The Georgia Supreme Court has vacated an injunction that restrained a Mississippi law firm from advertising about deficiencies at a Stephens County, Georgia, nursing home in an attempt to solicit clients.
The court ruled that the trial court erred in halitng the advertising by McHugh Fuller Law Group of Hattiesburg. PruittHealth had filed a complaint for injunctive relief under the Georgia Uniform Deceptive Trade Practices Act (UDTPA) and petitioned for a temporary restraining order after McHugh Fuller ran a full-page advertisement in a Northeast Georgia local newspaper, the Toccoa Record.
The firm's ad, published on April 17, 2014, discussed that Heritage Healthcare, owned by PruittHealth, had been cited by the government for “deficiencies” in the care of residents, simultaneously inviting those suspecting abuse or neglect of a loved one at the facility to call McHugh Fuller. PruittHealth argued the government citation referenced in the firm's advertisement related to an outdated 2012 survey report, and that a more recent report had found the deficiencies had been resolved. Agreeing, the trial court entered a temporary restraining order against McHugh Fuller the same day the PruittHealth complaint was filed.
McHugh Fuller counter-argued by presenting testimony from an Emory University law school ethics professor, who testified the ad was neither false nor deceptive. Despite the evidence presented by the firm, the trial court concluded the ad was deceptive and therefore violative of the UDTPA.
When McHugh Fuller appealed, the firm specifically requested that the clerk “omit nothing from the record, while PruittHealth asked the court only to include the items submitted through the injunction date, excluding the verified answer, motions and supporting exhibits the firm had filed with the trial court after that date.
The trial court determined the record should include only the materials before the court at the time of the final order, which was issued on the same day as the complaint was filed. Disagreeing, Justice Carol Hunstein, writing for the Georgia Supreme Court, said:
“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. 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. Once such designation has been made, the appellee is permitted to designate for inclusion any materials the appellant has requested be omitted.”
Aside from the advertisement controversy, McHugh Fuller, which also has a location in Charleston, West Virginia, was surrounded by a heated public contention in 2011, when ABC News reported that partner Michael Fuller purchased a Learjet from Segal Law Firm of Charleston. The Segal Firm, which received more than $1 million for the business aircraft, is owned by West Virginia Supreme Court Justice Robin Davis' husband, Scott Segal. Interestingly, one of McHugh Fuller's 2014 clients received a $40 million jury verdict, which was upheld by Davis, who wrote the majority opinion.
The Georgia Supreme Court opinion can be found here. The case is McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC.