text:
    A13A1417.
    A13A1418.
    WELLSTAR HEALTH SYSTEMS, INC. v. KEMP et al. GREEN et al. v. KEMP.
    (751 SE2d 445)
   DOYLE, Presiding Judge.

Pamela Elaine Kemp, individually and on behalf of the estate of David Allen Kemp, filed the instant wrongful death action alleging that WellStar Health System, Inc. (“WellStar”), was liable for the death of her husband based on the negligence of its employees. Because of alleged witness tampering, the trial court disqualified WellStar’s trial counsel Henry D. Green, co-counsel David A. Sapp, and their law firm, Green & Sapp, LLP (collectively “the Lawyers”), and struck WellStar’s answer. Thereafter, the court entered default judgment against WellStar as to liability and held a trial on damages.

In Case No. A13A1417, WellStar appeals, arguing that the trial court erred by (1) striking its answer as a result of the Lawyers’ actions; (2) denying its motion to recuse; (3) excluding the testimony of its experts during the damages phase; (4) failing to grant a mistrial or to admonish Kemp’s trial counsel pursuant to OCGA § 9-10-185; and (5) refusing to charge the jury on the burden of proof. In Case No. A13A1418, the Lawyers appeal, arguing that the trial court erred by (1) granting Kemp’s motion to disqualify them; and (2) overruling the Lawyers’ motion to quash their depositions and production of their internal e-mails regarding Kemp. For the reasons set forth below, we affirm in part and reverse in part as to Case No. A13A1417, and we affirm as to Case No. A13A1418.

Viewed in favor of the verdict, the evidence shows that in May 2011, Kemp filed a medical malpractice complaint alleging negligence claims related to the death of her husband after admission to WellStar Douglas Hospital for a broken foot and exacerbated chronic obstructive pulmonary disease; attached thereto was the required expert affidavit of Dr. William Stinnette. Upon receiving a copy of the complaint, Green, who had handed the case over to Sapp and who did not make an entry of appearance as counsel, contacted Stinnette’s employer, Northside Hospital, which is not a WellStar facility, and spoke to Northside’s vice president of legal services, Susan Sommers, with whom Green had a lengthy professional relationship, regarding Stinnette’s involvement in the case.

Based upon Green’s discussion with Sommers, the Lawyers believed that Stinnette would not be testifying on behalf of Kemp; however, by March 2012, it became apparent that Stinnette would indeed be testifying. After discussing deposition dates for Stinnette with Kemp’s attorney, Green & Sapp associate Austin Gillis e-mailed Green to alert him to the fact that Kemp was representing that Stinnette “still” intended to testify on behalf of Kemp despite Green’s previous conversation and apparent assurances from Sommers that Stinnette would not “be a factor.”

The parties initially scheduled Stinnette’s deposition for April 19, 2012, and Kemp’s amended complaint along with Stinnette’s second amended affidavit was filed on April 16, 2012. Gillis again e-mailed Green on April 13, asking him to contact Sommers and alert her to the fact that Stinnette’s deposition was going to take place “after all” and asked Green to let her know about the testimony.

Thereafter, on April 16, three days prior to Stinnette’s deposition, Green telephoned Sommers to discuss Stinnette’s continued involvement in the case, and Sommers understood from Green that he was unhappy about Stinnette’s involvement. Sommers then told Stinnette that a WellStar representative had telephoned her very upset that Stinnette would be testifying and did not want him to act as an expert in the case; Sommers referred to Stinnette’s contract with Northside, and based on her statements and the tone of her voice, Stinnette believed his employment to be in jeopardy. Stinnette became upset after speaking with Sommers, and he requested that Kemp’s trial counsel postpone his deposition because he was concerned his testimony might impact his employment. Thereafter, at approximately 4:00 a.m., on the morning of April 20, 2012, Stinnette, in a “distraught” telephone call to Kemp’s counsel, explained that based on the conversations with Sommers and all that had transpired, he could not continue as Kemp’s expert because he felt he might lose everything.

Meanwhile, on April 17,2012, Kemp’s counsel contacted the trial court to request a hearing on the Lawyers’ actions toward Stinnette, contending to the court that the actions constituted interference with a witness. In response to Kemp, on April 18, 2012, Sapp responded to the court and Kemp in a letter, the contents of which he discussed with Green and Sommers prior to submitting it to the court, stating that

[o]nce it became apparent that Dr. Stinnette was going to be providing sworn testimony against WellStar rather than simply executing an OCGA § 9-11-9.1 affidavit, my partner[,] Henry Green[,] telephoned Susan Sommers, General Counsel for Northside Hospital. . . . Mr. Green understood that Ms. Sommers would most likely want to know that one of Northside Hospital’s employed physicians was planning on providing expert testimony against a local hospital, and that is the reason he called her. . . . Mr. Green’s call to Ms. Sommers was simply a professional courtesy.... [I]t is easy to see why a hospital’s general counsel might not want a hospital-employed physician to testify as a plaintiff’s expert against a local hospital in a medical malpractice case. . . . Any question as to whether a hospital-employed physician should offer expert testimony on behalf of a plaintiff in a medical malpractice action is between a hospital’s general counsel and the hospital’s employees.

Consequently, Kemp moved to disqualify the Lawyers for tampering with her expert witness and moved to strike WellStar’s answer. Kemp also noticed Green, Sapp, and Sommers for depositions and filed a motion to produce documents related to discussions with Sommers about Stinnette, and in response, the Lawyers filed a motion to quash. After a hearing on the motion to quash, the trial court denied the motion, allowing Kemp to depose Sapp and Green on the limited subject of the statements made in Sapp’s April 18 letter to the court, and ruling that the court would make an in camera review of any documents prior to providing them to Kemp. On July 5, 2012, after a hearing, the trial court entered a written order disqualifying the Lawyers as WellStar’s counsel, finding that the Lawyers deliberately interfered with an expert witness by contacting Sommers in order for her to pressure Stinnette into withdrawing from the case.

Thereafter, WellStar filed three affidavits from WellStar’s risk management department, averring that although they had direct involvement with the case, they did not authorize the Lawyers’ actions with regard to Stinnette and were not consulted about any calls made to Sommers. After a hearing to address the motion to strike WellStar’s answer as a result of the Lawyers’ actions regarding Stinnette, the trial court entered an order on September 5, 2012, granting the motion. The trial court found that despite WellStar’s affidavits to the contrary, striking WellStar’s answer was appropriate given that the attempts to prevent Stinnette from testifying were repeated and intentional, and the intimidation of Kemp’s key expert witness, known to be such by WellStar for over a year, constituted an egregious injury to Kemp’s case at that stage of litigation. Based on the sanction, the trial court entered default judgment in favor of Kemp and set the trial to determine damages. On October 3, 2012, prior to the damages trial, WellStar filed a motion to recuse or disqualify the trial judge, which the trial court denied.

At the conclusion of the damages trial, the jury returned a verdict for $681,875 on Kemp’s wrongful death claim and $37,000 on Kemp’s loss of consortium claim. These appeals followed, and because the trial court’s decisions regarding WellStar flow from its determination that the Lawyers acted inappropriately by contacting Stinnette’s employer, we first address the Lawyers’ appeal.

Case No. A13A1418

1. The Lawyers contend that the trial court erred by granting Kemp’s motion to disqualify counsel and to strike WellStar’s answer based on the Lawyers’ actions.

(a) As an initial matter, Kemp has filed a motion to dismiss the Lawyers’ appeal, contending that the Lawyers lack standing to challenge the trial court’s ruling disqualifying them.

Based on this Court’s decision in Ford Motor Co. v. Young, we find that the Lawyers do have standing to challenge their disqualification. In Ford, the trial court revoked two attorneys’ pro hac vice admissions to the Superior Court after the attorneys had made erroneous admissions to the court concerning the defendant’s liability insurance. This Court first addressed the attorneys’ standing to challenge the order revoking their admissions, and we determined that

[generally, only a party to a civil case, or one who has sought to become a party as by way of intervention and has been denied the right to do so, can appeal from a judgment. However, where judgment is entered against a nonparty, that nonparty becomes a party with standing to appeal.

We further explained that the trial court’s “findings may have continuing, adverse collateral consequences for the attorneys’ careers” and therefore “they [were] directly aggrieved by the decision” and could appeal the revocation order.

Here, in the same vein, the order disqualifying the Lawyers from representing WellStar contains findings that may have continuing adverse consequences because the trial court determined that the Lawyers intentionally interfered with an expert witness and that the Lawyers were evasive, contradictory, and not credible as witnesses before the court. Accordingly, Kemp’s motion to dismiss Case No. A13A1418 is denied.

(b) Having determined our jurisdiction, we turn to the disqualification itself. Pursuant to OCGA § 15-1-3 (4),

[e]very court has power to control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto. This language is broad. The use of the word “all” as related to the persons to be affected, the use of the expression connected with a judicial proceeding, instead of some more restricted phrase, such as parties to the case, and the addition of the language, in every matter appertaining thereto, all seem to indicate an intention to declare a plenary power in the courts to exercise, over officers, parties, witnesses, and all others who may become connected in any way with a case pending before the court, such control as shall be adequate to carry out its full jurisdiction to administer legal justice in the case.

