CARDINAL ROBOTICS, INC. v. Moody
CARDINAL ROBOTICS, INC. v. Moody
Concurring Opinion
concurring.
Although I concur fully in the majority opinion, I write sepa
Opinion of the Court
This is an appeal from orders issued in relation to an action to partition real property in Fannin County. The challenge made is to the refusal to disqualify counsel and its alleged effect on the propriety of the trial court’s entry of other rulings. For the reasons that follow, we affirm.
The present action for the partition of real property followed other litigation involving claims brought by Cardinal Robotics, Inc. (“CR”) against multiple defendants to quiet title and for encroachment and trespass regarding the real property. Following the affirmance of the grant of summary judgment to CR on a counterclaim lodged against it, the action was returned to the trial court. See City of McCaysville v. Cardinal Robotics, 263 Ga. App. 847 (589 SE2d 614) (2003).
In order to understand what transpired upon the return of the quiet title case to the trial court, it is necessary to identify the
Thereafter, L. Moody wished to exercise his ownership rights under the quitclaim deed and have the property partitioned and sold. Represented by attorneys Flint and Anderson of Flint & Connolly, on May 24, 2007, L. Moody filed the present complaint against CR for partition and sale of the property. During the course of this litigation, on October 29, 2007, L. Moody passed away, and David Moody, as executor of L. Moody’s estate (“Moody”) was substituted as plaintiff in the action. CR was initially unrepresented by counsel and the case went into default. On August 6, 2007, L. Moody had filed a motion for default judgment against CR. On May 13, 2008, the trial court entered an order, inter alia, granting the motion for default judgment. On May 23, 2008, CR, now represented by counsel, moved to open and set aside the default judgment pursuant to OCGA § 9-11-55 (b).
CR filed a notice of appeal to the Court of Appeals, and the appeal was dismissed as procedurally infirm on January 9, 2009. On January 15, 2009, the trial court issued a written order denying the motion to disqualify Flint & Connolly. In that order, the court found: Flint & Connolly represented CR for a period of three days; the representation included appearing in superior court in the one case which was dismissed on October 2, 2006; the firm acted as counsel for CR in such case at the direction of L. Moody, who had been given control of the litigation by CR; L. Moody filed the present complaint for partition with the firm acting as his counsel; on or about September 30, 2006, CR had delivered by quitclaim deed a 50.1% interest in the real property to L. Moody, and Flint & Connolly were not involved in the execution of that deed; on or about March 13, 2007, during the time of dialogue between CR’s principals and Attorney Anderson, Flint & Connolly no longer represented CR; the earlier case and the present partition action are not similar cases causing a conflict for Flint & Connolly; and there were no representations made by Flint & Connolly to CR about the land involved in this litigation. On February 26, 2009, the trial court issued an order directing that the property be sold. CR filed an application for discretionary appeal, seeking to appeal both the order of sale and the order of disqualification. This Court granted the application pursuant to OCGA § 5-6-35 (j).
CR contends that the superior court erred in denying its motion to disqualify Flint & Connolly from representing Moody, and thereby, erred by proceeding to hear and decide the motion to open default and entering the consequent order for the sale of the subject property. Thus, CR’s entire premise is that the alleged error in the trial court’s refusal to disqualify the Flint & Connolly lawyers either prevented the court from ruling on the attempted opening of the default and the resulting sale of the property or rendered such orders void ab initio.
Initially, pretermitting the question of the dispositive nature of the disqualification issue, CR has made no showing that the trial court was substantively in error in rejecting CR’s attempt to open the default under the “providential cause” or “excusable neglect” provisions of OCGA § 9-11-55 (b). As noted, in this case, the trial court heard all of the evidence and determined that none of the grounds under OCGA § 9-11-55 were met, including that of a “proper case” being made for opening the default. While the “proper case” ground is broader than the others, it does not give a trial court the authority to open a default for any reason whatsoever. In the Matter of Turk, 267 Ga. 30, 31 (1) (471 SE2d 842) (1996). Insofar, as the “proper case” ground implicates the disqualification issue, CR falls short in its showing in this regard as well.
As the party seeking disqualification, CR had the burden to demonstrate to the superior court that disqualification was warranted, and it had to do so by showing that the matters embraced within the pending suit are substantially related to the matters or the cause of action involved in the previous representation. Outdoor Advertising Assn. of Ga., Inc. v. Garden Club of Ga., Inc., 272 Ga. 146, 150 (2) (a) (527 SE2d 856) (2000); Dismuke v. C & S Trust Co., 261 Ga. 525, 527 (3) (407 SE2d 739) (1991). To be “substantially related” for the purpose of assessing the need for disqualification means that the former case in which the lawyer was involved has both material as well as logical connections to the pending litigation, and as noted, the party seeking the disqualification must establish the existence of such a substantial relationship. Benson v. McNutt, 289 Ga. App. 565 (657 SE2d 639) (2008); Duvall v. Bledsoe, 274 Ga. App. 256, 258 (617 SE2d 601) (2005). Here, the superior court found that CR failed to make this required showing, i.e., that there were material and logical connections between the prior action in which
This Court’s review of a trial court’s ruling on a motion to disqualify is subject to an abuse of discretion standard. Outdoor Advertising Assn. of Ga., Inc. v. Garden Club of Ga., Inc., supra at 151 (2) (c). Such a standard is appropriate because both the trial court and the appellate court must be mindful that the client’s right to counsel of choice is an important interest which requires that any curtailment of it be approached with great caution. Id.; Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981). Simply, CR has failed to show an abuse of discretion in the trial court’s refusal to disqualify the attorneys and law firm in question, nor has it provided any other basis to nullify the trial court’s rulings regarding the default judgment and the sale of the property.
Judgments affirmed.
OCGA § 9-11-55 (b) provides:
At any time before final judgment, the court, in its discretion, upon payment of
On July 18,2008, CR moved to disqualify another of Moody’s attorneys, not part of Flint & Connolly, and that attorney’s law firm, and the superior court granted the requested disqualification. In that instance, McDaniel averred in affidavit, inter alia, that he had discussed in some detail with the attorney the partition action and the default, and CR’s defenses and positions with regard to the action and had attempted to retain the attorney to represent CR in opening the default.
OCGA § 5-6-35 (j) states:
When an appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not in subsection (a) of this Code section, is initiated by filing an otherwise
In its proffered answer filed along with its motion to open and set aside the default judgment, CR alleged, inter alia, that the quitclaim deed granted to L. Moody was obtained as the result of fraud, deceit, and duress on the part of L. Moody and his agents; such allegation challenging L. Moody’s rightful ownership of the property implicates the Flint & Connolly attorneys as well; however, CR has failed to point to any evidence of record which substantiates such claims.
Reference
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- Cardinal Robotics, Inc. v. Moody
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