FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, 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/
March 11, 2015
In the Court of Appeals of Georgia A14A2039. BUTTACAVOLI et al. v. OWEN, GLEATON, EGAN, JONES & SWEENEY LLP et al.
MILLER, Judge.
Michelle Buttacavoli filed suit individually and on behalf of her minor
daughter against the law firm of Owen, Gleaton, Egan, Jones & Sweeney LLP
(“Owen Gleaton”) and one of the firm’s attorneys, Amy J. Kolczak, for actions taken
in an underlying medical malpractice lawsuit that Buttacavoli settled. The trial court
granted summary judgment to Owen Gleaton and Kolczak, and Buttacavoli appeals.
Buttacavoli contends that the trial court erred by holding that (1) this case constituted
a collateral attack on the prior litigation; (2) Georgia’s RICO (Racketeer Influenced
and Corrupt Organizations) Act does not apply to obstruction of justice and
conspiracy to commit perjury claims; and (3) she cannot proceed with her state law invasion of privacy claim based on violations of the Health Insurance Portability and
Accountability Act (“HIPAA”) because there is no private cause of action under
HIPAA. For reasons that follow, we affirm.
Summary judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56
(c). On appeal from a grant of summary judgment, we apply a de novo standard of
review and view the evidence, and all reasonable conclusions and inferences drawn
from it, in the light most favorable to the nonmovant. Walter R. Thomas Assoc., Inc.
v. Media Dynamite, Inc., 284 Ga. App. 413, 413-414 (643 SE2d 883) (2007).
So viewed, the evidence shows that Buttacavoli filed a medical malpractice
lawsuit in Bartow County for treatment related to the premature birth of her
daughter.1 The lawsuit named the hospital, the obstetrical group, and a nurse/midwife
as defendants. Owen Gleaton and Kolczak represented the non-hospital defendants
in that lawsuit, and they identified Dr. Gilbert Webb as one of the expert witnesses
they intended to call at trial. Dr. Webb had provided pre-delivery medical services to
Buttacavoli and her daughter.
1 Buttacavoli filed the suit individually and on behalf of her daughter.
2 During the Bartow County litigation, the trial court issued a protective order
that placed conditions on the defendants’ ability to interview Dr. Webb. Specifically,
the defendants were required to send written notice to Buttacavoli’s attorney prior to
interviewing Dr. Webb; Buttacavoli and her attorney were permitted to attend all
interviews; and the defendants were required to keep all heath care information
obtained in such interviews private. Despite this order, Kolczak met privately with
Dr. Webb prior to the doctor’s scheduled deposition.
According to Buttacavoli’s attorney, he arrived for Dr. Webb’s deposition
approximately 20 minutes early and was told that Kolczak was meeting privately with
Dr. Webb. Buttacavoli’s attorney had not been informed of the meeting or invited to
attend. During the deposition, Dr. Webb testified that he met with Kolczak for 10 or
15 minutes before the deposition started and that they discussed the case for about
half of that time. Dr. Webb said that Kolczak had set up the meeting. Buttacavoli
subsequently contended that Kolczak’s private meeting with Dr. Webb violated the
trial court’s protective order and sought sanctions.
During the hearing on Buttacavoli’s motion for sanctions, Kolczak testified that
she arrived approximately 20 minutes early for Dr. Webb’s deposition and was
escorted back to inspect the space where the deposition was to be held. Kolczak
3 testified that she ran into Dr. Webb in the hallway and told him that she could not
discuss his care and treatment of Buttacavoli, but did inform him of the trial date and
that she would need to call him as a witness. She also told him that the allegations of
the complaint remained the same. According to Kolczak, the encounter lasted less
than 15 minutes. Kolczak testified that she did not invite counsel for Buttacavoli or
the hospital to attend because it was not a meeting.
The Bartow County trial court granted Buttacavoli’s motion for sanctions,
concluding that Kolczak had violated the protective order and that she had provided
testimony that was not credible when she said that only two of the fifteen minutes
spent with Dr. Webb prior to his deposition involved any discussion of the case.