Nevertheless,

[t]he right to counsel is an important interest!,] which requires that any curtailment of the client’s right to counsel of choice be approached with great caution. In determining whether to disqualify counsel, the trial court should consider the particular facts of the case, balancing the need to ensure ethical conduct on the part of lawyers against the litigant’s right to freely chosen counsel. We review the court’s ruling for abuse of discretion.

“[C]ourts have shown considerable reluctance to disqualify attorneys despite misgivings about an attorney’s conduct... probably [because the] disqualification has an immediate adverse effect on the client by separating him from counsel of his choice,” such motions are often interposed for tactical reasons, and even if “made in the best of faith, such motions inevitably cause delay.” “Unless an attorney’s conduct tends to taint the underlying trial, the court should be quite hesitant to disqualify him.”

Pursuant to Rule 3.3 of the Georgia Rules of Professional Conduct,

[a] lawyer shall not knowingly: 1. make a false statement of material fact or law to a tribunal; 2. fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;... or 4. offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

Moreover, pursuant to Rule 3.4,

[a] lawyer shall not:.. . unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; . . . [nor shall a lawyer] request a person other than a client to refrain from voluntarily giving relevant information to another party ....

Finally, pursuant to OCGA § 16-10-93 (a),

[a] person who, with intent to deter a witness from testifying freely, fully, and truthfully to any matter pending in any court, in any administrative proceeding, or before a grand jury, communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness or to the person, property, or employment of any relative or associate of the witness or who offers or delivers any benefit, reward, or consideration to such witness or to a relative or associate of the witness shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.

Here, the trial court reviewed the evidence and found that the Lawyers repeatedly and intentionally contacted Sommers at North-side Hospital with the obj ective of interfering with Stinnette’s appearance as Kemp’s expert witness. The trial court’s order points to various discrepancies among the testimonies of Green, Sapp, and Sommers; the statements contained in Sapp’s letter to the court stating that the purpose of Green’s April 16 call to Sommers was to inform her that Stinnette was testifying; the statements contained in the Lawyers’ various internal e-mails regarding the attempts to pressure Stinnette through Sommers; and Sommers’s statement that Green’s phone call consisted of him voicing displeasure about Stinnette despite Green’s testimony that the call was simply to gather information about Stinnette. The court thoroughly explained how it arrived at its findings, including discrepancies, witness demeanor, and contrary testimony upon which its credibility determinations were based. Accordingly, we find no abuse of discretion.

The Lawyers contend that any actions on their part that led to Stinnette’s decision to withdraw as an expert witness were not unethical or impermissible because Northside’s contract with Stinnette prohibited him from testifying as an expert witness on behalf of medical malpractice claimants. In this case, pretermitting whether Northside’s employment contract prohibiting expert testimony by its doctors is legal or ethical, and pretermitting whether Sommers’s discussions with Stinnette were impermissible, we find no abuse of discretion on the part of the trial court in determining that the Lawyers’ acts of repeatedly contacting Northside through Sommers, which was not a client involved in this case, in order to pressure Stinnette to withdraw from testifying was unethical behavior; that such behavior was intentionally committed in order to prevent such testimony; and that after such behavior was questioned before the trial court, Green and Sapp lacked candor in their testimonies on the subject.

The Lawyers also contend that the trial court’s disqualification was erroneous because they did not directly contact Stinnette or directly threaten his employment based on his testimony for Kemp. We find instructive the case of Sanderson v. Boddie-Noell Enterprises, in which the United States District Court for the Eastern District of Virginia reviewed a similar situation: therein, the plaintiff’s attorney contacted the employer of a noticed expert witness for the defense and alerted the employer to the expert’s intent to testify in the case and such testimony’s violation of the employer’s contract with the expert. The district court found that this conduct was a violation of a provision of the Virginia Rules of Professional Conduct similar to Georgia Rules of Professional Conduct, Rule 3.4, explaining that the attorney could not so pressure an expert not to testify, even if the pressure was applied indirectly through the employer holding the applicable contract. The district court concluded:

As a direct and reasonably foreseeable consequence of that communication, [the employer] prohibited [the expert] from testifying, notwithstanding that [the expert] previously had testified over a dozen times while [employed there]. Thus, [plaintiff’s attorney] deliberately set into motion a series of events that had the effect of obstructing the defendant’s ability to use the services of its designated expert witness. Whether he intended that result is not dispositive of the issue because [the plaintiff’s attorney] is chargeable with knowledge of the reasonably foreseeable consequences of the acts in which he deliberately engaged.

As in Sanderson, the natural and foreseeable result of Green’s phone calls was to have Stinnette pressured into withdrawing from the case.

Finally, the Lawyers contend that Kemp’s own attorney may have contacted Sommers at the beginning of litigation in order to receive an approval from Northside for Stinnette to testify. Nevertheless, it does not follow that the Lawyers’ contact with Sommers was acceptable. Whatever Northside’s initial understanding of Stinnette’s decision to testify may have been, the Lawyers had a duty to refrain from pressuring Stinnette directly or indirectly when they discovered that he intended to testify as an expert for Kemp.

2. The Lawyers contend that the trial court erred by overruling their motions to quash their depositions and Kemp’s motion to produce filed in relation to Kemp’s motion to disqualify the Lawyers. We disagree.

In conjunction with the motions to disqualify counsel and to strike WellStar’s answer, Kemp subpoenaed Green and Sapp for deposition and filed a motion for production of documents related to the alleged interference with Stinnette. Thereafter, the Lawyers filed a motion to quash the subpoenas asserting the work-product doctrine; the trial court denied the motion after a hearing thereon. In its order denying the motion to quash, the court limited the Lawyers’ depositions to the information contained in the April 18 letter written by Sapp regarding Green’s conversations with Sommers about Stinnette’s testimony, and the court made itself available during the depositions to decide any issues related to the scope of the depositions. Moreover, in order to prevent production of any items containing work product, the trial court conducted an in camera review of the documents the Lawyers submitted in response to the motion to produce.

OCGA § 9-11-26 (b) (3) generally prohibits the compelled disclosure of materials prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative unless the party seeking their disclosure shows (1) that it has a substantial need for the materials to prepare its case and (2) that it is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Even if the requisite showing is made to compel disclosure under this standard, absolute protection is still afforded to mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Where otherwise discoverable materials contain such mental impressions, the trial court may need to conduct an in camera review to ensure those portions are redacted prior to production.

“[T]he work-product doctrine directly protects the adversarial system by allowing attorneys to prepare cases without concern that their work will be used against their clients,” but “at least in some circumstances, a lawyer’s unprofessional behavior may vitiate the work product privilege.”

The integrity of the adversary process is not furthered by protecting a lawyer who steps outside his role as “an officer of the court . . . working] for the advancement of justice while faithfully protecting the rightful interests of his clients.” An attorney should not be able to exploit the privilege for ends outside of and antithetical to the adversary system any more than a client who attempts to use the privilege to advance criminal or fraudulent ends.

Here, the Lawyers had discoverable facts relevant to the disqualification issue that were not protected by work product or other privilege. The trial court properly conducted in camera review of the documents produced and properly limited the scope of the depositions to the issue of the Lawyers’ conduct related to Stinnette, and therefore, we cannot say that the trial court abused its discretion by denying the motion to quash as to Sapp’s and Green’s depositions or motion to produce.

Accordingly, the trial court’s order in Case No. A13A1418 is affirmed, and Kemp’s motion to dismiss is denied.

Case No. A13A1417

3. WellStar contends that the trial court erred by striking its answer and entering a default judgment.

At the outset, we note that rulings on motions to strike and for entry of default judgment are reviewed by this Court using an abuse of discretion standard. Indeed, a trial judge has broad discretion in the enforcement of the discovery provisions of the Civil Practice Act, and we will not interfere with the exercise of that discretion absent clear abuse. . . . Nevertheless, dismissal and default are the harshest sanctions available for the trial court to impose, and we have cautioned against the use of these harsher sanctions except in extreme cases.
To determine whether the trial court abused its discretion in this case, we look to...: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of... evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the party who destroyed the evidence acted in good or bad faith; and (5) the potential for abuse if [the answer was not struck] .

Pretermitting whether the Lawyers acted at the direction of WellStar when they made calls to Stinnette’s employer in an effort to prevent him from testifying on behalf of Kemp or whether it was necessary to make such a finding, based on the spoliation factors outlined above, the trial court abused its discretion by striking WellStar’s answer as a result of that conduct. “[W]hen key evidence has been destroyed, exclusion of evidence or dismissal of a case may be warranted.” Here, however, the evidence related to David Kemp’s death remains intact. We are mindful that the trial court’s finding of an intentional, unethical act is well supported by the record, and we are also mindful that as the trial court recognized, it is a hardship to Kemp to secure another expert in support of her case and that the expert’s testimony is central thereto, but these hardships can be addressed by the trial court with a number of less severe sanctions than the complete foreclosure of WellStar’s defenses to liability.

Accordingly, we reverse the order striking WellStar’s answer and entering default and remand for reconsideration of the sanctions to be imposed as a result of the abuse.

4. WellStar contends that the trial court erred by denying its motion to recuse based on the trial judge’s statements related to the case at a continuing legal education class during pendency of the case. We disagree.

