author: Andrews, Judge.

text:
    A91A1937.
    BEENE v. THE STATE.
    (415 SE2d 545)
   Andrews, Judge.

Beene was found guilty by a jury of two counts of first degree arson and one count of insurance fraud, arising out of a fire which destroyed Beene’s residence and several vehicles.

1. In his first enumeration of error, Beene, an indigent, claims the trial court erred by denying his pre-trial motion for funds to purchase the transcript of his prior civil trial involving the same issues. He argued at the hearing on the motion that the civil trial transcript might be used for cross-examination and impeachment of prosecution witnesses who testified at the civil trial. Other than the denial of the motion, Beene does not make any claim that he was harmed at trial by not having access to the transcript, nor does he point to any portion of the record to demonstrate such harm. See Howard v. State, 200 Ga. App. 188, 190 (407 SE2d 769) (1991) (burden on party alleging error to show it affirmatively by the record). Without deciding whether Beene adequately established he was entitled to be provided with a copy of the transcript, there can be no reversible error where no harm is shown. Gann v. State, 190 Ga. App. 82, 85-87 (378 SE2d 369) (1989).

2. In his second enumeration-, Beene argues that the trial court erred by admitting into evidence, over defendant’s best evidence objection, a photocopy of a letter addressed from a co-defendant to the Georgia Insurance Commissioner claiming that Beene’s house had been accidentally destroyed by a fire, and complaining that the insurer had been slow to settle the claim. An examiner from the Commissioner’s office testified that he was required to keep the original of the letter, which he had with him, and that the copy offered into evidence was an accurate copy of the original. Without viewing the document, the trial court responded to the defense objection by offering defense counsel the opportunity to compare the original to the copy on cross-examination, which defense counsel later declined to do.

Since the original was available, the interests of the best evidence rule could have been served by comparing it to the copy to insure they were identical. See Layton v. Morrison, 145 Ga. App. 307 (243 SE2d 697) (1978). Though this was not done prior to admission of the copy, we find any error to be harmless under the present facts. There was ample evidence to prove beyond a reasonable doubt that the defendant was guilty of the arson charges. The letter was additional proof that after setting the fire the defendant made a fraudulent insurance claim, and was cumulative of other evidence which alone was sufficient to establish beyond any reasonable doubt that the defendant was guilty of insurance fraud. Moon v. State, 199 Ga. App. 94, 97 (404 SE2d 273) (1991) (admission of evidence cumulative of other evidence presented at trial cannot constitute reversible error).

3. Thirdly, Beene claims that the trial court erroneously limited cross-examination of a prosecution witness by “rushing” defense counsel on several occasions. The record reflects that the trial court inquired as to how much longer defense counsel intended to cross-examine the witness, and at one point called to counsel’s attention that the subject matter of the cross-examination appeared to be repetitious. Nowhere does the record reflect that the trial court directed defense counsel to restrict his cross-examination. If counsel felt rushed by these comments and may have voluntarily abandoned or limited the cross-examination, this provides no basis for a claim of error. Johnson v. State, 158 Ga. App. 333, 334 (280 SE2d 379) (1981). We find no abridgment of the defendant’s right to confront the witnesses against him, and subject them to a thorough and sifting cross-examination. OCGA § 24-9-64.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Decided February 17, 1992.

Samuel C. Finster, Sr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, James D. Franklin, Assistant District Attorney, for appellee.

         Though it is apparent the state intended to introduce this document under OCGA § 24-5-26 as a copy of the letter made in the regular course of business, it failed to establish the necessary foundation to do so.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A2006.
    CANTRELL v. ALLSTATE INSURANCE COMPANY.
    (415 SE2d 711)
   Sognier, Chief Judge.

Allstate Insurance Company brought a declaratory judgment action to determine its obligations to its insured Lloyd Cantrell concerning a separate lawsuit previously filed by others against Cantrell. Allstate prevailed on its motion for summary judgment, and Cantrell appeals.

Appellant is an insured under a homeowners policy issued by appellee. In July 1990 Gene Naugher, William E. Hubbard, and Sue Hubbard Burke brought suit against appellant and two other defendants asserting claims for false imprisonment, malicious prosecution, and conspiracy, and seeking general and punitive damages (hereinafter referred to as the “Naugher suit”). When appellee was notified of the Naugher suit, it issued a reservation of rights letter to appellant and subsequently filed this action to determine its obligations to defend appellant and cover the claim.

The policy provides for liability coverage for “all sums arising from an accidental loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage covered by [the liability section] of the policy,” and excludes from liability coverage “any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person.” “Bodily injury” is defined as “bodily injury, sickness or disease, including required care, loss of services and resulting death.” The trial court concluded that these provisions excluded the Naugher suit from coverage under the policy.

Appellant contends material fact questions remain concerning the nature of the claims asserted in the Naugher suit and the adequacy of his notice to appellee so as to preclude the grant of summary judgment. We disagree, as we find the policy language clearly excludes coverage for the claim at issue, and thus hold the question of notice is not material.

An insurer’s “ ‘duty to defend is determined by the [insurance] contract; and since the contract obligates the insurer to defend claims asserting liability under the policy[,] even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted.’ [Cit.]” (Emphasis and footnote omitted.) Great American Ins. Co. v. McKemie, 244 Ga. 84, 85-86 (259 SE2d 39) (1979). Contrary to appellant’s contentions, the material fact question in this declaratory judgment action is not whether the Naugher suit has merit but whether the suit alleges a claim that is covered by the policy. St. Paul Fire &c. Ins. Co. v. Mitchell, 164 Ga. App. 215, 216 (1) (296 SE2d 126) (1982). “[A] distinction [is] drawn between groundless suits and actions which, even if successful would not be within the policy coverage,” (punctuation and citations omitted), Great American Ins., supra at 85, and the insurer is only obligated to defend the former. Id.

Decided February 17, 1992.

Harp & Associates, B. Seth Harp, Jr., for appellant.

Page, Scrantom, Harris & Chapman, Richard A. Marchetti, for appellee.

The Naugher suit plaintiffs clearly and unequivocally manifest not only in their pleadings but also in their depositions and through their attorneys’ statements at hearings that their complaint asserts claims only for false imprisonment and malicious prosecution, both of which are intentional acts. See Williams v. Smith, 179 Ga. App. 712, 713 (2) (348 SE2d 50) (1986) (false imprisonment held to be an intentional tort); Munford, Inc. v. Anglin, 174 Ga. App. 290, 293 (2) (329 SE2d 526) (1985) (tort of malicious prosecution is not governed by tort of negligence, but rather requires proof of malice). Moreover, since the Naugher suit plaintiffs assert claims only for general and punitive damages and advance no allegations of physical harm, their claims clearly cannot be considered to seek damages for “bodily injury” within the meaning of the policy provisions. Presidential Hotel v. Canal Ins. Co., 188 Ga. App. 609, 611 (373 SE2d 671) (1988).

Appellant’s contention that the business pursuits exclusion indicates that non-business actions will be covered is without merit, for that coverage extends only to bodily injury or property damage, neither of which is alleged in the Naugher suit. Further, appellant’s argument that appellee should be required to defend because of the possibility that the Naugher suit complaint might later be amended to allege a cause of action covered by the policy was expressly rejected by the Supreme Court in Great American Ins., supra at 84-85.

Accordingly, we hold the trial court properly granted summary judgment to appellee. See Presidential Hotel, supra at 611-612.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur. Judge Arnold Shulman disqualified.


text:
    A91A2026.
    THE STATE v. HERNANDEZ-CUEVAS.
    (415 SE2d 713)
   Andrews, Judge.

After the defendant was remanded to the trial court for retrial pursuant to a successful habeas corpus petition, the trial court entered an order acquitting the defendant because the State failed to retry him within time limitations specified by the habeas court. The State appeals from the order of acquittal.

The defendant was indicted in Clayton County in 1986 for trafficking in cocaine and giving a false name to a law enforcement officer. In January 1987, the defendant was found guilty by a jury on both charges, and his convictions were affirmed on appeal in Hernandez v. State, 185 Ga. App. 704 (365 SE2d 867) (1988). On May 9, 1990, the Superior Court of Dodge County, where the defendant was serving his sentence, granted the defendant’s petition for a writ of habeas corpus. The habeas court found that under the ruling in Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), which was decided subsequent to Hernandez, supra, and given retroactive application, there was reversible error in the defendant’s trial requiring that the writ of habeas corpus be granted. The habeas court further ordered that “[t]he State shall have 120 days from the date of this order to retry the Petitioner or to release him from custody.” The State appealed the grant of the writ, and the Supreme Court affirmed the habeas court in Scott v. Hernandez-Cuevas, 260 Ga. 466 (396 SE2d 900) (1990), decided on October 18, 1990.

On November 5, 1990, the habeas court signed a judgment on the remittitur transmitted from the Supreme Court and in the judgment ordered “that the Petitioner be released from custody within 60 days from the date of this order unless he is transported to the Clayton County Jail to stand trial for the underlying charges involved in this action within said 60 days.” Pursuant to an order entered by the Clayton County trial judge on November 19, 1990, the defendant was transported to the Clayton County Jail.

In March 1991, the defendant filed two motions in the trial court claiming that the May 1990 order of the habeas court requiring the State to retry him within 120 days was similar to a demand for trial under OCGA § 17-7-170, and that the State’s failure to retry him within that period denied him due process of law and required that he be released from custody or acquitted. On April 11, 1991, the trial court entered an order on the motions ruling that the habeas court’s order of November 5, 1990, “direct[ed] the Defendant’s release from custody unless transported and tried within 60 days of November 5, 1990.” The trial court further held that the failure to retry the defendant within the 60-day period was the equivalent of the State’s failure to comply with a statutory demand for speedy trial under OCGA § 17-7-170. Accordingly, the trial court treated the motions as a plea in bar, and ordered the defendant acquitted of the charges in the indictment. See State v. Benton, 246 Ga. 132 (269 SE2d 470) (1980).

We find the trial court erred in treating the motions as the equivalent of an OCGA § 17-7-170 plea in bar, and in acquitting the defendant of the charges. The issue for the habeas court was whether the defendant’s confinement was legal at the time of the hearing. Stynchcombe v. Hardy, 228 Ga. 130, 131 (184 SE2d 356), (1971); Taylor v. Ault, 229 Ga. 572, 573 (192 SE2d 899) (1972). Where the writ of habeas corpus is granted for a defect in the trial, the effect is not to exonerate the defendant of the charges in the indictment and entitle him to be released, but to invalidate the defendant’s confinement under the existing judgment and sentence, and remand him to the trial court for retrial. See Brown v. Smith, 223 Ga. 433, 434 (156 SE2d 28) (1967); Patton v. State, 111 Ga. App. 853, 854 (143 SE2d 518) (1965).

Under these circumstances, the habeas court has the authority to order that the defendant be remanded to the custody of the trial court, and that unless this transfer is accomplished within a reasonable time the defendant may be released from his present confinement. See OCGA § 9-14-48 (d); Balkcom v. Vickers, 220 Ga. 345, 346 (138 SE2d 868) (1964) (judgment granting writ of habeas corpus for denial of counsel at sentencing contained provision that defendant be released from present confinement if trial court did not take custody of him within ten days). However, it is beyond the authority of the habeas court to direct that the defendant be retried by the trial court within a certain period of time. See Balkcom v. Hurst, 220 Ga. 405-406 (139 SE2d 306) (1964) (habeas court without authority to make any disposition other than to remand the defendant to the custody of the trial court); Balkcom v. Williams, 220 Ga. 359, 360-361 (138 SE2d 873) (1964) (habeas court’s attempt to direct trial court to give defendant credit for time served was beyond its authority and a nullity).

At least as to the order of November 5, 1990, it is not clear that the habeas court intended to direct that the defendant be released by the trial court unless he was actually retried within the stated time period. Nevertheless, any attempt to so direct the trial court was a nullity. The State’s failure to retry the defendant within the time limits stated by the habeas court was not a basis for his acquittal. See Ingram v. Rutledge, 245 Ga. 839, 840 (268 SE2d 333) (1980). Appellee’s motion to dismiss the appeal is denied.

Decided February 17, 1992.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellant.

Ellison & Moore, Coatsey Ellison, Cowen & Cowen, Martin L. Cowen III, for appellee.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.

       Since the defendant’s motions were not properly a plea in bar, the State’s authority to appeal from the trial court’s order is not found under OCGA § 5-7-1 (3). However, in addition to the provisions of OCGA § 5-7-1, the state may directly appeal from an illegal order or judgment. State v. Bilal, 192 Ga. App. 185 (384 SE2d 253 ) (1989).


author: McMurray, Presiding Judge.

text:
    A92A0066.
    LONGENBACH v. THE STATE.
    (415 SE2d 546)
   McMurray, Presiding Judge.

Defendant was charged with burglary in Count 1 of a two count indictment. In Count 2, he was charged with the offense of peeping Tom in that defendant “did . . . unlawfully on or about the premises of [the victim] remain in the bedroom of the [victim] for the purpose of committing an act invading the privacy of the [victim], to wit: masturbating while standing over the said [victim].”

At a jury trial, the victim testified, in pertinent part, as follows: “[During the evening of November 13, 1990, after] I had put my children to bed, I went to bed. And I woke up because something was hitting me in the face. I looked up, and saw [defendant] standing beside my bed with his hand on himself and he was jacking off on top of me. I jumped up and started screaming and he turned around and started running towards the front door, I followed him out to the front door. He went out my front door and went into the door across the way to the other side of the duplex.”

Defendant was found not guilty of burglary and guilty of peeping Tom. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his special and general demurrers, arguing “the indictment . . . fails to set out allegations which are . . . sufficient to support the charge ‘peeping Tom.’ ” In other words, defendant argues the lewd act alleged in the indictment does not constitute the crime of peeping Tom. This enumeration is without merit.

The gravamen of the offense of peeping Tom is being on the premises of another for the purpose of spying or invading privacy. See Lemon v. State, 235 Ga. 74, 76 (3) (218 SE2d 818); Chance v. State, 154 Ga. App. 543 (1) (268 SE2d 737). In the case sub judice, defendant was charged with the offense of peeping Tom because he “did . . . unlawfully on or about the premises of [the victim] remain in the bedroom of the [victim] for the purpose of committing an act invading the privacy of the [victim].” These allegations support the charge that defendant committed the offense of peeping Tom. OCGA § 16- ■ 11-61.

Decided February 17, 1992.

John E. Webster, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

2. Defendant challenges the sufficiency of the evidence, arguing the evidence does not show that he committed the offense of peeping Tom. We do not agree.

The victim’s testimony that defendant entered her bedroom and stood by the victim’s bed under cover of darkness was sufficient to authorize a finding that defendant entered the victim’s premises with the intent to invade the victim’s privacy. This proof was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the offense peeping Tom. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. Defendant contends the finding that he is not guilty of burglary is inconsistent with the finding that he is guilty of peeping Tom. This contention is without merit. The inconsistent verdict rule has been abolished in criminal cases. Smashum v. State, 261 Ga. 248, 249 (2) (403 SE2d 797).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A91A1552.
    LIFE CARE AMBULANCE, INC. v. HOSPITAL AUTHORITY OF GWINNETT COUNTY.
    (415 SE2d 502)
   Andrews, Judge.

Life Care Ambulance, Inc. (Life Care) sued the Hospital Authority of Gwinnett County (Gwinnett Hospital) seeking damages under three causes of action. First, Life Care alleged that Gwinnett Hospital breached a contract for convalescent ambulance services. Second, in a claim based on quantum meruit in the absence of an express contract, Life Care sought to collect the value of convalescent ambulance services rendered to Gwinnett Hospital. Additionally, Life Care claimed that Gwinnett Hospital tortiously interfered with the sale of the ambulance business to third parties. The trial court granted summary judgment in favor of Gwinnett Hospital as to all three causes of action, and Life Care appeals claiming various factual issues preclude summary judgment. Although the trial court’s order grants summary judgment with respect to the three counts of the complaint in which the three causes of action were set forth, all three causes of action were subsequently embodied in the pretrial order (which recited the pending motion for summary judgment) entered prior to the grant of summary judgment. Since the pretrial order supersedes the pleadings and controls the subsequent scope and course of the action, the effect of the order granting summary judgment was to eliminate these claims from the existing pretrial order. Jacobsen v. Muller, 181 Ga. App. 382, 384 (352 SE2d 604) (1986).

Gwinnett Hospital and Life Care entered into a written contract for ambulance service which provided that Life Care “desires to provide and furnish convalescent transport” for the hospital “for a term of one (1) year beginning on the 1st day of July, 1986, and ending on the 30th day of June, 1987,” unless renewed as provided in the contract. The contract stated that Life Care “shall provide and furnish the primary convalescent services for all patients of [Gwinnett Hospital]. If for any reason [Life Care] is unable to respond to any call within the time specified herein, [Life Care] shall dispatch the call to a secondary transport service designated by [Gwinnett Hospital] . . . [Life Care] will respond to calls for convalescent transport in a timely manner and as rapidly as possible and in all cases shall respond within thirty (30) minutes for non-emergency calls and fifteen (15) minutes for urgent calls.” Under the contract, Life Care invoiced Gwinnett Hospital for ambulance services rendered, and the hospital paid Life Care 60 percent of the invoiced amount. Gwinnett Hospital was responsible for billing and collecting from the patient, and bore the loss if the patient failed to pay the bill. As to renewal, the contract provided that Gwinnett Hospital “shall have the option to renew the Agreement for four (4) successive periods of one (I) year each by giving [Life Care] notice in writing of its intention to exercise such option not less than sixty (60) days prior to the expiration of the then current term.” The contract also provided that if the current owners of Life Care sold the business Gwinnett Hospital had the option to void the contract.

It is undisputed that Gwinnett Hospital did not give the written notice required by the contract for renewal. Nevertheless, the clear deposition testimony of both parties shows that they intended to renew the contract after the initial one year period expired, and that they both considered themselves bound by the terms of the written contract and continued to perform in accordance with the terms of that contract from its inception on July 1, 1986 through December 3, 1990, when Gwinnett Hospital ceased to do business with Life Care after the original owners sold the business. Whether this evidence establishes an oral agreement to renew the written contract, or an oral contract incorporating the terms of the previous written agreement, in either case the facts establish, as a matter of law, that the parties agreed to be bound by the express provisions of the contract during their business relationship.

The construction of a contract, unambiguous on its face, is a matter of law for the court. OCGA § 13-2-1. Even in cases where some ambiguity exists, no jury question is presented unless the ambiguity remains after the court has applied the rules of contract construction. Hirschfield v. Continental Cas. Co., 199 Ga. App. 654, 655 (405 SE2d 737) (1991). The trial court concluded that under the contract Life Care was not the exclusive provider of convalescent ambulance service, therefore Gwinnett Hospital did not breach the agreement if it referred some of its convalescent transports to a secondary ambulance service. The contract provided that Life Care would provide the primary convalescent ambulance service for all of Gwinnett Hospital’s patients. If for any reason Life Care was unable to timely respond to a convalescent transport, then Life Care was responsible to dispatch the call to a secondary ambulance service. This arrangement clearly contemplated that all calls for convalescent ambulance service were to be routed to Life Care as the primary transporter, and a secondary transporter would be utilized only if Life Care was unable to timely respond. Although the contract refers to a 30 minute response time for non-emergency calls and a 15 minute response time for urgent calls, we find no ambiguity with respect to the description of convalescent ambulance service covered by the contract. Both the context in which the term “urgent” was used in the contract, and extrinsic proof of its meaning within the business showed that the term “urgent call” did not refer to emergency or a non-convalescent ambulance service, but rather to a type of convalescent transport requiring a shorter response time. OCGA § 13-2-2 (2), (4). Factual questions exist as to whether and to what extent Gwinnett Hospital referred convalescent transports directly to other ambulance services in violation of the agreement with Life Care. The trial court erred to the extent it granted summary judgment to Gwinnett Hospital on Life Care’s claim for breach of the express contract for convalescent ambulance services.