Because Dr. Webb had been a treating physician, providing approximately 30 days
of medical care and treatment to Buttacavoli and her daughter, the trial court
determined that it could not merely exclude his testimony as a sanction without
penalizing Buttacavoli. Instead, after finding that Kolczak had willfully violated the
protective order and done so in bad faith, the trial court struck the answer of the non-
hospital defendants, entering a default judgment against those defendants as if no
answer had been filed. As a result, the non-hospital defendants would be allowed to
4 participate at trial on the issue of damages, but could not contest any issues of liability.
While that decision was on appeal , Buttacavoli made a settlement demand of
$2,000,000 to the non-hospital defendants. That offer was accepted, and the parties
negotiated and signed a settlement agreement.
Two years later, Buttacavoli filed the instant suit against Owen Gleaton and
Kolczak in Fulton County, asserting claims for fraud and deceit, conspiracy to
defraud, invasion of privacy, and violations of Georgia RICO. The allegations involve
communications that Owen Gleaton and Kolczak had with Dr. Webb prior to his
deposition in the Bartow County litigation and false testimony given by Dr. Webb
during that deposition. Specifically, the complaint alleges that Dr. Webb testified that
he had not been asked to serve as an expert witness, that he had not provided any
services to Owen Gleaton, and that his communications with Owen Gleaton were
limited to three telephone calls. The complaint further alleges that Kolczak failed to
correct any of these false statements on the record; that Owen Gleaton and Kolczak
created false facts and opinions regarding Buttacavoli’s medical condition and the
cause of the premature delivery of her daughter; and that Owen Gleaton and Kolczak
solicited Dr. Webb to offer these fabrications during his deposition.
5 Following discovery in this case, Owen Gleaton and Kolczak filed a motion for
summary judgment. The trial court granted the motion, concluding that Buttacavoli’s
lawsuit was a collateral attack on the settlement agreement entered in the Bartow
County litigation, Georgia does not recognize an independent cause of action for
perjury or conspiracy to commit perjury, and there is no private cause action under
HIPAA. Buttacavoli appeals.
1. Buttacavoli contends that this litigation is not a collateral attack on the prior
litigation because the defendants are not the same and the current litigation seeks
damages for a tort not at issue in the prior litigation. We disagree because the trial
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FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, 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/
March 11, 2015
In the Court of Appeals of Georgia A14A2039. BUTTACAVOLI et al. v. OWEN, GLEATON, EGAN, JONES & SWEENEY LLP et al.
MILLER, Judge.
Michelle Buttacavoli filed suit individually and on behalf of her minor
daughter against the law firm of Owen, Gleaton, Egan, Jones & Sweeney LLP
(“Owen Gleaton”) and one of the firm’s attorneys, Amy J. Kolczak, for actions taken
in an underlying medical malpractice lawsuit that Buttacavoli settled. The trial court
granted summary judgment to Owen Gleaton and Kolczak, and Buttacavoli appeals.
Buttacavoli contends that the trial court erred by holding that (1) this case constituted
a collateral attack on the prior litigation; (2) Georgia’s RICO (Racketeer Influenced
and Corrupt Organizations) Act does not apply to obstruction of justice and
conspiracy to commit perjury claims; and (3) she cannot proceed with her state law invasion of privacy claim based on violations of the Health Insurance Portability and
Accountability Act (“HIPAA”) because there is no private cause of action under
HIPAA. For reasons that follow, we affirm.
Summary judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56
(c). On appeal from a grant of summary judgment, we apply a de novo standard of
review and view the evidence, and all reasonable conclusions and inferences drawn
from it, in the light most favorable to the nonmovant. Walter R. Thomas Assoc., Inc.
v. Media Dynamite, Inc., 284 Ga. App. 413, 413-414 (643 SE2d 883) (2007).