After the order striking WellStar’s answer and granting default to Kemp was entered on September 6, 2012, the trial judge spoke at a panel discussion on ethics and professionalism at a family law seminar sponsored by the Institute of Continuing Legal Education of Georgia. At the seminar, which occurred on September 14, the judge was asked about the case and made various comments related to the order disqualifying the Lawyers and the order striking WellStar’s answer based on the Lawyers’ actions. On October 3, 2012, WellStar filed a motion to recuse based on the trial judge’s statements at the CLE.

In the affidavit, WellStar’s new attorney attached an affidavit stating that “I was informed that [the judge] spoke as part of a presentation . . . which took place on September 14, 2012.” He also stated that he “made arrangements to obtain a copy of the videotape of the [CLE], which I received on September 28, 2012.” The affidavit failed to state precisely when WellStar’s representatives first learned of the judge’s comments that may have given rise to disqualification. The trial court denied the motion.

Uniform Superior Court Rule (“USCR”) 25.1 provides: “All motions to recuse ... shall be timely filed in writing and... [f]iling and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification... unless good cause be shown for failure to meet such time requirements.” “Deciding whether the motion is timely, whether the affidavit is legally sufficient, and whether the facts asserted authorize recusal . . . present questions of law, for which the appropriate standard of review is de novo.”

Here, the motion to recuse appears to have been filed more than five days after WellStar learned that comments had been made by the judge at the CLE. Thus, for the motion to be considered timely, WellStar had to show good cause for failing to meet the five-day filing requirements. WellStar’s affidavit did not demonstrate when it first learned of the comments or what it understood about the comments that would give rise to recusal. Therefore, the affidavit was legally insufficient to determine whether the motion was timely filed or whether WellStar had good cause to file outside that five-day time period.

WellStar argues that the five-day period should run from September 28, 2012, which was the date it received a copy of the panel discussion. In Threatt v. State, however, this Court rejected a similar argument that the USCR 25.1 five-day requirement runs from the date of obtaining a transcript containing the comments at issue. Because there is no requirement that the supporting affidavit recite verbatim comments, as long as the substantive or factual basis was made clear, WellStar had a duty to file the motion within five days of when it first learned of the substance of the comments, but WellStar failed to provide this information in its affidavit. Accordingly, we affirm the trial court’s denial of the motion to recuse.

5. We do not reach WellStar’s remaining enumerations of error because they are not likely to recur on retrial.

For the above reasons, the judgment for appellee is reversed and a new trial on liability and damages is ordered, but the order denying the motion to recuse is affirmed.

Decided November 12, 2013

Hall Booth Smith, John E. Hall, Jr., W. Scott Henwood, Mark W. Wortham, Downey & Cleveland, RussellB. Davis, Robert C. Harrison, for appellant (case no. A13A1417).

Parks, Chesin & Walbert, David F. Walbert, Jennifer K. Coalson, for appellant (case no. A13A1418).

Gary P. Bunch, for appellee.

Judgment affirmed in part and reversed in part in Case No. A13A1417. Judgment affirmed in Case No. A13A1418.

McFadden and Boggs, JJ., concur.

        See Almond v. McCranie, 283 Ga. App. 887, 888 (643 SE2d 535) (2007).

       Kemp later filed Stinnette’s first amended affidavit in response to WellStar’s motion to dismiss.

       Although the trial court granted a certificate of immediate review, neither the Lawyers nor WellStar applied to this Court for interlocutory appeal.

       322 Ga. App. 348 (745 SE2d 299) (2013).

       See id. at 351.

       (Punctuation omitted.) Id. at 352 (1) (a).

       Id.

       (Punctuation omitted.) Crosby v. Potts, 8 Ga. App. 463, 467 (69 SE 582) (1910).

       (Punctuation omitted.) Clough v. Richelo, 274 Ga. App. 129, 132 (1) (616 SE2d 888) (2005), quoting Martinez v. Housing Auth. of DeKalb County, 264 Ga. App. 282, 288 (5) (590 SE2d 245) (2003).

       (Citation and punctuation omitted.) Reese v. Ga. Power Co., 191 Ga. App. 125, 127 (2) (381 SE2d 110) (1998), superseded by statute as stated in Bernocchi v. Forcucci, 279 Ga. 460, 462 (2) (614 SE2d 775) (2005).

       (Punctuation omitted.) Reese, 191 Ga. App. at 127 (2).

       We note that Stinnette and Sommers both testified that the two discussed Stinnette’s involvement in the Kemp case in late May or June 2011. Sommers’s recollection of the events was that she contacted Stinnette after receiving a voice mail from Kemp’s attorney asking for approval for Stinnette’s participation. Stinnette remembered, with far more detail, that he approached Sommers after having signed the expert affidavit in the Kemp case to discuss the addendum to his employment contract related to expert testimony. He testified that the conversation ended with his agreement not to testify in other cases about which he had been approached, but that he would continue to (and that Sommers understood he would continue to) appear as an expert in the Kemp case. In any event, Stinnette’s contract with Northside and his attempt to have his testimony pre-cleared is not relevant to the determination of whether the Lawyers engaged in sanctionable conduct.

       227 FRD 448 (E.D. Vir. 2005) (memorandum order).

       Id. at 453-454 (A).

       See id.

       See Ga. Rules of Professional Conduct, Rule 3.4. See also OCGA § 16-10-93 (a). See also Clos v. Pugia, 204 Ga. App. 843, 844-845 (1) (420 SE2d 774) (1992); OCGA § 15-1-3 (4) (“Every court has power... [t]o control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.”).

       (Citations and punctuation omitted.) St. Simons Waterfront v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 429-430 (2) (746 SE2d 98) (2013).

        McKesson HBOC v. Adler, 254 Ga. App. 500, 503 (1) (562 SE2d 809) (2002).

        Moody v. Internal Revenue Svc., 654 F2d 795, 800 (II) (D.C. Cir. 1981). Because Georgia’s Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of the federal courts interpreting the federal rules are persuasive authority. See Ambler v. Archer, 230 Ga. 281, 287 (1) (196 SE2d 858) (1973). Cf. St. Simons Waterfront, 293 Ga. at 427 (“Georgia law recognizes an exception to the attorney-client privilege for communications in furtherance of a crime, fraud, or other unlawful end.”).

        Moody, 654 F2d at 800 (II).

       (Punctuation and footnotes omitted.) Cameron v. Miles, 311 Ga. App. 753, 754-755 (1) (716 SE2d 831) (2011).

       (Punctuation omitted.) R.A. Siegel Co. v. Bowen, 246 Ga. App. 177, 180 (2) (539 SE2d 873) (2000), quoting Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 542 (469 SE2d 783) (1996).

       See R.A. Siegel Co., 246 Ga. App. at 180-181 (2) (defendant’s insurer allowed destruction of evidence, which destruction was chargeable to the defendants). See also OCGA § 15-1-3 (A trial court has the power to control the behavior of those appearing before it to ensure its ability to conduct a fair trial.).

        Chapman, 220 Ga. App. at 542.

        Bridgestone/Firestone North American Tire v. Campbell, 258 Ga. App. 767, 768 (574 SE2d 923) (2002).

       See, e.g., R.A. Siegel Co., 246 Ga. App. at 179-180 (2).

       See also Mills v. State, 187 Ga. App. 79 (1) (369 SE2d 283) (1988).

        Mayor & Aldermen of the City of Savannah v. Batson-Cook Co., 291 Ga. 114, 119 (1) (728 SE2d 189) (2012).

       While WellStar’s counsel never states specifically the date they learned that the comments had been made, it was necessarily some time before September 28, 2012, the date they received the copy of the panel discussion.

       See Threatt v. State, 211 Ga. App. 630 (440 SE2d 61) (1994), overruled on other grounds by Atlanta Independent School System v. Lane, 266 Ga. 657, 658 (1) (469 SE2d 22) (1996). See also Mills, 187 Ga. App. at 79 (1) (movant knew of comments on March 5 but did not file motion until March 18 with no showing of good cause for delay).

       WellStar cites to Batson-Cook, 291 Ga. at 114, in support of its contention that the motion was not untimely; however, the question presented was “whether the factual allegations presented on the motion to recuse were legally sufficient to require the motion to be presented to another judge for decision.” Moreover, in that case, the information was not known to the party until the receipt of the letter from opposing counsel. Batson-Cook, 291 Ga. at 120 (2) (a).

       211 Ga. App. at 630. See also Echols v. Echols, 281 Ga. 546 (640 SE2d 257) (2007).

        Threatt, 211 Ga. App. at 630.

       See id.


source: Caselaw Access Project

author: MCMILLIAN, Judge.

license: Public Domain

text:
    A13A1508.
    WILKES et al. v. FRASER.
    (751 SE2d 455)
   MCMILLIAN, Judge.

James David Wilkes (“Wilkes”), individually and as executor of the estate of Ricky Louie Dixon (“Dixon”), appeals the trial court’s final judgment in an action filed by Nell Wilkes Fraser (“Nell”) seeking a declaration determining the rights to certain property conveyed by her father, D. W. Wilkes (“D. W”), by deed dated May 23, 1936 (the “Deed”).

