JASON PARRISH v. ST. JOSEPH'S/CANDLER HEALTH SYSTEM, INC.

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-

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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).

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 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:

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 [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

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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.

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