So viewed, the evidence shows that Buttacavoli filed a medical malpractice
lawsuit in Bartow County for treatment related to the premature birth of her
daughter.1 The lawsuit named the hospital, the obstetrical group, and a nurse/midwife
as defendants. Owen Gleaton and Kolczak represented the non-hospital defendants
in that lawsuit, and they identified Dr. Gilbert Webb as one of the expert witnesses
they intended to call at trial. Dr. Webb had provided pre-delivery medical services to
Buttacavoli and her daughter.
1 Buttacavoli filed the suit individually and on behalf of her daughter.
2 During the Bartow County litigation, the trial court issued a protective order
that placed conditions on the defendants’ ability to interview Dr. Webb. Specifically,
the defendants were required to send written notice to Buttacavoli’s attorney prior to
interviewing Dr. Webb; Buttacavoli and her attorney were permitted to attend all
interviews; and the defendants were required to keep all heath care information
obtained in such interviews private. Despite this order, Kolczak met privately with
Dr. Webb prior to the doctor’s scheduled deposition.
According to Buttacavoli’s attorney, he arrived for Dr. Webb’s deposition
approximately 20 minutes early and was told that Kolczak was meeting privately with
Dr. Webb. Buttacavoli’s attorney had not been informed of the meeting or invited to
attend. During the deposition, Dr. Webb testified that he met with Kolczak for 10 or
15 minutes before the deposition started and that they discussed the case for about
half of that time. Dr. Webb said that Kolczak had set up the meeting. Buttacavoli
subsequently contended that Kolczak’s private meeting with Dr. Webb violated the
trial court’s protective order and sought sanctions.
During the hearing on Buttacavoli’s motion for sanctions, Kolczak testified that
she arrived approximately 20 minutes early for Dr. Webb’s deposition and was
escorted back to inspect the space where the deposition was to be held. Kolczak
3 testified that she ran into Dr. Webb in the hallway and told him that she could not
discuss his care and treatment of Buttacavoli, but did inform him of the trial date and
that she would need to call him as a witness. She also told him that the allegations of
the complaint remained the same. According to Kolczak, the encounter lasted less
than 15 minutes. Kolczak testified that she did not invite counsel for Buttacavoli or
the hospital to attend because it was not a meeting.
The Bartow County trial court granted Buttacavoli’s motion for sanctions,
concluding that Kolczak had violated the protective order and that she had provided
testimony that was not credible when she said that only two of the fifteen minutes
spent with Dr. Webb prior to his deposition involved any discussion of the case.
Because Dr. Webb had been a treating physician, providing approximately 30 days
of medical care and treatment to Buttacavoli and her daughter, the trial court
determined that it could not merely exclude his testimony as a sanction without
penalizing Buttacavoli. Instead, after finding that Kolczak had willfully violated the
protective order and done so in bad faith, the trial court struck the answer of the non-
hospital defendants, entering a default judgment against those defendants as if no
answer had been filed. As a result, the non-hospital defendants would be allowed to
4 participate at trial on the issue of damages, but could not contest any issues of liability.
While that decision was on appeal , Buttacavoli made a settlement demand of
$2,000,000 to the non-hospital defendants. That offer was accepted, and the parties
negotiated and signed a settlement agreement.
Two years later, Buttacavoli filed the instant suit against Owen Gleaton and
Kolczak in Fulton County, asserting claims for fraud and deceit, conspiracy to
defraud, invasion of privacy, and violations of Georgia RICO. The allegations involve
communications that Owen Gleaton and Kolczak had with Dr. Webb prior to his
deposition in the Bartow County litigation and false testimony given by Dr. Webb
during that deposition. Specifically, the complaint alleges that Dr. Webb testified that
he had not been asked to serve as an expert witness, that he had not provided any
services to Owen Gleaton, and that his communications with Owen Gleaton were
limited to three telephone calls. The complaint further alleges that Kolczak failed to
correct any of these false statements on the record; that Owen Gleaton and Kolczak
created false facts and opinions regarding Buttacavoli’s medical condition and the
cause of the premature delivery of her daughter; and that Owen Gleaton and Kolczak
solicited Dr. Webb to offer these fabrications during his deposition.
