Bayshore Ford Truck Sales, Inc. v. Ford Motor Co.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 13, 2004
No. 03-13103 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 99-00173-CV-RLV-4

BAYSHORE FORD TRUCK SALES, INC.
HEINTZELMAN’S TRUCK CENTER, INC., et al.,

Plaintiffs-Appellants,

versus

FORD MOTOR COMPANY,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(August 13, 2004)

Before BARKETT and KRAVITCH, Circuit Judges, and FORRESTER*, District
Judge.

*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
FORRESTER, District Judge:

Bayshore Ford Truck Sales, Inc., Heintzelman’s Truck Center, Inc., LJL

Truck Center, Inc., Peach State Ford Truck Sales, Inc., and Valley Ford Truck

Sales, Inc. (the “Dealers”), appeal from the district court’s award of summary

judgment to Ford Motor Company on a breach of contract claim. The Dealers also

appeal an earlier order of the district court denying a motion to disqualify Ford’s

local counsel, the law firm of Sutherland Asbill & Brennan LLP.

The Dealers all became authorized Ford dealers between 1973 and 1987 by

signing two franchise contracts with Ford, one to sell medium trucks and one to

sell heavy duty trucks.1 The Dealers competed amongst themselves, as well as

other Ford and dealers of other brands, on a nationwide basis. In its sales system,

Ford manufactured its truck platform, essentially a bare chassis, at a Kentucky

plant; after delivery to a dealership, the trucks were subsequently modified and

customized to suit the particular needs of their purchasers. Authorized dealers

purchase these trucks from Ford at wholesale prices established by the company.

Originally, these wholesale prices were published in bulletins distributed

uniformly to all Ford dealers. In the early 1980s, however, Ford established a new

1
The parties agree that the program in dispute applied equally to medium and heavy duty
trucks. Accordingly, we will not distinguish between the two types of products and simply refer
to “trucks” throughout this opinion.

2
pricing system for its trucks. In the new pricing system, Ford’s stated wholesale

prices were allegedly set at a level above market price. Ford also established a

Competitive Price Assistance program (“CPA”), consisting in a two-part program

to discount its wholesale prices. The first level of CPA, called Sales Advantage

CPA, provided a standard reduction of the published wholesale price by means of

a formula known to all dealers.2 This first level of pricing assistance, published to

the Dealers by Ford, allowed a dealer to calculate the “true” dealer cost of a truck.

Ford’s new pricing system also featured Appeal-Level CPA, a program that

allowed individual dealers to appeal to Ford for a case-by-case reduction in

wholesale price in addition to the price reductions secured by Sales Advantage

CPA. In order to obtain this second price reduction, the dealer was required to

provide Ford with specific information about the pending transaction at issue so

that Ford could determine whether additional CPA benefits were warranted. Ford

could then choose whether or not to grant the dealer’s request for further

reductions on wholesale pricing, sending its response to the dealer by facsimile.

2
Originally Sales Advantage CPA was called Rainbow Schedule CPA, but there are no
distinctions between the two CPA programs that are material to this case. Whether called Sales
Advantage or Rainbow Schedule CPA, the Dealers do not allege that this particular facet of CPA
breaches the franchise contract.

3
All Dealers participated in Ford’s new pricing system, utilizing both Sales

Advantage and Appeal-Level CPA to sell trucks.

The dispute between the parties revolves around the terms of the Sales and

Service Agreements, Ford’s standard contract with its medium and heavy-duty

truck dealers. Paragraph 10 of the Ford Truck and Heavy Duty Truck Sales and

Service Agreement reads as follows:3

Sales of COMPANY PRODUCTS by the Company to the
Dealer hereunder will be made in accordance with the prices, charges,
discounts and other terms of sale set forth in price schedules or other
notices published by the Company to the Dealer from time to time in
accordance with the applicable HEAVY DUTY TRUCK TERMS OF
SALE BULLETIN or PARTS AND ACCESSORIES TERMS OF
SALE BULLETIN. Except as otherwise specified in writing by the
Company, such price, charges, discounts and terms of sale shall be
those in effect, and delivery to the Dealer shall be deemed to have
been made and the order deemed to have been filled on the date of
delivery to the carrier or the Dealer, whichever occurs first. The
Company has the right at any time and from time to time to change or
eliminate prices, charges, discounts, allowances, rebates, refunds or
other terms of sale affecting COMPANY PRODUCTS by issuing a
new HEAVY DUTY TRUCK or PARTS AND ACCESSORIES
TERMS OF SALE BULLETIN, new price schedules or other notices.
In the event the Company shall increase the DEALER PRICE for any
COMPANY PRODUCT, the Dealer shall have the right to cancel, by
notice to the company within ten (10) days after receipt by the Dealer
of notice of such increase, any orders for such product placed by the
Dealer with the Company prior to receipt by the Dealer of notice of