Nell’s verified declaratory judgment complaint, filed on July 30, 2012, asked the trial court to enter a judgment declaring her to be the owner of “a one-half undivided interest,” along with Wilkes, in the property conveyed by the Deed. Wilkes, individually and as executor of Dixon’s estate, filed a verified answer on September 27, 2012, asserting that the property should be shared among Nell, Dixon’s estate, and Wilkes, each taking a one-third undivided interest in the land. On October 24, 2012, the trial court issued an order granting Nell and Wilkes each a one-half interest in the property, and Wilkes appealed.

“The construction of a deed presents a question of law which [the appellate court] reviews de novo. In construing a deed, the court’s overriding goal is to ascertain and give effect to the intent of the parties.” (Citations omitted.) Second Refuge Church of Our Lord Jesus Christ, Inc. v. Lollar, 282 Ga. 721, 724-725 (2) (653 SE2d 462) (2007). See also Simpson v. Brown, 162 Ga. 529, 530 (134 SE 161) (1926) (the cardinal rule in construing a deed is to determine the parties’ intent).

Under the terms of the Deed, which was both executed and recorded on May 23, 1936, D. W. “reserve[d] unto himself the management, control, profits, use and possession of [a certain parcel of 83 acres of land (the ‘Property’)] and at his death to [his son, Ralph Wilkes (‘Ralph’),] during his life and at his death to his children.” The Deed also provided that “[s]hould the said Ralph Wilkes die without issue in that event the lands shall go to my other living children or their children.”

D. W. died on August 17,1938, and was survivedby five children, none of whom had yet married or had children. See Appendix 1. His two sons, Ralph and Earl Wilkes, both died without issue, and his three daughters, Georgia Wilkes Dixon (“Georgia”), Davie Lee Wilkes Wilkes (“Davie Lee”), and Nell, later married and had at least one child each. At the time of Ralph’s death on December 15, 2009, Nell was the only one of D. W.’s other children still surviving, and Wilkes, who is Davie Lee’s son, was the only other of D. W.’s surviving lineal descendants. Dixon, who was Georgia’s son, survived his mother but predeceased Ralph. The central issue in this appeal is whether Dixon’s estate takes any interest under the Deed.

The parties agree that the Deed created a life estate first in D. W, then a second life estate in Ralph. But they dispute the meaning of the Deed’s language conveying an interest to D. W.’s “other living children or their children” in the event that Ralph died without issue. Wilkes argues that we should interpret this provision as referring to D. W.’s children living at the time the Deed was executed, without any requirement that such children also survive Ralph. And because Dixon’s mother was one of those children, he argues that she received a remainder, which, by law, passed to Dixon at his mother’s death. Thus, Wilkes argues that Dixon’s estate would be entitled to share in the property. Nell argues, however, that the Deed provided that the remainder of the estate would pass only to D. W.’s children and grandchildren who were alive when Ralph died without issue. Accordingly, under Nell’s interpretation, Dixon’s estate does not receive an interest because Dixon did not survive Ralph.

The trial court found, without discussing the nature of the interests conveyed by the Deed and without citation to legal authority, that

the deed is unambiguous and the intent of [D. W] is clear: if Ralph Wilkes dies without children, the property goes to the living children or their children of [D. W] (sic). Therefore, one half interest in the property vests to James David Wilkes and one half interest in the property vests to Nell Wilkes Fraser.

(Emphasis in original.)

On appeal, “[o]ur purpose is to ascertain the intention of the parties concerned at the time of the execution of the deed in question, looking to the language used in the deed to make such determination.” Churches Homes for Business Girls, Inc. v. Mangel Foundation, Inc., 110 Ga. App. 539, 542 (139 SE2d 138) (1964). “In the construction of an instrument, the whole instrument is to be construed together so as to give effect, if possible, to the entire deed[,] and the construction which will uphold a deed in whole and in every part is to be preferred.” (Citations and punctuation omitted.) Municipal Elec. Auth. of Ga. v. 2100 Riveredge Assoc., Ltd., 180 Ga. App. 326, 327 (348 SE2d 890) (1986).

Considering the Deed as a whole, it is apparent that in addition to the two life estates conveyed to D. W. and to Ralph, the instrument also conveyed two other alternate remainders. Under Georgia law, “[Remainders are either vested or contingent. A vested remainder is a remainder which is limited to a certain person at a certain time or which is dependent upon the happening of a necessary event.” OCGA § 44-6-61 (formerly Code 1933 § 85-703). But “[a] contingent remainder is [either] a remainder [(1)] which is limited to an uncertain person or [(2)] which is dependent upon an event which may or may not happen.” Id. See also Henderson v. Collins, 245 Ga. 776, 778 (1) (267 SE2d 202) (1980) (“Uncertainty as to the right of future enjoyment is the hallmark of a contingent interest----”) (citation and emphasis omitted). Because Ralph had no children when the Deed was signed, the language granting an interest to Ralph’s children upon his death created the first type of contingent remainder, a remainder limited as to uncertain persons. See Folsom v. Rowell, 281 Ga. 494, 496 (1) (640 SE2d 5) (2007). The Deed also granted to D. W.’s “other living children or their children” an alternate remainder, which was limited to Ralph’s dying without issue. This provision, therefore, created either a vested remainder in D. W.’s other children, subject to divestment if Ralph had children, or the second form of contingent remainder, a remainder limited to an event which may or may not happen. See Miller v. Walker, 270 Ga. 811, 818 (514 SE2d 22) (1999) (Fletcher, R J., dissenting) (for explanation of remainder interests).

At the time D. W. executed the Deed, a then-existing Georgia statute provided that

[i]f the remainderman shall die before the time arrives for possessing his estate in remainder, his heirs shall be entitled to a vested-remainder interest, and to a contingent-remainder interest when the contingency is not as to the person but as to the event. If the contingency shall be as to the person, and that person shall not be in esse at the time when the contingency happens, his heirs shall not be entitled.

Code 1933 § 85-704. As the Supreme Court has explained, “[t]his section simply means that, if remaindermen . . . shall die before the antecedent estate shall terminate and the time arrives for possessing the estate in remainder, the heirs or assigns of such deceased remainderman, if they take at all, will take by inheritance . . . .” Britt v. Fincher, 202 Ga. 661, 663 (3) (44 SE2d 372) (1947).

Although this statute, later revised and re-codified at OCGA § 44-6-63, was repealed in 1994, Ga. L. 1994, p. 364, § 2, the Supreme Court of Georgia has held that this repeal is not to be given retroactive effect because “the presumption is that [a grantor] intended that his property should go where the law carries it. The statutory change in the law [in this case 58 years later] relating to the . . . rights of remaindermen will not be given retrospective effect.” (Citations and punctuation omitted.) Folsom, 281 Ga. at 496 (1). See also Sardy v. Hodge, 264 Ga. 548, 549-550 (448 SE2d 355) (1994). We find, therefore, that Code 1933 § 85-704 governs the interests of any remaindermen under the Deed.

Accordingly, we must construe the Deed’s use of the language, “other living children and their children” in order to identify the remaindermen who received an interest in the Property at Ralph’s death without children. In considering this language, we begin with the general rule that Georgia law favors the early vesting of remainders “in all cases of doubt.” OCGA § 44-6-66 (formerly Code 1933 § 85-708). Therefore, “[i]n construing wills, words of survivorship shall refer to those survivors living at the time of the death of the testator in order to vest remainders unless a manifest intention to the contrary shall appear.” Id. Thus, the Supreme Court of Georgia has held that “[i]n view of the strong preference in Georgia for early vesting, the language required to render a remainder contingent upon surviving the life tenant must be clear and unambiguous.” (Citations omitted.) Usry v. Farr, 274 Ga. 438, 440 (2) (553 SE2d 789) (2001). See also Folsom, 281 Ga. at 497 (1).

The same principles can be applied to a deed, taking into account that the transfer of any future interest in a deed occurs upon execution and delivery of the instrument and not upon some later event (e.g., the grantor’s death). A statute in effect at the time of the Deed’s execution specifically provided that “[a] future interest or estate may be conveyed by deed; but it must operate to transfer the title immediately, or the instrument will be testamentary and revocable.” Code 1933 § 29-103. See also Montgomery v. Reeves, 167 Ga. 623, 626 (146 SE 311) (1929) (a deed transfers title upon the deed’s execution and delivery, even where “the enjoyment of the property conveyed may be postponed until the death of the grantor”) (citations omitted). Therefore, because the transfer of any interest under the Deed occurred immediately upon the Deed’s execution and delivery, we find that the phrase “other living children” necessarily referred to D. W.’s other children living on May 23, 1936.

Moreover, we find that nothing in the Deed’s language clearly and unambiguously imposed a requirement that D. W.’s children survive Ralph. Rather, the use of the phrase “living children” must be interpreted as reflecting D. W.’s intent that no afterborn children would have an interest in the Property; instead, only the four other children living at the time had a remainder interest in the land. The addition of the phrase “or their children” can be interpreted as a limitation on the rule codified in Code 1933 § 85-704 that should any of D. W.’s other children predecease Ralph, their estate would go to their heirs. As drafted, the language of the Deed reflects an intent that only the children of D. W.’s other children, and no other heirs, would receive a remainder, should one of D. W.’s other children predecease Ralph.