5 Following discovery in this case, Owen Gleaton and Kolczak filed a motion for
summary judgment. The trial court granted the motion, concluding that Buttacavoli’s
lawsuit was a collateral attack on the settlement agreement entered in the Bartow
County litigation, Georgia does not recognize an independent cause of action for
perjury or conspiracy to commit perjury, and there is no private cause action under
HIPAA. Buttacavoli appeals.
1. Buttacavoli contends that this litigation is not a collateral attack on the prior
litigation because the defendants are not the same and the current litigation seeks
damages for a tort not at issue in the prior litigation. We disagree because the trial
court properly determined that the present litigation constitutes an unauthorized
collateral attack on the settlement in the Bartow County litigation.
“An action for damages based upon alleged perjury is in the nature of a
collateral attack on the previous judgment. Under Georgia law, unless a judgment is
void on its face, it may not be attacked collaterally. OCGA § 9-11-60 (a)[.]” (Citation
omitted.) Shepard v. Epps, 179 Ga. App. 685, 686 (1) (347 SE2d 289) (1986).
Because alleged perjury in a prior case would not render the judgment therein void
on its face, it necessarily follows that the judgment from the prior case should be
subject only to a direct rather than a collateral attack. Id. Accordingly, “[w]here a
6 judgment has allegedly been infected by perjury, the remedy is the institution of a
direct attack upon that judgment[.] Id.
“If one is dissatisfied with a judgment one does not merely file a new action
against the other party or his counsel.” (Citation omitted.) Dean v. Schreeder,
Wheeler & Flint, 222 Ga. App. 426, 429 (1) (474 SE2d 648) (1996). Instead, one
must attack the prior judgment by a direct proceeding in the trial court where the prior
suit was litigated. See Richardson v. Simmons, 245 Ga. App. 749, 749-750 (538 SE2d
830) (2000) (suit asserting claims for spoliation of evidence, fraud, breach of legal
and fiduciary duty, RICO violation, and abusive litigation, which were all based on
allegations that the defendants conspired to alter or destroy evidence and used these
tactics to prevent plaintiffs from obtaining judgments against defendants in the prior
malpractice suits, constituted collateral attack on prior judgments).
All of Buttacavoli’s claims against Owen Gleaton and Kolczak are an effort to
increase the amount she received for her injuries and the injuries to her daughter in
the settlement of the Bartow County litigation. Buttacavoli agreed to that settlement
with full knowledge that the trial court in Bartow County had imposed the ultimate
sanction of striking the answer of the non-hospital defendants because it concluded
that Kolczak had “tampered with the merits of the case by willfully violating the clear
7 order of th[e] Court.” As shown by the deposition of Dr. Webb and the motion for
sanctions hearing in the Bartow County litigation, Buttacavoli knew by 2010 that
Owen Gleaton and Kolczak had communicated with Dr. Webb prior to his deposition
about her care and treatment and Buttacavoli believed at that time that Owen Gleaton
and Kolczak had provided Dr. Webb with a fabricated theory of the case that he then
adopted and used in his deposition. Because that knowledge and belief form the basis
for Buttacavoli’s allegations in the current litigation in Fulton County, we must
conclude that the present litigation constitutes an unauthorized collateral attack on the
settlement in the Bartow County litigation. See Zepp v. Toporek, 211 Ga. App. 169,
170-171 (1) (b) (438 SE2d 636) (1993); see also Richardson, supra, 245 Ga. App. at
749-750. Accordingly, we affirm the trial court’s grant of summary judgment to
Owen Gleaton and Kolczak.
2. Based on our holding in Division 1, we need not address Buttacavoli’s
remaining claims of error.
Judgment affirmed. Doyle, P. J., and Dillard, J., concur.