Life Care alleged that if no contract existed, it was entitled to 85 percent of the invoiced amount of convalescent ambulance service, which was the customary percentage it and other ambulance services had received prior to the 60 percent agreement under which Life Care was made the primary transporter for all convalescent patients. By its cause of action in quantum meruit, Life Care sought to recover the additional value of convalescent ambulance service represented by the difference between 85 percent of the invoices and the amount it was paid by Gwinnett Hospital at the 60 percent rate. “There cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law imposes and raises a promise.” (Punctuaion and citations omitted.) Gilbert v. Edmondson, 193 Ga. App. 593, 594 (388 SE2d 713) (1989). Since an express contract existed between Life Care and Gwinnett Hospital governing convalescent ambulance services, and providing that Life Care be paid 60 percent of the amount invoiced to the hospital, the trial court correctly granted summary judgment to the hospital on Life Care’s quantum meruit claim for the additional value of such services. Id.

The trial court also properly granted summary judgment in favor of Gwinnett Hospital on Life Care’s claim that the hospital tortiously interfered with the sale of Life Care to third parties. The record shows that two potential purchasers of Life Care asked Gwinnett Hospital about the status of Life Care’s contract for convalescent ambulance service with the hospital. The hospital informed Dr. James Jackson that the agreement was valid. In discussions with the hospital and by reading the agreement, Dr. Jackson learned that the agreement provided it could be terminated unless renewed on a yearly basis, and that the hospital had the option to void the agreement upon the sale of the business. Mr. Karr, the hospital’s chief operating officer, informed Dr. Jackson, who also worked in the hospital’s emergency room, that the matter would have to be discussed with other authorities at the hospital. In his deposition, Dr. Jackson indicated he elected not to pursue the purchase because of other business opportunities and because based on. the provisions in the agreement, there were no assurances that the contract would continue.

In January 1990, Life Care, through its attorney, threatened to sue the hospital over convalescent ambulance services and a claim that the hospital interfered with the sale of the business to Dr. Jackson. Karr’s testimony reflects that in February 1990 he informed another potential purchaser, James Justice, that the hospital would not automatically exercise its option to void the contract if he purchased Life Care. The record reflects that the hospital agreed, at the request of Justice, to an advance extension of the contract through June 30, 1990, on condition that Life Care would agree to release its claims against the hospital. Karr informed Justice that after the sale, in the absence of such a release, the hospital would take bids from Life Care and any competitors, and a new contract would be established with the transporter making the best bid.

Decided February 7, 1992

Reconsideration denied February 18, 1992

“ Tn establishing a cause of action for malicious (or tortious) interference with business relations, a plaintiff . . . must demonstrate that the defendant ... (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plainciff, and (4) for which the plaintiff suffered some financial injury.’ Hayes v. Irwin, 541 F.Supp. 397, 429 (N. D. Ga. 1982); see NAACP v. Overstreet, 221 Ga. 16, 21 (142 SE2d 816) (1965) , cert. dismissed, 384 U. S. 118, rehg. den., 384 U. S. 981 (1966) .” Integrated &c. Systems v. NEC Home Electronics (USA), 174 Ga. App. 197, 200-201 (329 SE2d 554) (1985). “[T]he principle is generally recognized that a person’s business is property in the pursuit of which he is entitled to protection from tortious interferences by a third person who, in interfering therewith, is not acting in the exercise of some right, such as the right to compete for business. . . .” NAACP v. Overstreet, 221 Ga. 16, 21 (142 SE2d 816) (1965).

The evidence shows that Gwinnett Hospital acted within its rights under the ambulance service agreement with Life Care. The agreement stated that the willingness of the hospital to enter into the contract was “largely based upon the abilities and competence of its sole stockholders and operating officers ...” and that “[a]ny transfer, sale or conveyance of a substantial interest in the business or the introduction or participation of different stockholders or operators shall, at the option of [Gwinnett Hospital], render this Agreement null, void and of no further force and effect.” Given that the hospital reserved the absolute right to void the contract upon the sale of the business, its dealings with the potential purchasers reflect no malicious intent, but rather the legitimate exercise of that right in the best interest of the hospital’s operation. Singleton v. Itson, 192 Ga. App. 78, 80 (383 SE2d 598) (1989); Johnson v. Auto/Mend, 183 Ga. App. 311, 312 (359 SE2d 10) (1987).

Judgment affirmed in part; reversed in part.

Sognier, C. J., and McMurray, P. J., concur.

J. Curtis Hanks, for appellant.

Rowe & McGarity, John M. McGarity, for appellee.

       Though any oral contract between the parties was not performed within a period of one year or less, the Statute of Frauds is not a bar to enforcement. Aside from the issue of whether performance under such an oral agrrement makes it enforceable, the Statute of Frauds was not raised as an affirmative defense in the pleadings, by motion, or in the pretrial order. OCGA §§ 13-5-30; 13-5-31; Brantley Co. v. Simmons, 196 Ga. App. 233, 234 (395 SE2d 656) (1990).


text:
    A91A1652.
    BOEHM et al. v. PROCTOR et al.
    (415 SE2d 490)
   Sognier, Chief Judge.

Arthur Boehm and Harold Downs brought suit against Joseph Proctor and John Acuff seeking injunctive relief and monetary damages for the defendants’ alleged violation of subdivision restrictive covenants. Upon the parties’ cross motions for summary judgment, the trial court granted the defendants’ motion and denied that of the plaintiffs. The plaintiffs appeal.

The material facts are not in dispute. Each appellant owns a home in Oakwood Estates Subdivision, Unit II, in Catoosa County, which was platted and developed in 1975. At that time, the developer recorded certain restrictive covenants (the “covenants”), which are binding on all subsequent owners of the subdivision lots. These covenants provide in pertinent part:

“(1) No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one single-family dwelling ....

“(2) No structure of a temporary character, such as, but not limited to, trailers, basements, tents, shacks, garages, barns, or other outbuilding shall be used on any lot at any time as a residence ....

“(3) Any dwelling erected on any lot or parcel in said subdivision must contain at least 1400 square feet of floor space on main floor

“(6) No building . . . shall be erected on any parcel in said subdivision unless said lot or parcel shall contain at least 11,000 square feet, and have at least 100 feet in width at the front set back line.”

Appellees purchased a platted lot in the subdivision in December 1990 and subdivided it into three separate tracts, each of which met the minimum size requirements of paragraph 6 of the covenants. They acquired the second floor of a conventionally built house, moved it to one of the tracts, and placed it on a concrete and block foundation erected on the site for the house. Appellees then renovated the structure for resale. When completed, the single-story house contained 2,100 square feet, and appellee Acuff averred that its market value equalled or exceeded that of the other houses in the subdivision.

Appellants brought suit to enjoin appellees from subdividing the lot or placing any further or nonconforming structures on it, contending that paragraph 1 precluded subdivision of platted lots and that the house appellees placed on the lot was a “temporary” building in violation of paragraph 2. The trial court held that the house was not a temporary structure, that the reference in paragraph 1 to “lot” was “inconsistent” with the references in other paragraphs to “lot or parcel,” and that paragraph 6 authorized lot subdivision provided the minimum size requirements were met for each resulting parcel.

We affirm. “ ‘It is the general rule that the owner of land has the right to use it for any lawful purpose, and restrictions upon its use must be clearly established and strictly construed.’ [Cit.] . . . ‘Restrictive covenants will be construed to carry out the intention of the parties, if that intention can be ascertained from a consideration of the whole instrument.’ [Cit.]” Corporation &c. of Latter-Day Saints v. Statham, 243 Ga. 448, 449 (254 SE2d 833) (1979). While any doubts as to the scope of the restrictions will be construed in favor of the grantee, Voyles v. Knight, 220 Ga. 305 (138 SE2d 565) (1964), if the manifest intent of the parties can be ascertained from the covenants as a whole, no ambiguity exists and the rule of strict construction need not be applied. Id. at 306.

When the covenants at issue are considered as a whole, it is clear that the intention was to limit use of the property to permanent single-family residences (paragraphs 1, 2) of at least 1,400 square feet on the main floor (paragraph 3) on a lot meeting the minimum size requirements of paragraph 6. Given the rule that any use not expressly prohibited is permitted, Statham, supra, since there is no express restriction against lot subdivision but there is a provision specifying minimum lot sizes, we must conclude that subdivision is permitted provided these minimum lot restrictions are honored. See generally Holbrook v. Davison, 258 Ga. 844, 846 (1) (375 SE2d 840) (1989). Contrary to appellants’ assertions, we find no ambiguity in the differing terms used in paragraphs 1 and 6. Although the use of a “lot” is restricted in paragraph 1 to construction of a single-family residence, paragraph 6 defines the minimum size for a “lot or parcel,” (emphasis supplied), thus authorizing the subdivision of platted lots into parcels meeting the size requirements. See Nakis v. Cross, 246 Ga. 658 (272 SE2d 312) (1980).