Nell argues, however, that because D. W. had no grandchildren when he signed the Deed, the grant of the interest to D. W.’s “other living children or their children” created a contingent remainder as to the person with regard to a class consisting of D. W.’s then unborn grandchildren. She argues that Dixon’s contingency interest, therefore, was limited to uncertain persons, and because he failed to survive Ralph, under Code 1933 § 85-704, his contingent remainder did not pass to his heirs. But Nell’s argument ignores the fact that Dixon was alive at the time his mother died, at which time he took his mother Georgia’s remainder interest by inheritance under the terms of the Deed.

If we apply our state’s policy favoring early vesting and construe Georgia’s interest to have been a vested remainder subject to divestment, Dixon would have received a vested remainder interest in the Property at his mother’s death, subject to divestment if Ralph had children. As the Supreme Court of Georgia has explained:

If the remainderman had at the time of his death prior to the termination of the antecedent estate a vested remainder interest but subject to be divested, his heirs at law would take by descent his interest, subject however to the same divesting contingency; and if the divesting contingency never happened or became impossible, the remainder interest in his heirs at law would ripen into an absolute estate.

Britt, 202 Ga. at 664 (3) (a). But even if we were to construe Georgia’s interest as a contingent remainder, the result would be the same because the contingency of Ralph’s having children never occurred:

If the remainderman at the time of his death prior to the termination of the antecedent estate held only a contingent remainder interest, that is to say, if title to the remainder estate had not vested in him prior to his death, but the contingency was as to an event and not as to the person, then his heirs at law would take by descent the same contingent remainder interest which was held by such deceased remainderman and subject to the same contingent event; the result being that, if title to the remainder would have vested in the deceased remainderman, had he lived until the termination of the antecedent estate, it would likewise vest in his heirs at law.

(Citations omitted.) Britt, 202 Ga. at 664 (3) (a). Therefore, because Ralph died without children, we need not determine whether the interest granted to D. W.’s other children was vested subject to divestment or merely contingent. In either case, we find that Dixon took his interest in the remainder by descent and that this construction is consistent with the language of the Deed that the property pass to D. W.’s “other living children and their children.” Dixon’s interest, in turn, passed to his heirs when he predeceased Ralph. See Folsom, 281 Ga. at 497 (1).

In order to accept Nell’s argument that we should interpret the Deed as imposing a requirement that any remainderman survive Ralph, we would have to ignore our state’s policy favoring early vesting, the provisions of Code 1933 § 85-704, and the rule of construction that a grantor must clearly and unambiguously express such an intent. We also would have to re-write the Deed’s language, changing the phrase “other living children and their children” to read “other living children or their living children.” Such a re-writing conflicts with generally recognized rules of grammar and construction providing that “[t]he word ‘or’ is usually a disjunctive conjunction, indicating an alternative between different things.” (Citation and punctuation omitted.) Aetna Cas. & Sur. Co. v. Barden, 179 Ga. App. 442, 443-444 (1) (346 SE2d 588) (1986). Moreover, “[t]he [courts] may not supply words unless the proof of intention is clear and unquestionable, and the ‘clause as it stands is unintelligible or inoperative.’Former OCGA § 53-2-91 [, formerly Code 1933 § 113-806]. See current OCGA § 53-4-55.” Folsom, 281 Ga. at 497-498 (2). See also McClelland v. Johnson, 211 Ga. 348, 349 (86 SE2d 97) (1955) (“if the clause as it stands may have effect, it shall be so construed,” quoting Code 1933 § 113-806) (punctuation omitted). Because no re-writing is necessary in order to give effect to the Deed’s language, we must apply the language as written. And we find nothing in either that language or Georgia law to support Nell’s argument that D. W. intended to impose a contingency that the remaindermen survive Ralph.

Accordingly, we hold that the “other living children” referenced in the Deed were Georgia, Nell, Davie Lee and Earl, and the phrase “their children” referred to the children of those four individuals. Earl died before Ralph, and the parties do not dispute that his interest lapsed when he died without children. Georgia and Davie Lee also predeceased Ralph, but left children. Under the terms of the Deed, each of those children, Dixon and Wilkes, inherited his mother’s remainder at the time of her death. When Dixon also predeceased Ralph, his interest transferred to his heirs under Code 1933 § 85-704, under the terms of his will, or pursuant to another document transferring title.

Under Georgia law, both vested and future interests, especially those limited to an event not involving survivorship, generally have been considered fully alienable and devisable. See Redfearn, Wills and Administration in Georgia, § 13:14 (7th ed. 2008); Agnor, Future Interests: The Law in Georgia, §§ 3-1, 3-2 (1979). See also OCGA § 44-5-40; Code 1933 § 29-103; Wiley v. Wooten, 140 Ga. 16 (78 SE 335) (1913). Therefore, Dixon was free to assign his interest or to include it in the provisions of his will.

Because Wilkes, as executor, is claiming an interest in the Property on behalf of Dixon’s estate, it appears that Dixon executed a will and may have devised his remainder interest in the Property under that instrument. Alternatively, he could have assigned or transferred his interest in some other fashion. Had Dixon not predeceased Ralph, his interest would have vested absolutely when Ralph died without issue. Because he predeceased Ralph, however, that interest instead became vested in Dixon’s estate upon Ralph’s death if the interest was devised under his will, or if Dixon had otherwise assigned or transferred his interest, it would have vested in the designated recipient. Because neither Dixon’s will nor any other document conveying his interest in the remainder appears in the record, we can only hold that Dixon’s interest vested in either his estate or as he otherwise may have conveyed.

We conclude, therefore, that under the Deed, D. W.’s daughter Nell received a one-third undivided interest in the Property, and Wilkes and Dixon’s estate (or any party to which Dixon may have conveyed his interest) each received a one-third undivided interest. This interpretation gives effect to the Deed as a whole, as well as to the law in effect at the time it was executed and delivered. Accordingly, we reverse the trial court’s order, and hold that at Ralph’s death, a one-third interest in the Property vested in Nell, a one-third interest vested in Wilkes and a one-third interest vested in Dixon’s estate or as he otherwise may have conveyed.

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.

Decided November 12, 2013.

James D. Wilkes, for appellants.

Johnny W. Warren, for appellee.

Appendix 1

       Because this case involves two generations of D. W.’s descendants, we will refer to his children hy their first names and his grandchildren by their last names in an attempt to clarify the parties’ familial relation to one another. A chart showing the familial relationships is attached as Appendix 1 to this opinion.

       The record contains no motion filed by either party and no hearing or trial transcript. Thus, we must presume the trial court based its ruling primarily on the parties’ verified pleadings. In any event, the issue before us is one of law, and the parties apparently stipulated to the underlying facts.

       Although Wilkes originally filed his appeal in the Supreme Court of Georgia, that Court determined that it lacked subject-matter jurisdiction because a declaratory judgment action is not per se an equitable proceeding. The Supreme Court further found that the fact that the appeal requires construction of a deed does not bring it within the Court’s jurisdiction, “particularly where the opposing parties are not both claiming presently enforceable fee simple title to the same real property and neither party is seeking possession. [Cits.]” We note that the parties do not dispute that Nell and Wilkes, individually, share fee simple title and the right to possession to the property, and the only issue is whether Dixon’s estate also has an interest in the property. See Kinnon v. Mercer, 222 Ga. 309 (149 SE2d 685) (1966) (no jurisdiction in Supreme Court when issue is whether plaintiff in possession had fee simple title or a life estate with a remainder interest to his daughter under the terms of a deed).

       We cite to the current version of the statute and note the citation to the Code 1933, which was in effect at the time the Deed was executed, when the language in the Code section has not changed.

       This contingent interest would have vested in any of Ralph’s later born children, but was defeated when Ralph died childless. See Miller v. Brown, 215 Ga. 148, 151-152 (109 SE2d 741) (1959). See also OCGA § 44-6-65 (formerly Code 1933, § 85-706) (“Estates in remainder maybe created for persons not in being. If such a remainder is vested, it will open to take in all persons within the description who come into being up to the time the enjoyment of the estate commences.”).

       Although these cases were construing wills, we see no reason to distinguish between remainders conveyed by will and those conveyed by deed nor any reason that the presumption regarding a testator’s intent would not equally apply to a grantor in a deed. See Baird v. Brookin, 86 Ga. 709 (12 SE 981) (1891) (finding no basis for varying the rules of construction as between deeds and wills).

       This statute was amended in 1994, and now provides that all “[fjuture interests or estates [including contingent interests limited to uncertain persons] are descendible, devisable, and alienable in the same manner as estates in possession.” (Emphasis supplied.) OCGA § 44-5-40. Thus, the result we reach in this case would be the same under current Georgia law.

       We note that nothing in the language of the Deed addresses the alienability or devisahility of interests granted to D. W.’s grandchildren such as Dixon, as the Deed references only D. W.’s other living children’s children. Thus, the Deed imposes no requirement that Dixon’s interest must pass only to his children.

       Here, D. W.’s “other living children” is one thing and “their children” the other. The first phrase places two modifiers on the word children, “other” and “living,” and the second phrase uses only one modifier, “their,” on the word “children.” We know of no justification for transferring one of the two modifiers from the first of the two disjunctives to the other to impose the requirement that any remaindermen survive Ralph.