3
In the Ford Truck Sales and Service Agreements, the term “HEAVY DUTY TRUCK” is
replaced with the term “TRUCK.” With an exception discussed below, the two contracts are
materially identical in terms.

4
 such increase and unfilled at the time of receipt by the Company of
such notice of cancellation.

R11-13. While this language is common to both the regular truck and heavy duty

truck contract, paragraph 10 of the heavy duty truck contract contains additional

language absent from the Ford Truck Sales and Service Agreement.

The Company shall make available to the Dealer price
schedules for HEAVY DUTY TRUCKS for distribution to
Authorized Ford Truck dealers in the DEALER’S LOCALITY, or the
Company may directly distribute such price schedules to such dealers.
Such price schedules shall not make reference to HEAVY DUTY
TRUCK deposits, allowances or other programs for which Authorized
Ford Truck dealers are not eligible.

R12-14. In the Heavy Duty Truck Sales and Service Agreement, this language is

simply an additional paragraph inserted at the end of Paragraph 10. The parties

dispute whether Ford’s Appeal-Level CPA program constitutes a proper means of

establishing and publishing prices to its authorized dealers under the terms of the

Sales and Service Agreement.

The allegations of breach of contract also extend to a separate provision of

the Sales and Service Agreement, Paragraph 30, which governs notices.

Any notice required or permitted by this agreement, or given in
connection herewith, shall be in writing and shall be given by
personal delivery or by first-class or certified or registered mail,
postage prepaid. Notices to the Company shall be delivered to or
addressed to the District Sales Manager of the area in which the
Dealer is located except notices given by the Dealer either to the

5
 Policy Board or pursuant to the Arbitration Plan. Notices to the
Dealer shall be delivered to any person designated in paragraph F(ii)
of this agreement or directed to the Dealer at the Dealer’s principal
place of business as described herein.
R12-30. The parties disagree as to whether Ford’s use of facsimile to transmit

price information in its Appeal-Level CPA program violates this provision of the

contract, and further dispute whether the Dealers have waived this argument by

their actions.

The contract disputes are not the only points of contention between Ford

and the Dealers, as the parties also contest the propriety of Ford’s representation

by the law firm of Sutherland Asbill & Brennan LLP (“Sutherland”). Mr. Charles

Ganz joined Sutherland in 1998 as a lateral partner. When Mr. Ganz moved to

Sutherland, his retained clients, Peach State Ford and owner Tom Reynolds,

became Sutherland clients. As counsel for Peach State and Mr. Reynolds, Mr.

Ganz had maintained Peach State’s corporate minutes, filed materials with

regulatory agencies, and prepared trade name registrations. Mr. Ganz had also

maintained Peach State’s corporate minutes and served as its assistant secretary, a

position which entailed updating corporate minutes and attesting to corporate

documents. After joining Sutherland, Mr. Ganz and other firm lawyers aided Mr.

Reynolds and his wife with estate matters.

6
 Sutherland had a long-standing relationship with Ford predating Mr. Ganz’

arrival at the firm, having represented Ford for more than thirty years.

Accordingly, Sutherland represented Ford in the instant case, which was filed by

the Dealers on July 1, 1999. Once the potential conflict of interest was

discovered, Peach State and Reynolds refused to grant Sutherland’s request to

waive any conflict. Sutherland subsequently released Peach State and Reynolds as

clients in November 1999. Peach State sought Sutherland’s disqualification as

Ford’s local counsel, and the district court held a hearing on the motion on

December 8, 1999. After the hearing, the district court published an order in

which it held that Sutherland’s dual representation of Peach State and Ford during

the pendency of this action was undisputed. Nevertheless, citing Sutherland’s

prompt withdrawal from representation of Peach State and Reynolds as well as the

fact that no confidential information about Peach State was communicated to

Ford’s litigation counsel, the district court denied the motion to disqualify

Sutherland as defense counsel. As an alternative to disqualification, the court

asked Sutherland to erect a “Chinese Wall” to prevent any communication of

information regarding Peach State or Reynolds to those attorneys representing

Ford in this litigation.