Moreover, we disagree with appellants that the house placed by appellees on their subdivided parcel violates the restrictions against temporary structures. The clear import of paragraphs 1 and 2 is to preclude the use of mobile housing and of structures such as garages and barns that are not designed to be used as single-family residences. See Garland v. Carnes, 259 Ga. 263 (379 SE2d 782) (1989). The undisputed evidence shows that appellees placed a conventionally built residence on a permanent foundation constructed on the site and then renovated the structure for use as a single-family dwelling. The fact that the structure was moved from another site does not mean it is of a “temporary character” as described in paragraph 2, because once it was placed on the foundation it became as permanent as any other house. Appellants’ contention that the covenants require residences to be constructed onsite is similarly without merit, as paragraph 1 refers to buildings “erected, altered, [or] placed” (emphasis supplied) on the property. Accordingly, we hold the trial court properly granted appellees’ summary judgment motion.

Decided February 3, 1992

Reconsideration denied February 18, 1992

Hatcher, Johnson & Meaney, James A. Meaney III, for appellants.

Don Moore, Jr., for appellees.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A1915.
    RE/MAX SPECIALISTS, INC. v. KOSAKAI.
    (415 SE2d 698)
   Sognier, Chief Judge.

Michio Kosakai filed suit against Craftmaster Home Corporation and Re/Max Specialists, Inc. to recover an earnest money deposit paid under a contract to purchase a home. Craftmaster voluntarily returned the deposit and was dismissed from the suit. Re/Max filed an answer and counterclaim, claiming entitlement to 52 percent of the real estate commission due under the contract. The trial court granted Kosakai’s motion for summary judgment, and Re/Max appeals.

The trial court granted summary judgment to appellee on the ground that no valid contract for the sale of real estate ever existed, finding there was no meeting of the minds between the parties. We reverse.

In support of his motion for summary judgment, appellee proffered his own affidavit, in which he averred that he made a written offer to purchase real estate through appellant as broker; that the offer had been modified by Craftmaster without the approval or authorization of appellee; and that the contract, which was attached to appellee’s complaint, contained both items inserted or altered by Craftmaster to which he had not assented and alterations proposed by him to which Craftmaster did not agree.

In opposition to appellee’s motion for summary judgment, appellant proffered the affidavit of Kéichi Kimura, one of its real estate agents. The affidavit contains an averment that although appellee’s first offer, as evidenced by the contract attached to appellee’s complaint, had indeed been rejected by Craftmaster and had expired, proposals and counterproposals were exchanged thereafter, culminating in the amended writing attached to appellee’s complaint, the changes in which appellee approved. We note that the initials “MK” clearly appear adjacent to the strikeovers and alterations in those amended paragraphs of the contract attached to appellee’s complaint which appellee avers he never approved. Kimura averred that he personally notified appellee that Craftmaster had accepted his last offer and that he discussed with appellee details of steps required of appellee in performing under the accepted agreement. Kimura also averred that at a later meeting, appellee “did not seem to be in good spirits,” and admitted he wanted to get out of the contract.

Decided February 7, 1992

Reconsideration denied February 18, 1992.

Rice & Keene, Louis F. McDonald, for appellant.

Although parol evidence in this case would be inadmissible to establish a contract for the sale of land, which must be in writing, see OCGA § 13-5-30 (4), or to vary, modify, or contradict the written terms, see Sanders v. Vaughn, 223 Ga. 274 (1) (154 SE2d 616) (1967), in this case there is a writing, taking the transaction at issue out of the statute of frauds. However, it is impossible to ascertain from the face of the document whether the contract attached to appellee’s complaint actually represents a meeting of the minds. Thus, the affidavits from both appellant and appellee were admissible evidence on this issue. See generally Ralston Purina Co. v. Black, 121 Ga. App. 661, 662-663 (175 SE2d 125) (1970).

The issue of whether a valid written contract existed is crucial to the resolution of this case and the evidence is in total conflict as to whether the writing in issue is such a contract. “The Summary Judgment Act does not authorize the trial court to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury. [Cit.] The sole function of the court on a motion for summary judgment is, rather, to determine whether there exists a genuine issue of material fact. [Cits.] In the instant case it is clear that such issues exist. Whatever the ultimate disposition of this case, appellant’s opportunity to have the issues reviewed by a jury should not have been foreclosed.” Scott v. Owens-Illinois, 173 Ga. App. 19, 22-23 (3) (325 SE2d 402) (1984). The trial court erred by granting summary judgment to appellee.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

Robert S. Devins, for appellee.


author: Carley, Presiding Judge.

text:
    A91A1584.
    TOLBERT et al. v. DUCKWORTH et al.
    (415 SE2d 911)
   Carley, Presiding Judge.

Appellant-plaintiffs brought suit, seeking to recover for injuries allegedly resulting from a vehicular collision. The case was tried before a jury, and a verdict was returned in favor of appellee-defendants. Appellants appeal from the judgment entered by the trial court on the jury’s verdict and enumerate as error only the trial court’s giving of a charge on the principle of legal accident.

1. Appellants urge that the giving of a charge on legal accident should no longer be sanctioned.

Although it has been recognized that a charge on legal accident is potentially confusing and misleading to juries and is redundant of the general principles of negligence law, “Georgia has not discarded accident as a proper subject for jury instructions. . . . [Cit.]” Chadwick v. Miller, 169 Ga. App. 338, 342 (1) (312 SE2d 835) (1983). Even assuming that the abolition of the giving of a charge on legal accident is not a matter solely for the Georgia Supreme Court (but see Savannah Elec. Co. v. Jackson, 132 Ga. 559, 562 (4) (64 SE 680) (1909)), it is clear that a majority of this court as presently constituted is not so inclined. See Smoky, Inc. v. McCray, 196 Ga. App. 650, 652 (5) (396 SE2d 794) (1990).

2. Appellant also urges that a charge on legal accident was not authorized by the evidence. “A review of the record shows that there was . . . evidence which would have authorized the jury to find that, notwithstanding appellee[-driver]’s exercise of ordinary reasonable care, he lost control of his [vehicle] on the rain-slick highway [at a point where water was pouring across the road due to insufficient drainage], hydroplaned into the lane of on-coming traffic and struck the vehicle that was being operated by appellant[-driver]. Accordingly, the trial court did not err in giving a charge on the defense of legal accident. [Cit.]” Whitehead v. Coffey, 198 Ga. App. 587 (402 SE2d 311) (1991). See also Jump v. Benefield, 193 Ga. App. 612, 614-615 (2) (388 SE2d 864) (1989); Reed v. Heffernan, 171 Ga. App. 83, 87 (2) (318 SE2d 700) (1984). Appellee-driver’s guilty plea to driving too fast for conditions “did not constitute an irrebuttable admission that the collision was the proximate result of negligence on [his] part, [cit.] . . .” Martini v. Nixon, 185 Ga. App. 328 (1) (364 SE2d 49) (1987). See also Peacock v. Strickland, 198 Ga. App. 406 (1) (401 SE2d 601) (1991); Williams v. Calhoun, 175 Ga. App. 332 (333 SE2d 408) (1985).

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.

Decided January 28, 1992

Reconsideration denied February 4, 1992

Hudson & Montgomery, David R. Montgomery, Kenneth Kalivoda, for appellants.

Carey, Deal, Jarrard & Walker, J. Nathan Deal, McClure, Ramsay & Dickerson, John A. Dickerson, Harben & Hartley, Phillip L. Hartley, for appellees.


author: Judge Arnold Shulman.

text:
    A91A1461.
    SARGENT et al. v. DEPARTMENT OF HUMAN RESOURCES.
    (415 SE2d 918)
   Judge Arnold Shulman.

Samuel and Gloria Sargent filed this action against the Georgia Department of Human Resources (DHR) seeking to recover for injuries sustained by Mr. Sargent when he was beaten by a juvenile who was then under the supervision of William Johnson, a probation officer employed by the DHR and for loss of consortium on the part of the appellant-wife. The complaint was predicated on allegations that Mr. Johnson knew that the juvenile was dangerous to others and was consequently negligent in failing to take him into custody. The DHR denied liability and thereafter moved to dismiss the complaint based on sovereign immunity. By the time that motion was filed, the statute of limitation had run on the personal injury claim, and the appellants accordingly sought an order from the trial court permitting them to amend their complaint to add Johnson as a defendant pursuant to OCGA §§ 9-11-15 and 9-11-21. Following a hearing, the trial court denied this motion and granted the DHR’s motion to dismiss the complaint. This appeal followed.

The appellants concede that this action is barred by the doctrine of sovereign immunity without the presence of the employee for whom liability insurance exists. See Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987). Thus, the sole issue before us is whether the trial court erred in refusing to allow the appellants to add Johnson as a party.

“In order for an additional party to be added to an existing suit by amendment pursuant to OCGA § 9-11-15 . . ., leave of court must first be sought and obtained pursuant to OCGA § 9-11-21. [Cits.] Among the factors to be considered by the trial court in determining whether to allow the amendment are whether the new party will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new party previously. [Cits.]” Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (2) (308 SE2d 211) (1983). The party seeking to add a new party has the evidentiary burden to establish lack of prejudice and excusable delay. See Horne v. Carswell, 167 Ga. App. 229, 230 (306 SE2d 94) (1983).

Decided February 14, 1992.

Fletcher Farrington, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Jennifer L. Hackemeyer, Assistant Attorney General, for appellee.

In denying the appellants’ motion to add Johnson as a party, the trial court stated: “Plaintiffs’ complaint identifies William Johnson. Plaintiffs were aware of his involvement, but did not move to add him as a party for over seven months. Plaintiffs have submitted no excuse for having failed to name and serve the proposed new party previously, nor is any apparent from the record.” Because no transcript of the hearing on the appellants’ motion is included in the record on appeal, “we must assume that the evidence and arguments set forth [at that hearing], in addition to the record before us, were sufficient for the trial court to rule as it did.” Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 (359 SE2d 362) (1987). Accord Hall v. Scott, USA, Ltd., 198 Ga. App. 197 (1) (400 SE2d 700) (1990). Accordingly, we hold that the appellants’ complaint was properly dismissed.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A2042.
    LEWIS v. USELTON et al.
    (416 SE2d 94)
   Birdsong, Presiding Judge.