       This interpretation also is consistent with the other deed in the record executed by D. W. the same day, which granted an interest, jointly and in common, in 164 acres of land to Earl and Nell “during their life and at their death to their children.” That deed also included an alternate remainder, that “[sjhould either the said Earl Wilkes and Nell Wilkes die without issue in that event the interest of either shall go to my other living children or their children.” Moreover, the legal description in the Deed references a third deed, reciting that Ralph’s Property was hounded on the west by certain other property that D. W. had conveyed the same day to “Georgia Wilkes and Davie Lee Wilkes during their lifetime and at their death to their children.” It is apparent, therefore, that D. W. was intending to leave the sum of the property conveyed in these deeds to either his children or any afterborn grandchildren.


author: Boggs, Judge.

text:
    A11A1859.
    SAULS v. THE STATE.
    (751 SE2d 495)
    Decided November 13, 2013.

      Matthew C. Krull, Solicitor-General, Sherrill Britt, Assistant Solicitor-General, for appellant.

      Allen M. Trapp, Jr., for appellee.
   Boggs, Judge.

In Sauls v. State, 293 Ga. 165 (744 SE2d 735) (2013), the Supreme Court reversed the judgment of this Court in State v. Sauls, 315 Ga. App. 98 (728 SE2d 241) (2012). We therefore vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Dillard and Branch, JJ., concur.


author: Branch, Judge.

text:
    A13A0830.
    A13A0831.
    SETTENDOWN PUBLIC UTILITY, LLC et al. v. WATERSCAPE UTILITY, LLC. BUTLER v. WATERSCAPE UTILITY, LLC.
    (751 SE2d 463)
   Branch, Judge.

Settendown Public Utility, LLC, Ken Curren, Camella Curren, and Waterscape Services, LLC (collectively “Settendown”), and their attorney, George E. Butler II, have filed separate direct appeals from an order of the trial court disqualifying Butler from representing Settendown in a lawsuit filed against it by Waterscape Utility, LLC (“Waterscape”). Waterscape filed a motion to dismiss each of these appeals, arguing that an order disqualifying counsel is an interlocutory order and that Settendown and Butler failed to obtain a certificate of immediate review or follow the application procedures required for an interlocutory appeal. We denied the motions to dismiss to allow us to consider Settendown’s argument that there is a conflict in Georgia law on the issue of whether a disqualification order is directly appealable. Having read and considered the relevant case law, we find no such conflict. As explained in our previous decision in Lassiter Properties v. Davidson Mineral Properties, 230 Ga. App. 216-217 (495 SE2d 663) (1998), this issue is controlled by the Supreme Court of Georgia’s decision in Cherry v. Coast House, Ltd., 257 Ga. 403, 404 (2) (359 SE2d 904) (1987), rather than by Stevens v. Thomas, 257 Ga. 645 (361 SE2d 800) (1987). As explained more fully below, Cherry held that an order disqualifying counsel is an interlocutory order. And because neither Butler nor Settendown complied with the requirements for appealing such an order, we are without jurisdiction to consider these appeals. Accordingly, the appeals in both Case Nos. A13A0830 and Al3A0831 are dismissed.

As an initial matter, the Georgia Code limits our jurisdiction to consider direct appeals to specific categories of judgments set forth in subsections (1) through (12) of OCGA § 5-6-34 (a). All other judgments of a trial court are considered interlocutory and are therefore subject to the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b).

Our interlocutory appeal statute is not a run-of-the-mill procedural provision .... It is a jurisdictional law by which the General Assembly has limited the authority of Georgia’s appellate courts to hear certain cases. “When the order appealed from is an interlocutory order, the appellate court does not acquire jurisdiction unless the procedure of OCGA § 5-6-34 (b) for interlocutory appeal is followed.”

(Citation and punctuation omitted; emphasis in original.) American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 644-645 (732 SE2d 746) (2012) (Nahmias, J., concurring specially), quoting Cherry, 257 Ga. at 404 (2).

Orders granting a motion to disqualify an attorney representing one or more parties are not among the categories of judgments for which a right of direct appeal is granted in OCGA § 5-6-34 (a). Thus, both Georgia appellate courts have consistently recognized that disqualification orders are interlocutory and therefore subject to the interlocutory appeal procedure. See Cherry, 257 Ga. at 404 (2) (because a disqualification order is interlocutory, a notice of appeal from such an order does not act as a supersedeas unless the interlocutory appeal procedure has been followed); Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga. App. 493, 495-496 (1) (268 SE2d 733) (1980) (dismissing a direct appeal from an order disqualifying the appellant’s attorney because such an order is interlocutory and appellant failed to follow the required procedure for bringing an interlocutory appeal); Lassiter Properties, 230 Ga. App. at 216-217 (adopting the holding in Ewing).

Settendown and Butler, however, argue that at least one Supreme Court of Georgia case, decided the same term as Cherry, supports the conclusion that an order disqualifying counsel is directly appealable. In Stevens, 257 Ga. 645, a unanimous Supreme Court of Georgia refused to address the appeal of an order disqualifying counsel, which was brought as part of an appeal challenging the award of sanctions and attorney fees against the defendants. One of the sanctions imposed by the trial court was the disqualification of the defendants’ attorney who, together with his clients, had violated a court order to refrain from contacting potential class members. The Supreme Court of Georgia found that the appeals of the disqualification order brought by the attorney and his clients were not timely because “[t]he disqualification was to take place instanter and was thus immediately appealable. The fact that the amount of attorney fees was not set until a later date does not affect the status of the disqualification as a final, appealable order.” Stevens, 257 Ga. at 647 (1).

As we explained in Lassiter Properties, however, we decline to read this statement, which was unsupported by any citation to legal authority or any legal analysis and which failed to acknowledge the court’s earlier decision in Cherry, as providing us with a basis for revisiting the question of whether disqualification orders are directly appealable. Rather, we view this issue as being “controlled by Cherry v. Coast House, Ltd., . . . which appears to be the latest definitive statement by the Supreme Court [of Georgia] on the issue.” Lassiter Properties, 230 Ga. App. at 218.

As we are holding that disqualification orders are interlocutory and because the procedures for appealing such an order were not followed, the only way we could acquire jurisdiction over this appeal would be if disqualification orders were considered collateral orders.

The United States Supreme Court has long recognized the collateral order doctrine as an exception to the final judgment rule, see Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546-547 (69 SCt 1221, 93 LE 1528) (1949), and the Supreme Court of Georgia adopted the collateral order doctrine in 1982. See Scroggins v. Edmondson, 250 Ga. 430, 431-432 (1) (c) (297 SE2d 469) (1982); Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982). To be directly appealable under the collateral order doctrine, an order must “completely and conclusively decide [ ] the issue on appeal such that nothing in the underlying action can affect it; . . . resolve [ ] an issue that is substantially separate from the basic issues in the complaint; and [be] effectively unreviewable on appeal [from a final judgment].” Murphy v. Murphy, 322 Ga. App. 829, 831 (747 SE2d 21) (2013) (whole court). See also Coopers & Lybrand v. Livesay, 437 U. S. 463, 468-469 (I) (98 SCt 2454, 57 LE2d 351) (1978) (denial of class certification does not constitute a collateral order because such an order is subject to revision in the district court, involves considerations that are enmeshed in the factual and legal issues of the plaintiff’s case, and is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members); Britt v. State, 282 Ga. 746, 748 (1) (653 SE2d 713) (2007) (order granting a motion to compel documents related to the funding of Georgia’s indigent defense system was a collateral order as it was completely unrelated to the defendant’s guilt or innocence, the appeal would conclusively resolve the discovery issue, and “the important rights of a number of indigent capital defendants would be compromised if [they] had to await final judgment before seeking review of the discovery order”). We find that disqualification orders do not constitute collateral orders because, despite Settendown’s and Butler’s arguments to the contrary, such orders may be effectively reviewed on appeal from a final judgment.

In determining whether a matter is subject to effective appellate review, we ask whether the relief sought would be barred by the entry of final judgment in the trial court. Murphy, 322 Ga. App. at 832 (holding that denials of a motion to recuse the trial judge are not collateral orders “because the parties’ interests can be protected adequately in an appeal from a final judgment”). The fact that a ruling “may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final [trial] court judgment” is not sufficient to satisfy the requirement that an order be effectively unreviewable. Digital Equip. Corp. v. Desktop Direct, 511 U. S. 863, 871-872 (II) (D) (114 SCt 1992, 128 LE2d 842) (1994). See also Richardson-Merrell v. Koller, 472 U. S. 424, 430-431 (II) (105 SCt 2757, 86 LE2d 340) (1985) (“[t]he collateral order doctrine is a narrow exception whose reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal”) (citations and punctuation omitted; emphasis supplied). Where effective relief would be available on appeal from a final judgment, therefore, Georgia’s appellate courts have “ ‘routinely require [d] litigants to wait until after final judgment to vindicate’ ” even those rights that are “ ‘central to our adversarial system.’ ” Expedia v. City of Columbus, 305 Ga. App. 450, 453 (1) (699 SE2d 600) (2010) (holding that orders adverse to claims of privilege, including the attorney-client privilege, are subject to effective appellate review and are therefore not collateral orders), quoting Mohawk Indus. v. Carpenter, 558 U. S. 100, 108-109(II) (B) (130 SCt 599, 175 LE2d 458) (2009). See also Gen. Motors Corp. v. Hammock, 255 Ga. App. 131, 131-132 (564 SE2d 536) (2002) (orders compelling discovery are not collateral orders).