I. Breach of Contract: Pricing System

7
 At the heart of the Dealers’ breach of contract claim is their allegation that

Ford violated its contractual obligations to its dealers when it instituted its new

pricing scheme. The Dealers contend that Ford had an obligation to sell its trucks

at prices previously published to all authorized truck dealers. Ford’s new pricing

system, specifically the individualized Appeal-Level CPA program, allegedly

violates this obligation. The Dealers also contend that faxing an individualized,

transaction-specific price to one dealer, as is normal procedure during an Appeal-

Level CPA negotiation, fails to meet Ford’s obligation to sell its product at only

pre-published prices.

When the language of a contract is clear and unambiguous, then the

contract is not open to construction or interpretation and must simply be enforced

as written. Equitable Life Assurance Soc’y of the United States v. Poe, 143 F.3d

1013, 1016 (6th Cir. 1998); Fragner v. American Community Mut. Ins. Co., 199

Mich. App. 537, 540 (1993).4 If the contract terms are inconsistent on their face,

or “are reasonably and fairly susceptible to multiple understandings and

meanings,” however, the contract is ambiguous. Poe, 143 F.3d at 1016;

Cincinnati Ins. Co. v. Federal Ins. Co., 166 F. Supp. 2d 1172, 1177 (E.D. Mich.

4
The Sales and Service Agreements between Ford and the Dealers contain a Michigan
choice-of-law provision. The district court found that this provision was enforceable and neither
party disputes this finding on appeal.

8
2001). The court must determine, as a matter of law, whether or not a contract is

ambiguous. Steinmetz Elec. Contractors Ass’n v. Local Union No. 58, 517 F.

Supp. 428, 432 (E.D. Mich. 1981). Moreover, contracts should not be interpreted

in a manner that renders any term or clause of that contract mere surplusage.

Fireman’s Fund Ins. Cos. v. Ex-Cell-O Corp., 702 F. Supp. 1317, 1325 (E.D.

Mich. 1988); Associated Truck Lines, Inc. v. Baer, 346 Mich. 106, 110 (1956)

(“Every word in the agreement must be taken to have been used for a purpose, and

no word should be rejected as mere surplusage if the court can discover any

reasonable purpose thereof which can be gathered from the whole instrument.”).

A simple disagreement between the parties as to the meaning of contractual terms,

however, does not render a contract ambiguous. Poe,143 F.3d at 1016.

Paragraph 10 governs prices and charges under the contract, and states that

Ford will sell its products to the dealer in price schedules or notices published in

accordance with the Heavy Duty Truck Terms of Sale Bulletin or Parts and

Accessories Terms of Sale Bulletin.5 The contract further provides that Ford has

the right to change its prices by issuing “a new HEAVY DUTY TRUCK or

PARTS AND ACCESSORIES TERMS OF SALE BULLETIN, new price

5
Again, the relevant terms in the truck and heavy duty truck contracts are identical. For
convenience, we will utilize the Heavy Duty Truck contract throughout this analysis.

9
schedules, or other notices.” Ford contends that its Appeal-Level CPA program

does not breach its contract with the Dealers because the contract language gives it

the power to establish transaction-specific prices with each individual dealer.

Ford seizes upon the singular “Dealer” in the contract language and contends that

it is only obliged to publish its prices to the Dealer; accordingly, Ford is not

obliged to sell its products only at prices previously distributed to all dealers.

Further, Ford argues that when it faxes its decision on Appeal-Level CPA to an

individual dealer, it is simply changing its price through issuance of a “notice” as

provided for in the contract.

Even accepting Ford’s posited interpretation as a reasonable interpretation

of paragraph 10, however, we cannot construe the contract to support only Ford’s

interpretation to the exclusion of other interpretations. The Sales and Service

Agreement requires prices to be set forth in schedules or notices in accordance

with either the Heavy Duty Truck or Parts and Accessories Terms of Sale

bulletins. Section 1(g) of the contract defines the Heavy Duty Truck Terms of

Sale Bulletin as “the latest HEAVY DUTY TRUCK TERMS OF SALE

BULLETIN and amendments thereto furnished to the Dealer from time to time by

the Company setting forth the terms of sale and ordering procedures applicable to