We granted this appeal of the denial of summary judgment to James W. Lewis in his suit against Peggy J. Uselton and Lloyd W. Uselton for $9,000 attorney fees based on a 40 percent contingent fee agreement, to which the Useltons counterclaimed alleging professional malpractice of attorney Lewis.

The employment contract executed by the Useltons provides: “[Clients agree] that the said James W. Lewis shall have full power and authority to settle, compromise or take such action as he might deem proper. . . .” Lewis- contends this provision gave him absolute power and authority, in his sole discretion, to settle the Useltons’ claims arising from Mrs. Uselton’s injuries in an auto collision. The Useltons contend Mrs. Uselton told appellant that because she had incurred approximately $30,000 in medical expenses and $7,000 in lost wages, she wanted a jury trial if the personal injury defendant DeKalb County would not settle for its insurance policy limits, $50,000. Lewis settled his clients’ claims for $22,500; they repudiated the settlement and discharged Lewis. It is undisputed that Lewis did not seek or obtain authorization from the Useltons for this specific settlement amount.

At the motion to enforce the settlement, Lewis asserted: “I would not have accepted the case . . . unless I had full authority to settle the case . . . and by the way . . . I’m a partner, forty percent, if I thought there was a good chance of getting more, I certainly would not have settled for $22,500.” The settlement was enforced pursuant to Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) without, apparently, considering the obvious parameters noted in King v. King, 199 Ga. App. 496, 499 (4) (405 SE2d 319) as held in Petty v. Complete Auto Transit, 215 Ga. 66, 67 (1) (108 SE2d 697).

In affidavit to his motion for summary judgment, appellant averred: “At no time have I ever stated to [Mr. and Mrs.] Uselton, or to anyone else, that [they] would have any authority over settlement of [their] legal action.” On appeal he asserts again, “Remember, I was a 40 percent partner with the Useltons in the case.” Held,-.

1. In Rogers v. Pettigrew, 138 Ga. 528, 529-530 (75 SE 631), an attorney made an unauthorized settlement at trial. In the attorney’s suit for fees, the jury found for the attorney, but the Supreme Court said: “A litigant has the right to insist that his case be adjudicated according to the established rules of law and procedure. When he instructs his attorney not to compromise his case, the attorney is bound by such instructions, and is not at liberty to violate them. ... If he violates his instruction in this respect, he forfeits all right to compensation. . . . ‘[W]here an agent or attorney is unfaithful to his trust, or violates his instructions, he is not entitled to any compensation.’ [Cit.] The attorney’s . . . zeal and desire to recover something for his client is no excuse for violating her positive instructions.”

The question now is whether appellant’s settlement was authorized so as to relieve him of liability to his clients and allow him to collect his fee. Lewis claims his employment contract gave him the “specific” or “special” authority to settle in his discretion. See Equitable Gen. Ins. Co. v. Johnson, 166 Ga. App. 215 (303 SE2d 757).

In Patterson v. Southern R. Co., 41 Ga. App. 94 (151 SE 818), a compromise was enforced on proof of a long course of dealing in which a party held out his attorney as having authority to compromise his claim, so that the attorney had “apparent” authority based on the acts of the principal towards the third party — which is the true source of “apparent authority” in agency law. See Vandiver v. McFarland, 179 Ga. App. 411 (346 SE2d 854). Unless the client held out the attorney as having such authority, the rule in Georgia prior to Brumbelow, supra, was that “in default of any proof going to show that the settlement was authorized by the attorney’s client, it would not be binding.” Burnett v. Johnston, 45 Ga. App. 667-668 (165 SE 857). Evans v. Atlantic Nat. Bank, 147 Ga. 621 (95 SE 219); Kaiser &c. v. Hancock, 106 Ga. 217 (32 SE 123); Patterson, supra; Johnston v. Starr Piano Co., 27 Ga. App. 425 (108 SE 811).

An attorney is “expressly forbidden by law from receiving anything in discharge of a client’s claim but the full amount in cash”; therefore, prior to Brumbelow, an attorney who settled with another attorney for a sum less than was due, was required at his peril, to ascertain that the attorney was authorized to make such a compromise. Sonnebom & Co. v. Moore Bros., 105 Ga. 497 (1) (30 SE 947). And, “no presumption of . . . authority [arose] from mere acceptance by the plaintiff’s attorney in a pending suit of a sum less than the amount sued for.” Burnett, supra at 667 (1). That an attorney accepted a sum less than the amount of the claim, “raised no presumption, in favor of the [opponent], that the attorney had special authority from his clients to do so”; Sonnebom & Co., supra; Kaiser &c., supra at 219. “[P]roof by the defendant . . . that he has paid to the attorney of record for the plaintiff a sum less than the amount sued for, as a full settlement . . . raises no presumption that the attorney was authorized by the plaintiff to make such a settlement. Consequently, under such circumstances, the burden is upon the defendant to show the authority of the plaintiff’s attorney to make the settlement which he sets up as a satisfaction of the plaintiff’s claim.” (Emphasis supplied.) Id. at 217.

Under the law prior to Brumbelow, attorneys could generally be assured that a compromise by opposing counsel was in fact authorized, not because there was “apparent authority” of an attorney to compromise his client’s claim, defense or property rights, but because there was not. Since unauthorized settlements generally were unenforceable, generally only authorized settlements were made.

It is significant that when the law was as stated in Evans, supra; Kaiser, supra; Sonnebom & Co., supra; Burnett, supra; Patterson, supra; Johnston, supra; and see Equitable Gen. Ins. Co., supra at 218 (2), there was almost never a necessity to cite those cases. Unless an innocent party suffered actual detriment in reliance on an unauthorized settlement (see General Communications Svc. v. Ga. PSC, 244 Ga. 855, 856 (262 SE2d 96)), there was no reason to reward him a bonus to the detriment of another innocent party. See Vandiver, supra at 412. An attorney who relied on a settlement without ascertaining its authority did so “at his peril” (Sonnebom & Co., supra), for if the settlement was unauthorized, the attorney who relied on it was in fact as mistaken as the attorney who made it, and could not by reason of his mistake create rights' for his client against an innocent opposing party.

Every attorney in this state knows that “[wjithout special authority, attorneys cannot receive anything in discharge of a client’s claim but the full amount in cash.” OCGA § 15-19-6. According to Brumbelow, supra at 674, fn. 1, this statute, is irrelevant to the question whether an attorney may assume other counsel has authority to settle. But since the statute governs attorney/client relations (id.), it is difficult to see why an attorney should assume opposing counsel has a right which he himself does not lawfully and ethically have. (Brumbelow states also that OCGA § 15-19-6,applies only where the claim is for a “sum certain,” but we find no prior authority for that statement (compare Kaiser &c., supra), and an attorney is not justified in assuming a proprietary interest in a claim on grounds it is uncertain.) Finally, State Bar DR 7-102 (A) (9) provides: “[A] lawyer shall not . . . settle a legal proceeding or claim without obtaining proper authorization from his client.” (Emphasis supplied.) “Proper authorization” is “special authority” (OCGA § 15-19-6); that is, for the specific settlement proposed. Equitable Gen. Ins. Co., supra.

So, although Brumbelow held an attorney’s authority to settle “may be considered to be plenary” (at 675), it did not hold the attor^ ney has such authority in fact, for he does not have such authority. OCGA § 15-19-6; DR 7-102 (A) (9); see Vandiver, supra at 413-414; 7A CJS, § 124; 30 ALR2d 944, 945; 7 AmJur2d, § 156. Routine enforcement of unauthorized settlements significantly alters the legal and property rights of clients; it is thus essential in these cases that Brumbelow be strictly construed and we do not think the Supreme Court intended otherwise. An unauthorized settlement which caused the relying party no loss of legal right (see General Comm. Svc., supra) should be enforced only where the complete absence of bad faith or actual or constructive fraud is affirmatively shown. Brumbelow does not authorize enforcement of an unauthorized settlement where “the attorney’s action is in violation of express directions of the client which are known by the other party or his attorney, or is fraudulent or collusive.” King, supra; Petty, supra. If an unauthorized settlement is enforceable where the other attorney “lacks such knowledge [that it violates express direction of the client],” (King, supra), nevertheless nothing in Brumbelow, strictly construed, authorizes compromise where the other party or attorney knew or should have known of the lack of authority to enter a compromise in the case.

We conclude that Brumbelow does not in any way enlarge the rights, powers and authority of attorneys, and that an attorney may not settle or compromise his client’s claim, defense or property without obtaining “special authority,” that is, without consulting the client as to a specific offer of settlement when it is made. The fact that in theory a client has a remedy against his attorney does not mitigate the harm caused by unauthorized settlements, for aside from creating adversarial relations between attorney and client, this remedy is uncertain. It is suggested that enforcement of unauthorized settlements promotes certainty in legal dealings, but it has the opposite effect, by guaranteeing excess litigation, and by removing even the illusion of fidelity which is the Bar’s stock in trade. In view of the burdens imposed on the public by the exercise of such unbridled power by attorneys, we think public policy must give this solitary remedy every consideration available.

Prior to Brumbelow, when an attorney asserted reliance on another’s “apparent” authority, he did so at peril; there was no presumption of such authority and the burden of proof was on the attorney seeking to enforce a settlement. Kaiser &c., supra; Johnson v. Starr Piano Co., supra. The same reasoning applies today where an attorney asserts such authority as against his own client. Although Brumbelow allows opposing counsel to rely on an “apparent” plenary authority to settle, it does not create a presumption as against the client that any such authority existed. Therefore, the burden is on the attorney who asserts this right against his client to prove it unequivocally. See OCGA § 24-4-1; and see, as to affirmative defenses, Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 679 (278 SE2d 100).

