiar circumstances, the operation of the
general rules of law would be deficient in protecting from anticipated wrong or
relieving for injuries done.” Significantly, to invoke the equity jurisdiction of a court,
“a party . . . must first identify some legally cognizable ‘wrong’ or ‘injury’ that needs
to be remedied.” Williford v. Brown, 299 Ga. 15, 18 (3) (785 SE2d 864) (2016)
(punctuation omitted). As this Court has held, a trial court has “broad discretion to
fashion an equitable remedy based upon the exigencies of the case, and an appellate
court sustains the trial court’s action where such discretion has not been abused.”
Tafel v. Lion Antique Cars & Investments, Inc., 297 Ga. 334, 339 (4) (773 SE2d 743)
(2015) (citation and punctuation omitted). But, as our Supreme Court has clarified:
19 [T]he first maxim of equity is that equity follows the law. Thus, a court of equity has no more right than a court of law to act on its own notion of what is right in a particular case. Where rights are defined and established by existing legal principles, they may not be changed or unsettled in equity. Although equity does seek to do complete justice, it must do so within the parameters of the law.
Dolinger v. Driver, 269 Ga. 141, 143 (4) (498 SE2d 252) (1998) (citations and
punctuation omitted).
In support of his argument that the trial court should have exercised its
equitable powers to vacate the consent order, Parrish relies on Brown, 261 Ga. at 214-
216, and its progeny. In those cases, we examined the applicability of the equitable
exception to exclusive spousal standing to bring wrongful death actions under
Georgia’s Wrongful Death Act, OCGA § 51-4-1 et seq. See Brown, 261 Ga. at 215-
216 (2) (concluding that exercise of the trial court’s equitable powers was demanded
to allow the decedent’s minor children to proceed as claimants under the wrongful
death statute; even though the statute conferred exclusive standing upon the surviving
spouse and further required the surviving spouse to share the proceeds with the
decedent’s children, the children/claimants had been abandoned by the surviving
spouse). See also Emory Univ. v. Dorsey, 207 Ga. App. 808, 809-810 (2) (429 SE2d
20 307) (1993) (finding that minor child of decedent could pursue wrongful death action,
notwithstanding fact that decedent had surviving spouse, where surviving spouse had
left the state shortly after decedent’s death, had no intention of pursuing a wrongful
death action, and had no blood or legal relationship with the child); Belluso v. Tant,
258 Ga. App. 453, 455 (574 SE2d 595) (2002) (“it is within the equitable powers of
the superior court to permit the prosecution of the wrongful death action by a parent
when the surviving spouse is the alleged wrongdoer”). In a recent decision, Connell
v. Hamon, 361 Ga. App. 830, 838 (863 SE2d 744) (2021), also cited by Parrish, we
clarified that “no Georgia statute or case gives adult children a right to file a wrongful
death action to recover damages for the death of a parent even if a surviving spouse
declines to exercise his or her right to bring such an action.” In Connell, there was no
indication in the record that the decedent’s surviving spouse (and plaintiff’s mother)
could not be found or had abandoned a legal obligation to support the plaintiff, an
adult child. Id. at 835.
In contrast to these cases, there is no dispute that S. P., as the sole surviving
child of Ruggles (who was unmarried at the time of her death), had standing to bring
a wrongful death claim on behalf of her mother. However, she voluntarily
relinquished those claims by entering into the consent order. Assuming, without
21 deciding, that S. P.’s prior counsel entered into the consent order — agreeing to
dismiss her wrongful death claims against Marshall and Finn — based on his
mistaken belief that the statute of limitation had run on these claims, Parrish fails to
provide any support for his argument that the trial court should have exercised its
equitable powers to vacate the consent order. See OCGA § 23-2-27 (“Mere ignorance
of the law on the part of the party himself, where the facts are all known and there is
no misplaced confidence and no artifice, deception, or fraudulent practice is used by
the other party either to induce the mistake of law or to prevent its correction, shall
not authorize the intervention of equity.”).
Based on the foregoing, we affirm the trial court’s denial of Parrish’s motion
to vacate the consent order.
Judgment affirmed. McFadden, P. J., and Pinson, J., concur.