sales of HEAVY DUTY TRUCKS to Authorized Ford Heavy Duty Truck

10
dealers.” R12-2 (emphasis added). Similarly, section 1(h) also describes the Parts

and Accessories sales bulletin as a document setting forth terms of sale for all

authorized dealers. Id. Thus, while each individual dealer contract may only

impose obligations on Ford with respect to that dealer, the contractual language

suggests that one of Ford’s obligations to the individual dealer is to maintain and

distribute bulletins which contain sale information pertinent to all dealers. The

contract consistently couples the price schedules and notices with these dealer-

wide bulletins and provides that price schedules and notices are to be published in

accordance with these dealer-wide bulletins. Mindful of our obligation to consider

every word and term in the agreement, we believe a reasonable interpretation of

paragraph 10 would be to require Ford to publish its price schedules and other

notices in accord with the truck and parts bulletins: containing sale information

applicable to all dealers, and published to all dealers. Thus, we cannot conclude

that the language of Paragraph 10 admits of no interpretation other than Ford’s

suggestion that the contract only requires it to deliver to each individual dealer the

prices at which Ford will sell its products to that dealer. At the very least, the

language of the contract is ambiguous as to whether price schedules and “other

notices” published in accordance with dealer-wide bulletins could ever be in

nature dealer-specific.

11
 The additional language in the Heavy Duty Truck contract creates further

ambiguity. The Heavy Duty Truck contract, unlike the Truck contract, imposes an

additional obligation upon Ford to “make available to the Dealer price schedules

for HEAVY DUTY TRUCKS for distribution to Authorized Ford Truck dealers in

the DEALER’S LOCALITY, or the Company may directly distribute such price

schedules to such dealers.” This contractual language contemplates, at least with

regard to Ford’s heavy truck dealerships, that Ford would prepare and distribute

pricing schedules that were applicable to all dealers in a given locality, not just the

individual dealer named in the contract. From this provision, then, one reasonable

interpretation of the contract would seem to require Ford to sell its products at

prices applicable to all dealers in a given locality. Given that the preceding

portion of paragraph 10, common to both truck and heavy truck Sales and Service

Agreements, could be reasonably interpreted to require price schedules and notices

to be published at a minimum locality-wide, we cannot find that the contractual

language in the paragraph clearly and unambiguously allows of only one

interpretation, one that allows Ford to publish notices of prices that are specific to

that dealer and that dealer alone. Without such a finding, we cannot interpret

contractual language as a matter of law. In light of our finding, we must reverse

12
the district court’s award of summary judgment and remand this issue to that court

for a trial on the merits, including a determination of the contract meaning.6

II. Breach of Contract: Notice

In addition to the dispute over Paragraph 10 of the Sales and Service

Agreement, the parties dispute whether Ford also breached Paragraph 30 of the

Agreement, which requires Ford to send “[a]ny notice required or permitted by

this agreement, or given in connection herewith . . . in writing and . . . by personal

delivery or by first-class or certified or registered mail, postage prepaid.” R11-30.

It is the Dealers’ contention that in faxing its Appeal-Level CPA notices, Ford

violated its contractual obligation to send such notices either by personal delivery

or mail. The district court, however, concluded that even if Ford were in breach of

Paragraph 30, this breach was excused by the Dealers’ waiver of any objection to

this form of notice.

Under Michigan law, waiver of contractual rights can be shown “by proof of

express language of agreement or ineffably established by such declaration, act,

and conduct of the party against whom it is claimed as are inconsistent with a

purpose to exact strict performance.” H.J. Tucker & Associates, Inc. v. Allied

6
At trial, we anticipate Ford may well raise the issue of waiver, which to this point has
only been raised with regard to paragraph 30 of the Sales and Service Agreement, discussed
infra.

13
Chucker & Engineering Co., 234 Mich. App. 550, 564 (1999) (quoting Fitzgerald

v. Hubert Herman, Inc., 23 Mich. App. 716, 718-19 (1970)); see also Kvaerner

U.S., Inc. v. Hakim Plast Co., 74 F. Supp. 2d 709, 718 (E.D. Mich. 1999). The

record does not reveal any express manifestation of the Dealers’ agreement to

waive the notice requirement set forth in Paragraph 30. Nevertheless, an

agreement to waive the personal or mail delivery requirement can be inferred from

the Dealers’ conduct as inconsistent with an intent to demand strict performance.