2. We find this attorney/client contract contains no language giving the attorney greater authority than he would otherwise have. It gives the attorney no “right” to do anything the clients did not authorize him to do; it gives full “power and authority to settle, compromise or take such action as he might deem proper,” which is no more than the common authority attorneys have to implement settlements determined by the client and do all things proper to carry them into effect. See Vandiver, supra. Appellees plainly instructed their attorney that they would settle for no less than $50,000; thus, he had “full” authority to enter a settlement for the amount of $50,000. This “full power and authority” to settle accrued only after the amount of the settlement had been approved by the client, as required by law at OCGA § 15-19-6. To hold otherwise would deprive a party of the right to decide the amount of settlement and would deprive him of his property at his own lawyer’s doorstep. In appellant’s own view, the authority to settle for $22,500 would allow him to settle for $2, or to refuse to settle. Such broad power is uncertain and proprietary by nature and cannot be described as “special” authority.

3. Further, in his attempt to construe this language to give himself absolute authority to settle in his discretion, appellant contends “it would be difficult to draft language any more clear in its intent, or any more easily understood.” Obviously this is not true.

An ambiguous provision in a contract is construed most strongly against its maker. Hunsinger v. Lockheed Corp., 192 Ga. App. 781, 784 (386 SE2d 537). The provision in this contract must be construed most strongly against the attorney who proposed it; moreover, “ ‘(a) contract will not be construed so as to authorize one of the parties to take advantage of his own wrong.’ ” Norton v. Hutton, 172 Ga. App. 836, 837 (324 SE2d 744); Hunsinger, supra. Absent an express, clear and unmistakable voluntary relinquishment by the client of his legal and property rights with full knowledge of what rights he has relinquished, an attorney/client contract cannot be interpreted to give an attorney a proprietorship or an authority which the law or legal ethics forbid him to have. In ordinary cases of legal malpractice, “where the document requires substantive or procedural knowledge, is ambiguous, or is of uncertain application, the attorney may well be liable for negligence, notwithstanding the fact that his client read what was drafted” (Berman v. Rubin, 138 Ga. App. 849, 854 (227 SE2d 802)), the more so where the client was incorrectly advised as to the provision’s legal meaning and effect (Kushner v. McLarty, 165 Ga. App. 400, 403 (300 SE2d 531)), and even more so where the attorney thereby induces the client to employ him.

Construing this contract most strongly against appellant, it clearly does not give him the power and authority he asserts.

4. As to the use of the word “specific” in these cases, OCGA § 15-19-6 requires a finding of “special” authority. See Equitable Gen. Ins. Co., supra at 219-220. “Special authority” is authority other and greater than an attorney commonly has by virtue of the general retainer (see Vandiver, supra at 414) and refers to the client’s “special” approval of the “specific” terms and amount proposed. The attorney can obtain “special authority” only when and as a settlement is proposed. Nothing in Equitable Gen. Ins. Co. implies otherwise, for we said: “[I]t is the common practice that attorneys entertain settlements subject to the client’s approval.” Id. at 219-220. “Considering what is lost here, what is the monumental burden in simply requiring attorneys to obtain special authority before settling a case?” Vandiver, supra at 412-413. Special authority as to the specific terms of a particular settlement is the “proper authorization” which DR 7-102 (A) (9) provides the attorney must “obtain” before he settles a legal claim.

5. Grave considerations are posed by the attorney’s assertion that he “was a forty percent partner” with the Useltons. This, he says, gave him “absolute” authority and discretion to dispose of their claims. He asserts also that at no time did he ever state to them that they would have any authority over settlement. He asserts, moreover, that he had the right to decide the matter of settlement because a contingent fee contract creates in the attorney an interest in the subject matter and is not revocable at will, citing Wheeler v. Pan-Ameri can Tetro. Corp., 48 Ga. App. 378 (172 SE 826). But that case has nothing to do with an attorney’s contingent fee contract and even less to do with lawyer’s ethics.

We conclude that the attorney’s assertion of proprietary rights in the clients’ claims is inimical to the law and is strictly forbidden by the Ethical Regulations of the State Bar Standard 31 and DR 5-103 (A) (2). The provision allowing a contingent fee is designed to give access to the judicial system to financially disadvantaged parties. If it is used as a basis to remove or diminish their legal or property rights, it becomes so perilous for them to seek legal counsel that any benefit bestowed by the allowance of a contingent fee is removed. An attorney’s right to receive a contingent fee does not make the attorney a “partner” with his client for any purpose.

Appellant is not entitled to summary judgment on his claim for attorney fees or on the counterclaims for malpractice.

Judgment affirmed.

Pope and Cooper, JJ., concur.

On Motion for Reconsideration.

Appellant contends that if an attorney can obtain “special authority” only when and as a specific settlement is proposed, this means a client cannot, in a contract of employment, give the attorney authority to dispose of his claim at the attorney’s discretion.

The statutory and disciplinary proscriptions against an attorney’s disposition of a client’s legal and property rights without “obtaining” “special” authorization (DR 7-102 (A) (9); OCGA § 15-19-6) are not ones we created. As to whether an attorney can ever construct an employment contract in which he may lawfully annex such rights, we leave this question to the Bar and to the individual case; but this contract was not such. Appellant contends this case has nothing to do with Brumbelow, supra, because this settlement was not “unauthorized” but was authorized by the contract he drafted. The transcript of the hearing on motion to enforce shows the settlement was enforced expressly pursuant to Brumbelow and over the Useltons’ objections. Since their attorney concurred in the motion against them, the Useltons were powerless to prevent the disposition of their legal and property rights. The personal injury case in which they claimed $37,000 in actual loss was terminated by their attorney against their wishes, and now they are forced into another lawsuit, in which the attorney who disposed of their claims against their wishes will force them to prove their claims anyway in order to recover for their loss and prevent him from collecting a fee. This is a new species of potentially endless litigation spawned directly from the unauthorized disposition of clients’ legal and property rights. In this case is added the conundrum that the attorney, in effect, says his clients gave him authority to settle their claims against their wishes. This whole problem need never have arisen. Disputes with fickle clients, motions to enforce unauthorized settlements, misunderstandings with clients or with opposing attorneys, fee disputes and malpractice suits are all avoided by the attorney’s obtaining special authority for a specific settlement when it is made. These are not new observations (see Vandiver v. McFarland, 179 Ga. App. 411 (346 SE2d 854); and see Equitable Gen. Ins. Co. v. Johnson, 166 Ga. App. 215 (303 SE2d 757), nor are they personalized to this appellant, for unfortunately this extra litigation is all too common today.

Decided January 30, 1992

Reconsideration denied February 18, 1992

James W. Lewis, pro se.

Hughes & Gibson, Ralph E. Hughes, for appellees.

Motion for reconsideration denied.


author: Pope, Judge.

text:
    A91A1874.
    HUDSON et al. v. WINDHOLZ.
    (416 SE2d 120)
   Pope, Judge.

Plaintiffs/appellants appeal the order of the trial court granting summary judgment to defendant/appellee in a legal malpractice action.

Until early 1983, plaintiff Susan Hudson was married to Jennings Gordon. The couple continued to see each other romantically even after their divorce, until approximately August 9, 1984. In or about June of 1984, Ms. Hudson met and began a romantic relationship with plaintiff Gary Hudson, her present husband, so that during the summer of 1984, Ms. Hudson was romantically involved with both her ex-husband and Mr. Hudson. When Mr. Gordon discovered Ms. Hudson’s relationship with Mr. Hudson, he apparently felt betrayed and began a course of harassment directed towards Ms. Hudson, subjecting her to a series of threatening, harassing and embarrassing acts, too numerous to recount in this opinion.

The course of conduct which gave rise to this litigation involves Mr. Gordon’s distribution of copies of a number of extremely sexually explicit photographs that he had taken of Ms. Hudson prior to, during, and after their marriage, portraying Ms. Hudson in various stages of undress. In August of 1984, Mr. Gordon sent Ms. Hudson a sexually explicit photograph and threatened to send a copy to Ms. Hudson’s employer and every real estate agency in Atlanta unless Ms. Hudson immediately left Atlanta. Mr. Gordon then sent a nude photograph of Ms. Hudson to two magazines, Gallery and Genesis, along with a fabricated proposed caption for the photograph and a forged model consent form that appeared to indicate that Ms. Hudson had consented to the publication of the photograph in the magazines. Gallery magazine ultimately published the nude photograph of Ms. Hudson in its October 1985 issue.

On August 29, 1985, two weeks before Mr. and Mrs. Hudson were to be married, Mr. Hudson found a copy of the October 1985 issue of Gallery in his mailbox with Ms. Hudson’s business card attached to the magazine. On August 30, 1985, Ms. Hudson contacted and met with defendant Mr. Windholz. She was extremely upset and was contemplating cancelling her upcoming marriage to Mr. Hudson. During their conference, Ms. Hudson described the numerous harassing acts committed by Mr. Gordon during the past year and explained to Mr. Windholz that there were numerous, sexually explicit photographs of her still in Mr. Gordon’s possession.