Further, in Richardson-Merrell, the United States Supreme Court acknowledged “that an order disqualifying counsel may impose significant hardship on litigants,” and noted that, “[particularly where the grounds for disqualification are troubling, this hardship may tempt courts of appeals to assert jurisdiction pursuant to” the collateral order doctrine. 472 U. S. at 440 (IV). The Court then stated that appellate courts should avoid this temptation, explaining:

It would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon the deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appealability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by Congress. [Accordingly], we decline to transform the limited exception carved out in Cohen into a license for broad disregard of the [final judgment] rule---We hold that orders disqualifying counsel in civil cases, like orders disqualifying counsel in criminal cases and orders denying a motion to disqualify in civil cases, are not collateral orders subject to appeal as “final judgments” [pursuant to the collateral order doctrine].

(Citations and punctuation omitted.) Id.

We need not succumb to such temptation in this case. Even in the absence of an interlocutory appeal, relief from an erroneous disqualification order is available on appeal from a final judgment. Specifically, such an error may serve as the basis for a new trial motion. See Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 378 (II) (101 SCt 669, 66 LE2d 571) (1981) (a trial court’s erroneous ruling on a motion to disqualify counsel can be remedied on appeal by “vacating] the judgment appealed from and ordering] a new trial”); Fidelity Nat. Title Ins. Co. of New York v. Intercounty Nat. Title Ins. Co., 310 F3d 537, 539 (7th Cir. 2002) (“incorrect decisions about disqualification may justify reversal at the end of the case”). See also Murphy, 322 Ga. App. at 830 (noting that the remedy for the erroneous denial of a motion to recuse the trial judge is the grant of a new trial); Expedia, 305 Ga. App. at 453 (1) (an order erroneously requiring the improper disclosure of privileged material may be remedied by the appellate courts “by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence”) (citation and punctuation omitted). Accordingly, like the majority of courts to address this issue, including the United States Supreme Court, we hold that because orders granting or denying a motion to disqualify counsel are fully reviewable on appeal from a final judgment, the collateral order doctrine does not apply. See Richardson-Merrell, 472 U. S. at 440 (IV) (orders granting a disqualification order are not appealable under the collateral order doctrine); Firestone Tire & Rubber Co., 449 U. S. at 377 (II) (“[a]n order refusing to disqualify counsel plainly falls within the large class of orders that are indeed reviewable on appeal after final judgment, and not with in the much smaller class of those that are not”); Fiber Materials v. Subilia, 974 A2d 918, 927 (II) (A) (2) (Me. 2009) (because disqualification orders are subject to effective appellate review they are not collateral orders); Flores Rentals v. Flores, 283 Kan. 476, 491 (153 P3d 523) (2007) (disqualification orders are interlocutory, rather than collateral); Vaccone v. Syken, 587 Pa. 380, 386 (899 A2d 1103) (2006) (“orders disqualifying counsel in civil cases are not collateral orders subject to appeal”); Acierno v. Hayward, 859 A2d 617, 620 (Del. 2004) (same); Travco Hotels v. Piedmont Natural Gas Co., 332 N. C. 288, 291 (420 SE2d 426) (1992) (same). But see PCG Trading v. Seyfarth Shaw, 460 Mass. 265, 269 (1), n. 6 (951 NE2d 315) (2011) (under Massachusetts law “[a]n order granting a motion to disqualify counsel has traditionally been held to be a final judgment and therefore immediately appealable under the collateral order doctrine”); Jacob North Printing Co. v. Mosley, 279 Neb. 585, 587-588 (779 NW2d 596) (2010) (under Nebraska law, orders disqualifying attorneys are considered collateral orders and are directly appealable).

Decided November 13, 2013

George E. Butler II, for appellants.

Anderson, Tate & Carr, Robert M. Reeves, for appellee.

Because the disqualification order at issue is interlocutory, and not collateral, it is not within “this Court’s discretion to consider the disqualification of [Butler] by direct appeal at this time.” Lassiter Properties, 230 Ga. App. at 218. The appeals in Case Nos. A13A0830 and A13A0831 are therefore dismissed as premature. Id. Settendown’s and Butler’s recent motions to stay a decision in these appeals are hereby denied as moot.

Appeals dismissed in Case Nos. Al 3A0830and Al 3A0831.

Phipps, C. J., and Ellington, P. J., concur.

       This is the second appearance of this case before this Court. The trial court entered the order granting Waterscape’s motion to disqualify Butler on October 8, 2012. On October 17, 2012, Settendown filed a motion for a certificate of immediate review of the disqualification order. The trial court failed to rule on that motion by October 18, thereby implicitly denying it. See OCGA § 5-6-34 (b) (certificates for immediate review must be issued within ten days of the entry of the order being certified). On October 25, 2012, Settendown filed the current direct appeal to this Court (Case No. A13A0830), and Butler filed a separate direct appeal (Case No. A13A0831). Approximately two weeks later, on November 7, 2012, Settendown filed an application for a discretionary appeal from the disqualification order. Settendown Public Utility, LLC v. Waterscape Utility, LLC, Case No. A13D0122. We denied that application on November 20, 2012, finding that the order disqualifying Butler was interlocutory and that Settendown had failed to obtain a certificate of immediate review. See OCGA § 5-6-34 (b). Settendown then filed a petition for certiorari to the Supreme Court of Georgia, arguing that there was a conflict in Georgia law on the question of whether a disqualification order is directly appealable. Settendown Public Utility, LLC v. Waterscape Utility, LLC, Case No. S13C0585. The Supreme Court denied that petition on May 6, 2013.

       Under Georgia law, a party may seek review of a disqualification order by availing itself of the procedures for an interlocutory appeal set forth in OCGA § 5-6-34 (b). See, e.g., Redd v. State, 264 Ga. 399 (444 SE2d 776) (1994) (“[t]he case is before the court from the grant of William S. Redd’s application for interlocutory appeal from an order of the trial court granting the [S]tate’s motion to disqualify his attorney”).

       Nor do we find any merit in Butler’s argument that this Court’s holding in Lassiter Properties gives him, as the disqualified attorney, the right of direct appeal. In attempting to distinguish the facts in Lassiter Properties from those in Stevens, the Lassiter Properties court observed that in Stevens it was the attorney, rather than the client, who was seeking to appeal the disqualification order. This attempted distinction, however, is an inaccurate description of the procedural posture of Stevens; that opinion expressly states that “[b]oth the [clients] and [the attorney] appeal from the orders . . . disqualifying [the attorney] and awarding attorney fees to the plaintiffs.” Stevens, 257 Ga. at 646 (1). But in any event, the unsuccessful attempt by Lassiter Properties to distinguish Stevens does not represent a holding that an attorney has the right to file a direct appeal from an order disqualifying him. Furthermore, a disqualified attorney’s personal desire for vindication does not constitute an independent basis for an interlocutory appeal.
      An attorney who is disqualified . . . may well have a personal interest in pursuing an immediate appeal, an interest which need not coincide with the interests of the client. As a matter of professional ethics, however, the decision to appeal should turn entirely on the client’s interest. See ABAModel Rules of Professional Conduct 1.7(b), 2.1 (1985).

        Richardson-Merrell v. Roller, 472 U. S. 424, 434-435 (III) (A) (105 SCt 2757, 86 LE2d 340) (1985) (holding that an ‘‘attorney’s personal interest in a disqualification ruling” is neither “relevant [n]or dispositive” to the question of whether such a ruling is immediately appealable).

       Under the final judgment rule, a party does not have the right to a direct appeal of any ruling of the trial court until that court has entered a final judgment on the merits of the case. See, e.g., Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (II) (101 SCt 669, 66 LE2d 571) (1981); 28 USC § 1291. See also OCGA § 5-6-34 (a) (1) (a judgment is final when “the case is no longer pending in the court below”).

       This case does not require us to decide the standard of review in an appeal from a final judgment where a claim of error is based on the grant or denial of a disqualification order.


text:
    A13A0909.
    DENNIS v. CITY OF ATLANTA.
    (751 SE2d 469)
   Boggs, Judge.

Alice Dennis, as guardian and conservator of an adult ward, Gloris R. Mason (“plaintiff”), appeals from the trial court’s grant of the City of Atlanta’s motion to dismiss her complaint on the grounds that it was barred by the terms of a release. The plaintiff contends that the trial court erred because: (1) the release does not bar future unknown claims which were not brought in the previous complaint; (2) it should have treated the motion to dismiss as one for summary judgment and granted her an opportunity to submit a complete record of a 2006 lawsuit; and (3) the release violated public policy. For the reasons explained below, we affirm.

On appeal, we review the trial court’s grant of a motion to dismiss de novo. South Point Retail Partners v. North American Properties Atlanta, 304 Ga. App. 419, 420 (696 SE2d 136) (2010).

A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525, 525-526 (1) (668 SE2d 723) (2008).