It is undisputed that all Dealers participated in Appeal-Level CPA during the

period at issue, and it is further undisputed that Ford always faxed its Appeal-

Level CPA decisions to the requesting dealer. Thus, all Dealers would have

received their Appeal-Level CPA notice by fax, and at that time would have had

an opportunity to demand strict compliance with the requirements of Paragraph

30.7 The Dealers do not contend that they ever protested Ford’s decision to send

7
We recognize that the Dealers contend that this is an adhesion contract, wherein power
imbalances rendered the Dealers unable to protest Ford’s failure properly to deliver its notices to
its authorized dealers. We have not found, however, that Michigan law treats the doctrine of
waiver differently when contracts of adhesion are at issue. Further, given the facts before us, we
cannot see how these franchise dealership contracts could be considered contracts of adhesion. A
party seeking to set aside a contract as an adhesion contract must show that there were no real
alternatives to the contractual provisions, considering such factors as relative bargaining power,
economic strength, and any existing alternatives. General Motors Corp. v. Paramount Metal
Products Co., 90 F. Supp. 2d 861, 871 (E.D. Mich. 2000). The facts do not suggest, however,
that the Dealers lacked bargaining power or economic strength of their own. For example, there
is no evidence that the Dealers would not have been able to secure dealerships from competitor
truck manufacturers. Cf. Beauchamp v. Great West Life Assurance Co., 918 F. Supp. 1091, 1098
(E.D. Mich. 1996) (dismissing employee’s claim that contract was one of adhesion when

14
its Appeal-Level CPA notices by fax.8 Given that there is no dispute that the

Dealers never insisted that Ford specifically perform the terms of Paragraph 30,

we agree with the district court that the Dealers have waived any argument that

Ford breached that provision of the contract.

III. Disqualification of Counsel

The Dealers also contend that the district court erred in denying their

motion to disqualify Sutherland from representation of Ford due to a conflict of

interest. The Dealers contend that not only was there an actual conflict of interest,

but also an appearance of impropriety from Sutherland’s simultaneous

representation of defendant Ford, plaintiff Peach State Ford, and Peach’s owner,

Tom Reynolds, while this case was pending in the district court. The district court

found that Sutherland had represented multiple clients simultaneously, suggesting

disqualification might be proper under Disciplinary Rule 5-105 of the State Bar of

employee could have secured work with another employer and noting that “[u]nder plaintiff's
theory, practically every condition of employment would be an ‘adhesion contract’ which could
not be enforced because it would have been presented to the employee by the employer in a
situation of unequal bargaining power on a ‘take it or leave it’ basis.”). Moreover, the Dealers
had all incorporated their business under the laws of variously Delaware, Georgia, and Florida,
which suggests some degree of business sophistication. Further buttressing this conclusion are
the Dealers’ descriptions of themselves as very successful commercial enterprises with
nationwide markets and customer bases. R1-2, 1-3.
8
Again, the Dealers contend that they were controlled by the unequal bargaining position
in the dealership relationship, and that the reason that they failed to demand Ford’s specific
performance of the contractual terms creates an issue of fact. As we have already discussed,
however, we do not see how the facts support an inference that this was an adhesion contract.

15
Georgia,9 but determined that Sutherland’s prompt withdrawal from representation

of Peach State and Reynolds, whom it had represented in unrelated matters,

rendered disqualification improper. We review the district court’s findings of fact

for clear error and carefully examine de novo the district court’s application of

ethical standards. Schlumberger Technologies, Inc. v. Wiley, 113 F.3d 1553, 1558

(11th Cir. 1997); Norton v. Tallahassee Memorial Hosp., 700 F.2d 617, 620 (11th

Cir. 1983).

The Local Rules of the United States District Court for the Northern District

of Georgia require attorneys appearing before it to comply with the court’s

specific rules of practice, the Code of Professional Responsibility and Standards of

Conduct contained in the State Bar of Georgia’s Rules and Regulations, and

judicial decisions interpreting these rules and standards. L.R. 83.1(C), N.D. Ga.

Directory Rule 5-105(C) of the State Bar of Georgia provides that a lawyer may

only represent multiple clients “if it is obvious that he can adequately represent the

interest of each and if each consents to the representation after full disclosure of

the possible effect of such representation on the exercise of his independent

9
DR 5-105 is entitled “Refusing to Accept or Continue Employment if the Interests of
Another Client May Impair the Independent Professional Judgment of the Lawyer.” This section
was in effect at all relevant times in the instant claim, although Georgia has subsequently adopted
new Rules of Professional Conduct.