Later that day, a copy of Gallery magazine was delivered to the manager of the bank where Ms. Hudson was employed. On September 14, the Hudsons’ wedding day, a plant was delivered to their new home with another sexually explicit photograph of Ms. Hudson placed inside the plant. On September 15, Ms. Hudson’s mother returned to her home in Florida to find a copy of Gallery magazine and Ms. Hudson’s business cards tacked to her door. On September 16, the Hudsons discovered that someone had broken into Ms. Hudson’s car and glued yet another nude photograph of her to the dashboard. Following each of these incidents, Ms. Hudson contacted Mr. Windholz, telling him she was getting more and more anxious to put an end to Mr. Gordon’s harassment. During subsequent meetings with the Hudsons, Mr. Windholz observed that Ms. Hudson was becoming emotionally distraught, and Mr. Hudson appeared so angry that defendant was concerned that he could become violent. Throughout their discussions with Mr. Windholz, the Hudsons indicated that Mr. Windholz’s primary objective should be to stop Mr. Gordon’s harassment.

Mr. Windholz initiated an investigation of the potential civil claims against both Gallery and its publisher, Montcalm Publishing Corporation (hereinafter collectively referred to as “Gallery”) and Mr. Gordon. Mr. Windholz determined that the Hudsons’ potential claims against Gallery for invasion of privacy were relatively tenuous. Gallery could assert as a defense that it had relied in good faith upon the model consent form that Mr. Gordon had forged, and moreover, had Mr. Gordon not personally distributed the Gallery issue to Ms. Hudson’s relatives and employer, she might never have known that it existed, thereby never incurring any damages.

Mr. Windholz also feared that the introduction of the other far more explicit photographs of Ms. Hudson in a suit against Gallery would injure Ms. Hudson’s character more severely than had the publication of the relatively innocuous nude photograph in Gallery. Also, Mr. Windholz was concerned that an action against Gallery would be protracted and expensive, even on a contingency fee basis.

Mr. Windholz made a judgment that the most viable of the Hudsons’ claims were those that might be asserted against Mr. Gordon. He therefore recommended that the Hudsons focus their attention on stopping Mr. Gordon’s continuing harassment. This decision was communicated to the Hudsons orally and in a letter dated October 2, 1985, which detailed his efforts in accumulating evidence to assist the Hudsons in their claims against Mr. Gordon. The letter mentioned Gallery only insofar ás it discusses the degree to which Gallery might be able to assist the Hudsons in the accumulation of evidence against Mr. Gordon. The October 2 letter also contained a written retainer agreement between Mr. Windholz and the Hudsons which discussed potential claims against Mr. Gordon and failed to mention Gallery in any respect. The retainer agreement was accepted by the Hudsons.

Thereafter, Mr. Windholz’s efforts were directed toward accumulating evidence for use in a criminal prosecution or civil action against Mr. Gordon. Mr. Windholz determined that an important piece of evidence in any legal action against Mr. Gordon was the original model consent form forged and submitted to Gallery by Mr. Gordon. By obtaining the original form, Mr. Windholz could arrange for a handwriting and fingerprint analysis, which he believed necessary to link conclusively Mr. Gordon to the document. Moreover, by securing the original model consent form, Mr. Windholz could determine whether Mr. Gordon had affixed a notary seal on the designated portion of the document, thereby committing fraud in relation to such seal, another avenue for criminal prosecution. Mr. Windholz also determined that any attempt to obtain the original model consent form from Gallery by way of subpoena or other procedural device might be successful only after considerable delay. After having made this analysis and judgment, Mr. Windholz commenced negotiating with Gallery magazine attempting to obtain the original consent form. Gallery, however, indicated that it would not turn over the original document unless the Hudsons executed a release.

Mr. Windholz consulted with the Hudsons, by telephone and in person, and apprised them of his assessment of the relative strengths and weaknesses of their potential claims against both Gallery and Mr. Gordon. In this conversation, Mr. Windholz explained to the Hudsons the legal effect of executing the release that Gallery insisted upon in exchange for the immediate delivery of the original model consent form. Both over the telephone and during a half-hour long conference in his office, Mr. Windholz explained to the Hudsons that execution of the release in favor of Gallery would forever preclude them from bringing any legal action against Gallery in connection with the publication of Ms. Hudson’s nude photograph in the magazine.

The Hudsons claim Mr. Windholz, at this point, advised them that execution of the release in favor of Gallery was the only manner in which to gain access to the original model consent form. They also claim that the defendant affirmatively counseled them to execute the release. Even though Mr. Hudson argues that he was concerned that Mr. Windholz was rendering erroneous legal advice in this regard, he nevertheless took no action to allay his concerns, and both he and his wife executed the release in exchange for the original model consent form.

Thereafter, Mr. Windholz increased his efforts to put a stop to Mr. Gordon’s harassment of the Hudsons, particularly by way of encouraging the proper authorities to press criminal charges against Mr. Gordon. Ultimately, successful criminal charges were asserted against Mr. Gordon and the campaign of harassment and humiliation against the Hudsons ceased.

In early 1986, before the authorities located Mr. Gordon, the Hudsons obtained a new attorney to represent them in connection with this matter. The Hudsons, represented by their new counsel, filed a civil action against Mr. Gordon and Gallery asserting claims against both defendants arising from the publication of Ms. Hudson’s nude photograph in the magazine. Gallery subsequently moved for summary judgment, relying upon the release executed by the Hudsons. This court upheld the trial court’s grant of summary judgment to Gallery in Hudson v. Montcalm Publishing Corp., 190 Ga. App. 629 (379 SE2d 572) (1989). Ultimately, the Hudsons prevailed at trial against Mr. Gordon on their invasion of privacy claim and were awarded a verdict in the amount of $225,000. On October 30, 1989, approximately three-and-one-half years after the attorney-client relationship between the Hudsons and Mr. Windholz had ended, the Hudsons instituted this legal malpractice action.

1. We first reject defendant’s argument that the grant of summary judgment to defendant must be affirmed by this court because plaintiffs failed to oppose the defendant’s motion for summary judgment in the trial court. “There is no such thing as a ‘default summary judgment.’ By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. ‘A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.’ [Cits.]” McGivern v. First Capital Income Properties, Ltd., 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988). See also Hughes v. Montgomery Contracting Co., 189 Ga. App. 814 (377 SE2d 723) (1989).

2. Defendant also contends this appeal must be dismissed on the ground that plaintiffs failed to file a Settlement Conference Information Form (hereinafter referred to as “SCIF”) in violation of Court of Appeals Rule 52. However, Rule 52 (IV) (a) provides that the failure to timely file a SCIF by either party shall be deemed a rejection of the settlement conference procedure. Thus, this appeal is properly before this court.

3. In order to prevail on a claim for legal malpractice “ ‘the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. (Cits.)’ [Cit.]” Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (1) (355 SE2d 453) (1987). In the case sub judice we agree with the trial court that, although it is undisputed that an attorney/client relationship existed between plaintiffs and defendant, plaintiffs have failed to establish either negligence, or that the alleged negligence was the proximate cause of plaintiffs’ damages.

The doctrine of judgmental immunity prevents the plaintiffs from establishing that defendant’s recommendation to execute the release in favor of Gallery was a negligent act. In Woodruff v. Tomlin, 616 F2d 924, 930 (6th Cir. 1980), one of the seminal cases on judgmental immunity, the Sixth Circuit held: “[T]here can be no liability for acts and omissions by an attorney in the conduct of litigation which are based on an honest exercise of professional judgment. This is a sound rule. Otherwise every losing litigant would be able to sue his attorney if he could find another attorney who was willing to second guess the decisions of the first attorney with the advantage of hindsight. If this were permitted, . . . the original trial would become a ‘play within a play’ at the malpractice trial.”

Georgia has adopted the doctrine of judgmental immunity, holding “the tactical decisions made during the course of litigation require, by their nature, that the attorney be given a great deal of discretion. [Cits.]” Berman v. Rubin, 138 Ga. App. 849, 851, n. 2 (227 SE2d 802) (1976). Moreover, the doctrine of judgmental immunity has been adopted in virtually every jurisdiction, prompting the Sixth Circuit in Woodruff to note, “[N]either counsel nor we have found an American decision holding an attorney liable for the choice of trial tactics or the good faith exercise of professional judgment.” Woodruff at 930, n. 1. See, e.g., Kirsch v. Duryea, 578 P2d 935 (Cal. 1978); Glenna v. Sullivan, 245 NW2d 869 (Minn. 1976); Rorrer v. Cooke, 329 SE2d 355 (N.C. 1985).

Because the evidence of record clearly indicates that defendant assessed the relative strengths and weaknesses of the plaintiffs’ claims against both Gallery and Mr. Gordon and exercised his best, informed judgment prior to recommending that plaintiffs execute the release in favor of Gallery, any error or mistake in judgment by defendant as to this recommendation is protected by the doctrine of judgmental immunity and may not serve as the basis for a legal malpractice action against defendant. Accordingly, plaintiffs have failed to meet the burden of establishing defendant’s negligence in his representation of plaintiffs.

Plaintiffs have also failed to establish that defendant’s actions caused the alleged injury to plaintiffs. “There are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby. [Cits.] This rule has particular force when the party is well educated and laboring under no disabilities. To hold otherwise is to create the potential for malpractice litigation in every contract dispute.” Berman v. Rubin, supra at 854. The release executed by the plaintiffs in favor of Gallery is written in plain “layman’s” English and is completely devoid of technical language and legal jargon. It covers only one-and-one-half pages and unambiguously releases Gallery “from any and all causes of action and claims for relief of any nature whatsoever, known and unknown, anticipated and unanticipated, past, present and future” resulting from Gallery’s publication of the nude photograph of Ms. Hudson. Moreover, the record clearly indicates that both plaintiffs read the release they executed, understood the legal consequences of the release before executing it, and made a decision to execute the release so that they could immediately obtain the forged entry form submitted to Gallery and pursue immediate action against Mr. Gordon.