2008 Release

The record shows that in 2006, the plaintiff, along with other nearby homeowners, sued the City for failing to adequately maintain the sewer and storm water drainage system serving their homes and neighborhood. In 2008, the plaintiff settled her claim for $220,922.47 and executed a document titled “FULL, COMPLETE AND GENERAL RELEASE.” This document provides:

The undersigned ... do hereby release and forever discharge ... the CITY OF ATLANTA, GEORGIA, .. . from any and all actions, causes of action, cause of action, suits, proceedings, damages, costs, loss of services, expenses, obligations, claims and demands whatsoever, whether in law or in equity, known or unknown, foreseen or unforeseen, which RELEASORS may have or which may hereafter accrue, in any way resulting from or arising out of any incident referenced in and/or any allegations brought or which could have been brought in the [2006] Complaint filed by . . . Dennis. [(Emphasis supplied.)]
. . . RELEASORS understand and agree that this payment is intended to and does extinguish any and all claims... against any released party, which it may not have for any injuries resulting from or arising out of the matters referenced in the [2006 action].

2006 Complaint

The 2006 complaint included the following allegations:

As part and parcel of the CITY OF ATLANTA’S duty to protect the health, safety and welfare of its citizens and their property, the CITY OF ATLANTA has a duty to properly maintain a sewer and storm water drainage system. . . .
The CITY OF ATLANTA’S sewer and storm water drainage system serving Plaintiffs’ homes and neighborhood has not been maintained in any appreciable way since the date of its construction, despite continuing growth and development in this area.
The aforementioned sewer and storm water drainage system is in such a deteriorated condition that it fails to function as originally designed.
The continuing and persistent flooding of Plaintiffs’ homes and neighborhood results from the CITY OF ATLANTA’S failure to resolve problems with its sewer and storm water drainage system, as follows:

(b) the CITY OF ATLANTA has failed to update the sewer and storm water drainage system to meet the demands of continuing growth and development in Plaintiffs’ neighborhood, which causes and contributes to sewer backups and storm water flooding;

(c) the CITY OF ATLANTA has failed to properly repair, replace and maintain its aging and deteriorating sewer and storm water drainage system, which causes and contributes to sewer backups and storm water flooding;

The CITY OF ATLANTA, at all times relevant to this action, had a legal duty to construct, replace and/or maintain the sewer and storm water drainage system in Plaintiffs’ neighborhood in such a manner that it does not create a nuisance.

As a result of this continuing and persistent flooding in the [area] where Plaintiffs’ homes are located, the utility and value of MS. MASON’s home is substantially diminished. In addition, her home and property are contaminated.

The CITY OF ATLANTA is chargeable with the continuous and persistent failure to update its sewer and storm water drainage system to meet the demands of continuing growth and development in Plaintiffs’ neighborhood, which has created continuous and regularly repetitious sewer and storm water leaks, overflows, backups and blowouts, causing hurts, inconvenience and injury to Plaintiffs.

The CITY OF ATLANTA is chargeable with the continuous and persistent failure to properly repair, replace and maintain its aging and deteriorating sewer and storm water drainage system, which has created continuous and regularly repetitious sewer and storm water leaks, overflows, backups and blowouts, causing hurt, inconvenience and injury to the plaintiffs.

The CITY OF ATLANTA has created and maintained a continuing nuisance within, around and among the neighborhood, homes and property of Plaintiffs, which diminishes the value of their homes and property; which interferes with their use and enjoyment of their homes and property; and which results in injury, annoyance and harm to Plaintiffs.

Plaintiffs have suffered and continue to suffer from sewer and storm water flooding . . . , which diminishes the value of their homes and property; interferes with their use and enjoyment of their homes and property; and causes injury, annoyance and harm to Plaintiffs.

2012 Complaint

In 2012, Plaintiff, represented by the same attorney, filed a nearly identical complaint against the City that included the following allegations:

For many years, the neighborhood where Plaintiff’s property is located has been plagued with continuing and persistent sewer backups, resulting from the CITY OF ATLANTA’S failure to construct and maintain a functional sanitary sewer system in her neighborhood.
The CITY OF ATLANTA’S sewer system serving Plaintiff’s home and neighborhood has not been expanded or maintained in any appreciable way since the date of its construction, despite continuing growth and development in the area.
Due to the failure and inadequacies of the CITY OF ATLANTA’S sanitary sewer system, as described herein, sewage frequently backups [sic] into Plaintiff’s home and other homes in the neighborhood.
The CITY OF ATLANTA is chargeable with the continuous and persistent failure to make needed and necessary repairs to prevent the sewer system from creating continuous and regularly repetitious sewer problems and backups at Plaintiff’s home, causing hurt, inconvenience and injury to Plaintiff.
The CITY OF ATLANTA has created and maintained a continuing nuisance within, around and among Plaintiff’s neighborhood and property, which diminishes the value of Plaintiff’s property; which interferes with the use and enjoyment of her property; and which results in injury, annoyance and harm to plaintiff.

The plaintiff also asserted a claim for the City’s failure to comply with two consent decrees obligating the City “to evaluate and implement short and long-term plans for eliminating water quality violations, resulting from combined sewer overflows and sanitary sewer overflows.” She contended that the City’s “failure to perform its ministerial duties relating to the [consent decrees]” diminished the value of her property.

Dismissal of 2012 Complaint

The City moved for judgment on the pleadings, asserting that the release applied to claims accruing in the future. Following a hearing, the trial court issued a well-reasoned order in which it concluded “that Plaintiff, in exchange for the $220,922.47 settlement payment, released any future claims she might have arising from the allegations brought in her complaint in the 2006 action.”

1. The plaintiff asserts that the trial court erred by applying the release to future unknown claims. We disagree.

Georgia law allows a party to release another from liability for future conduct and unknown claims, provided such intent is clearly expressed in the release. See U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 298 (2) (443 SE2d 833) (1994); Lewis v. Schlenz, 161 Ga. App. 222, 224-225 (1) (291 SE2d 55) (1982). An examination of the plain and unequivocal language of the release at issue here confirms that the parties intended that it apply to the allegations in the Plaintiff’s 2012 complaint. Specifically, the plaintiff released the City

from any and all actions, . . . whatsoever, . . . known or unknown, foreseen or unforeseen, which RELEASORS may have or which may hereafter accrue, in any way resulting from or arising out of any incident referenced in and/or any allegations brought or which could have been brought in the [2006] Complaint filed by . . . Dennis.

(Emphasis supplied.) This provision makes it clear that the claims in the plaintiff’s 2012 complaint fall within the scope of the release, even if some of the claims had not yet accrued at the time of the settlement.

Both the 2006 and 2012 complaints contain allegations that the City failed to properly maintain, update, and repair its sewer system, resulting in sewer backups in the plaintiff’s neighborhood and diminished property values. While the 2012 complaint also includes an allegation regarding the City’s failure to comply with consent decrees, these consent decrees arise out of matters referenced in the 2006 complaint. The trial court therefore did not err by granting the City’s motion to dismiss.

2. Based upon the plain and unequivocal language of the release, we find no merit in the plaintiff’s claim that the trial court should have treated the City’s motion to dismiss as one for summary judgment and allowed her to submit “a full record of the facts relevant to the 2006 and 2012 lawsuits.” As an initial matter, we note that the exhibits attached to and referenced in the City’s answer, the 2006 complaint and the 2008 release, did not convert the City’s motion to dismiss into one for summary judgment. A trial court may consider exhibits attached to and incorporated into the pleadings when ruling upon a motion to dismiss. See, e.g., Poole v. In Home Health, 321 Ga. App. 674, n. 1 (742 SE2d 492) (2013).

And as the trial court correctly concluded,

discovery might be relevant if it were necessary to determine whether allegations of sewer backups could have been brought by Plaintiff in her complaint in the 2006 Action. Because such allegations were plainly brought in the 2006 complaint, however, the discovery proposed by plaintiff is irrelevant and unnecessary.

(Emphasis in original.)

Additionally, whether the plaintiff actually sustained and sought damages for sewer backups in the 2006 complaint is immaterial based upon the plain language of the release. Because the 2006 complaint contained allegations of continuous sewer backups, the plaintiff’s 2012 complaint for damages based upon sewer backups is barred by the release.

3. We find no merit in the plaintiff’s remaining claim that enforcing the release to bar her 2012 complaint would violate public policy. As we have already noted in Division 1, Georgia law allows a party to release another from liability for future conduct and unknown claims, provided such intent is clearly expressed in the release, as it was in the release at issue here. See U. S. Anchor Mfg., supra, 264 Ga. at 298 (2); Lewis, supra, 161 Ga. App. at 224-225 (1). Moreover, “the strong public policy” of this State is to encourage settlement negotiations and settlement. Smith v. Salon Baptiste, 287 Ga. 23, 29 (2) (694 SE2d 83) (2010). In this case, the City paid a substantial sum to the plaintiff in exchange for a release of all claims, including future unknown claims, arising out of sewer backups and storm water drainage problems. The release at issue here does not violate public policy.

Decided November 13, 2013.

Martin & Jones, Samuel L. Starks, for appellant.

Eric A. Richardson, Torrey D. Smith, for appellee.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       The release was executed by Alice Dennis, as guardian for Gloris Mason.

       Plaintiff asserts that Georgia authority allows continuing nuisance claims to be brought in multiple actions. This may well be true, but the general law relied upon by the plaintiff does not address the terms of a release of future unknown nuisance claims. See, e.g., City of Atlanta v. Kleber, 285 Ga. 413 (677 SE2d 134) (2009) (addressing statute of limitation in continuing nuisance case).