16
professional judgment on behalf of each.” Further, if a lawyer is required to

decline representation under this provision, no partner or associate of that lawyer’s

firm can represent that client. DR 5-105(D). After the July 1, 1999 filing of the

complaint, Sutherland was notified by Peach State and Reynolds of the existence

of the conflict by letter dated October 13, 1999. It is undisputed that Peach State

and Reynolds did not consent to multiple representation. Accordingly, the district

court’s findings of fact were not clearly erroneous, and it did not incorrectly apply

the state ethics code in determining that DR 5-105's plain terms suggested that

Sutherland be prohibited from representing Ford.

While the district court found Sutherland in violation of DR 5-105, the court

found that it was bound by our holding in Tipton v. Canadian Imperial Bank of

Commerce, 872 F.2d 1491 (11th Cir. 1989), interpreting the propriety of

disqualifying a law firm under DR 5-105(D). In Tipton, the plaintiff in an

employment discrimination suit discovered that the defendant, her former

employer, was being represented by the same law firm that represented the

plaintiff in an unrelated property dispute. Id. at 1498. Upon discovery of the

conflict, the law firm withdrew its representation of plaintiff Tipton in the property

dispute but continued to serve as defense counsel in the employment

discrimination claim. Id. The plaintiff alleged that the defendant’s law firm must

17
be disqualified under DR 5-105(D) because the law firm had gained knowledge of

the plaintiff’s affairs through the attorney-client relationship. Id. at 1499. We

determined, however, that the district court had properly denied the Tipton

plaintiff’s motion for disqualification, citing affidavit testimony provided by the

property attorney that no material details of the representation were discussed with

the employer’s defense lawyers, and additional testimony that no confidential

information about the plaintiff was ever shared with the attorneys representing the

employer in the discrimination dispute. Id.

As in Tipton, Mr. Ganz, who represented Peach State and Reynolds in

corporate and estate matters, testified that he did not share information about his

clients with those attorneys who handled Ford’s defense, and certainly not

confidential information.10 Thus, after carefully reviewing the district court’s

10
The Dealers argue that Sutherland’s continued representation of Ford also created the
appearance of impropriety, a situation which justified disqualification. While it is true that proof
of actual impropriety is not demanded before disqualifying counsel under this theory, “there must
be at least a reasonable possibility that some specifically identifiable impropriety did in fact
occur.” Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir. 1976) (discussing
appearance of impropriety as set forth in Canon 9 of the Code of Professional Responsibility);
see also Waters v. Kemp, 845 F.2d 260, 266 n.13 (11th Cir. 1988) (noting the Code’s
replacement by the Model Rules of Professional Conduct but reiterating the Woods test for
finding appearance of impropriety). The Dealers have not alleged a reasonable probability that
any identifiable impropriety may have occurred; on the contrary, the Dealers state that “[w]e will
never know whether or how Ford benefitted and Peach State suffered as a result of Sutherland,
Asbill continuing as Ford’s counsel against its client Peach State.” Appellants’ Brief, at 14.
Further, while the Dealers argue that Sutherland was in possession of information about Peach
State’s ownership, operation of dealership, tax matters, and the Reynolds’ estate planning
matters, the Dealers only posit that this information was worthwhile as impinging on matters of

18
application of law to the facts of this case, we cannot say that the district court

clearly erred in its findings of fact or improperly applied ethical standards in

denying the motion for disqualification.

For the reasons stated above, we find that the district court improperly

granted summary judgment to Ford on the breach of contract claim and remand to

the district court for further proceedings in conformity with our opinion. We

nevertheless affirm the district court’s findings that the Dealers have waived any

argument that Ford breached paragraph 30 of the franchise contract and its order

denying the motion to disqualify Sutherland as defense counsel.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

credibility. The dealers do not appear to allege that any information in Mr. Ganz’ possession
would have given Sutherland insight into the breach of contract claim. Further, corporate and
estate matters are not the same subject matter as breach of contract. Cf. Crawford W. Long
Memorial Hosp. of Emory University v. Yerby, 258 Ga. 720 (1988) (finding motion to dismiss for
appearance of impartiality should have been granted where attorney sought to bring tort claim
against very hospital he had previously defended against the same claim, and representation grew
out of an event which occurred during time of representation of former client).

19