“[W]hen the document’s meaning is plain, obvious, and requires no legal explanation, and the client is well educated, laboring under no disability, and has had the opportunity to read what he signed, no action for professional malpractice based on counsel’s alleged misrepresentation of the document will lie.” Berman v. Rubin, supra at 855. We agree with the trial court’s conclusion that the “[p]laintiffs made an independent, well-informed and deliberate decision that, in retrospect, they now regret and desire to rescind. Thus, [plaintiffs’ choice to execute the release is an intervening event which caused their alleged damages. . . .” Compare Little v. Middleton, 198 Ga. App. 393 (401 SE2d 751) (1991) cited by plaintiffs, where a question of fact existed as to whether the client had a subjective understanding of the preclusive effect of the release executed.'

Because plaintiffs failed to establish two of the three elements necessary to prove a legal malpractice claim, the trial court was correct in granting summary judgment to defendant. Rogers v. Norvell, 174 Ga. App. 453, 458 (2) (330 SE2d 392) (1985).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Decided February 18, 1992.

Michael T. Bennett, Robert J. Morrison, for appellants.

Arnall, Golden & Gregory, Karen B. Bragman, Frank N. White, for appellee.


text:
    A91A2208.
    WASHINGTON v. RUCKER.
    (415 SE2d 919)
   Sognier, Chief Judge.

Robert Lee Washington, Sr. presented for filing in the Superior Court of Fulton County a pro se complaint alleging legal malpractice by the named defendant, William Rucker. Pursuant to OCGA § 9-15-2 (d), the pleadings were forwarded to a superior court judge for review prior to filing, and the judge entered an order denying filing on the ground that the complaint failed to set forth a justiciable claim as defined in the statute. Washington filed a pro se appeal to this court.

When examining a pro se complaint, a court should hold it to less stringent standards than formal pleadings drafted by lawyers and should deny filing only if “ ‘it appears “beyond doubt that the (appellant) can prove no set of facts in support of his [claim] which would entitle him to relief.” [Cits.]’ [Cit.]” Evans v. City of Atlanta, 189 Ga. App. 566, 567 (377 SE2d 31) (1988). So construed, appellant’s complaint alleges that he engaged appellee to represent him in an employment discrimination claim to be filed in federal court; that in September 1988 when appellee filed the discrimination complaint in United States District Court for the Middle District of Georgia he was not admitted to practice before that court; that by August 1989 appellee had indicated to appellant that he intended to withdraw as counsel because he was suffering from a chronic illness and because a recent ruling by the United States Supreme Court had increased the burden of proof for appellant’s claim; that on November 8, 1989 the district court judge entered an order granting appellee’s petition to withdraw on the ground of “apparently insurmountable differences between plaintiff and counsel and a mutual agreement that their attorney-client relationship should be ended”; that appellant was unable to obtain substitute counsel; and that appellant’s case was tried in January 1990, with appellant appearing pro se, and judgment was entered for the defendant.

Pretermitting the applicability of OCGA § 9-11-9.1, we note that both the rules governing practice before our state and federal courts and also the Canons of Ethics for attorneys contemplate that attorneys may petition for and be permitted to withdraw from representation under certain circumstances. See Uniform Superior Court Rule 4.3; Ethical Consideration 2-32; Directory Rule 2-110. We are aware of no case which holds that attorney withdrawal with court permission and in accordance with the applicable rules can constitute legal malpractice. Here, appellant does not allege that the requisite rules were not followed. Tire district court found that the requirements had been met and authorized appellee’s withdrawal. As appellant acquiesced in that ruling and does not allege that it has been challenged or reversed on appeal, we will not question the correctness of that ruling here. Accord Sanders v. S. D. Leasing, 189 Ga. App. 409, 410 (1) (376 SE2d 420) (1988). Since a court of law examined the circumstances, made findings of fact, and permitted appellee’s withdrawal, we hold that appellant’s allegations set forth no facts that could be construed to entitle him to relief.

Decided February 18, 1992.

Robert L. Washington, Sr., pro se.

William F. Rucker, pro se.

In addition, appellant does not allege that appellee’s failure to be admitted to the district court before filing the employment discrimination complaint caused any harm to appellant, and we fail to see how any such damage could be shown, as the district court obviously allowed the litigation to proceed. See Graves v. Jones, 184 Ga. App. 128, 130 (1) (361 SE2d 19) (1987) (negligence that was proximate cause of damage to plaintiff is an essential element of malpractice claim). Under these circumstances, we agree with the superior court that appellant’s complaint showed on its face a complete absence of any justiciable issue of law or fact, see OCGA § 9-15-2 (d), and we affirm the decision below.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A1742.
    LOVE v. THE STATE.
    (416 SE2d 99)
   McMurray, Presiding Judge.

Defendant was arrested on cocaine charges. A preliminary hearing was held on June 16, 1988. Defendant was represented at the hearing by John Fleming of the firm of Fleming, Blanchard and Bonner. The State was represented by the district attorney and Danny Durham, an assistant district attorney. It came to pass that the district attorney left the preliminary hearing as it was drawing to an end. Durham saw it through and, following the hearing, defendant was bound over for trial.

In November 1988 Danny Durham left the district attorney’s office and went to work for Fleming, Blanchard and Bonner. Prior to trial, in December 1990, the State moved to disqualify the Fleming law firm as defendant’s counsel. A hearing was held on the motion on March 5, 1991.

At the hearing, an investigator testified that, after the preliminary hearing, he had a conversation with Durham about the “direction” of the case against defendant and what Durham “thought about it.” Durham testified he had no recollection of “any specific conversation” about defendant’s case.

The trial court granted the motion to disqualify on March 5, 1991, ruling: “[T]o allow the firm with which Mr. Durham is now associated to continue representation of the defendant would create the appearance of impropriety and would likely provoke suspicion and distrust of the judicial process. Society’s interest in the prosecution of this case outweighs the defendant’s right to counsel of his choice.” The trial court certified its ruling for immediate review and we granted defendant’s application for an interlocutory appeal. Held:

“ ‘The rule must of necessity be that if an attorney has been employed in a matter and has appeared in court in connection therewith, he can not thereafter accept employment and appear in a case against his former client, where under the latter employment he must necessarily assume a position contrary to that involved in his former employment.’ Tilley v. King, 190 Ga. 421, 425 (9 SE2d 670).” Burkett v. State, 131 Ga. App. 662, 663 (206 SE2d 848). Thus, if “it should be made to appear to the court that counsel who proposes to represent one of the parties thereto has previously been in the employment of the opposing party in the same or a related matter, it would be serious error to permit him to continue in the case, unless it should appear that he took no action in the case while counsel for the opposing party, and it was clearly shown that he did not acquire, by reason of such employment, any knowledge or information concerning the case; and even in these circumstances the court might, in its discretion, disqualify him, looking to the full administration of justice.” Clifton v. State, 187 Ga. 502, 505 (2 SE2d 102). Accord Conley v. Arnold, 93 Ga. 823, 824, 825 (20 SE 762).

“In the early case of Gaulden v. State, 11 Ga. 47 (1852), it was held that public policy would prevent a solicitor general who instituted a prosecution against a defendant by preferring a bill of indictment against him from later representing the defendant for the offense charged in the indictment. It was stated, at page 51, as follows: ‘It is no sufficient answer to say, that the law will not allow him to disclose any fact which may have been communicated to him, as the counsel for the state, to her prejudice. If he knows the vulnerable points in the case, derived by his official connection with it, there are many ways by which these points might be made available to the defendant on his trial, by his counsel, besides disclosing them as a witness. If he has knowledge of facts, derived from his official connection with the prosecution, which will operate to the prejudice of the state, and he is permitted to act as counsel for the defendant, that knowledge will be made available in the defense; therefore, we place our judgment on the ground, that public policy forbids that a solicitor general who has prosecuted a defendant for a violation of the law, by preferring an indictment against him, should appear as his counsel to defend him from the charge, after the expiration of his term of office.’ ” Lane v. State, 238 Ga. 407, 408 (4), 409 (233 SE2d 375).

The principles underlying Gaulden v. State, 11 Ga. 47, supra, and Clifton v. State, 187 Ga. 502, 505, supra, are embodied in the Canons of Ethics, Code of Professional Responsibility, Rule 3-109 (Canon 9), Ethical Consideration (EC) 9-3 and Directory Rule (DR) 9-101 (B). EC 9-3 provides: “After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.” 252 Ga. 637. Likewise, DR 9-101 (B) provides: “A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.”

In the case at bar, Durham represented the State at the defendant’s preliminary hearing. In our view, Durham’s appearance in a courtroom of this State as an assistant district attorney demonstrates that he had a “substantial responsibility” in prosecuting defendant’s case. Accordingly, we agree with the trial court that the law firm representing defendant should be disqualified. Tilley v. King, 190 Ga. 421, 425, supra; Clifton v. State, 187 Ga. 502, 505, supra; Gaulden v. State, 11 Ga. 47, supra. Compare Rivers v. Goodson, 184 Ga. App. 70 (360 SE2d 740); People v. Anaya, 732 P2d 1241 (Colo. App.). Our conclusion is buttressed by the fact that the parties disagree over the content of discussions between Durham and the State’s investigator. In view of the disagreement, it cannot be said unequivocally that Durham did not acquire any knowledge or facts about the case. See Clifton v. State, 187 Ga. 502, 505, supra.

“[A] lawyer must avoid even the appearance of impropriety, DR 9-101, to the end that the image of disinterested justice is not impoverished or tainted. Thus it is that sometimes an attorney, guiltless in any actual sense, nevertheless is required to stand aside for the sake of public confidence in the probity of the administration of justice. Such is the basis of our necessary ruling in this case.” State v. Rizzo, 350 A2d 225 (69 N.J. 28).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided January 30, 1992

Reconsideration denied February 19, 1992.

Dunstan, Dunstan & Cleary, J. Richard Dunstan, for appellant.

Michael C. Eubanks, District Attorney, Daniel W. Hamilton, Richard E. Thomas, Assistant District Attorneys, for appellee.