Zelda Enterprises, Lllp v. Tracy McCall Guarino

FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J., and SELF, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 4, 2017

In the Court of Appeals of Georgia
A16A1437. ZELDA ENTERPRISES, LLLP et al. v. GUARINO et
al.

DILLARD, Chief Judge.

Zelda Enterprises, LLLP, Tony Lamar McCall, and Gene Arlon McCall, Sr.

(“appellants”) appeal from the trial court’s grant of a motion to disqualify counsel,

which was filed by Tracy McCall Guarino, Angie McCall Sumpter, and Charles

Wesley McCall, Jr. (“appellees”) in the underlying action between the parties. The

appellants argue that the trial court committed reversible error in granting the motion

by (1) applying Rule 1.6 and Rule 1.7 (c) (2) of the Rules of Professional Conduct to

find that there was a conflict of interest between the appellants’ counsel and the

appellees; (2) failing to assess whether the appellees waived the opportunity to move
for disqualification of counsel; (3) failing to consider the harm that the appellants

would suffer by the disqualification of counsel; and (4) adopting the facts as

presented by the appellees’ proposed order, and admitting evidence that was

presented in the context of a proposed settlement. Because the trial court failed to first

assess whether the appellees waived the opportunity to move for disqualification of

counsel before granting the motion, we vacate the trial court’s order and remand for

further proceedings consistent with this opinion.

This Court attempted to transfer this case to the Supreme Court of Georgia

consistent with what was, at the time, that court’s jurisdiction over cases in equity.1

But our Supreme Court determined that jurisdiction was more properly in this Court

1
See GA. CONST. Art. VI, § VI, ¶ III (providing that, unless otherwise provided
by law, the Supreme Court of Georgia has appellate jurisdiction over “[a]ll equity
cases”); Jackson v. J. C. Penney Co., 521 FSupp. 1032, 1034 (N.D. Ga. 1981)
(explaining that the disqualification of counsel is “an equitable, not a legal, matter”).
But see OCGA § 15-3-3.1 (a) (2) (providing for appellate jurisdiction in the Georgia
Court of Appeals over “[a]ll equity cases, except those cases concerning proceedings
in which a sentence of death was imposed or could be imposed and those cases
concerning the execution of a sentence of death”); 2016 Ga. Laws, Act 626, § 6–1
(providing that OCGA § 15-3-3.1 would become effective January 1, 2017).

2
and returned the case.2 And on the question of jurisdiction, at the outset, we reject the

appellees’ assertion that we lack jurisdiction to consider this appeal because the

appellants obtained a certificate of immediate review ex parte when the appellees did

not receive a copy of the proposed certificate until after receiving the signed

certificate. The appellees provide no citation to authority in support of their

contention that this occurrence deprives us of jurisdiction.3 Furthermore, the appellees

2
See Order in Case No. S17A0748 (Ga. Jan. 17, 2017) (finding that our
Supreme Court did not have exclusive jurisdiction over appeal because it had “never
held that appeals from motions to disqualify opposing counsel invoke its appellate
jurisdiction over equity cases” and because “appeals challenging the trial court’s
application of the doctrines of laches do not invoke its jurisdiction”).
3
See Court of Appeals Rule 25 (b) (2) (“Part Two [of appellee’s brief] shall
contain appellee’s argument and the citation of authorities as to each enumeration of
error. It shall also include the standard of review if different from that contended by
the appellant.”); Court of Appeals Rule 25 (c) (2) (“Any enumeration of error that is
not supported in the brief by citation of authority or argument may be deemed
abandoned.”).

3
did not file a separate motion to dismiss.4 Given these particular deficiencies, we

decline to dismiss this appeal for any alleged lack of jurisdiction.

Turning to the issues on appeal, in July 2012, some of the appellees met with

Richard Calhoun of Gregory, Doyle, Calhoun & Rogers (“GDCR”), formerly Brock,

Clay, Calhoun & Rogers, to discuss responding to a demand letter that they had

received from the appellants’ now-former counsel, Sams, Larkins & Huff. The letter

concerned distribution of property and corporate assets between numerous family

members following a death. And in order to assist Calhoun, the appellees provided

a detailed memorandum that assessed the requests and allegations of the demand

letter and provided insight into their positions, paragraph by paragraph. Calhoun then

4
See Court of Appeals Rule 41 (b) (“All motions and responses to motions
shall be filed as separate documents, and not as joint, compound, or alternative
motions. No motions or responses to motions shall be filed in the body of briefs,
applications, or responses to applications. Motions and responses shall be prepared
in accordance with Rule 24, Preparation of Briefs. Parties may cite to the record, but
shall not attach any document to the motion or response. This prohibition does not
apply to Rule 40 (b) motions that may contain attachments. Failure to comply with
this rule may result in non-consideration of the motion or responses.”); Court of
Appeals Rule 41 (d) (“Notice of a motion to dismiss and the grounds thereof shall be
given in writing to counsel for the appellant by service made and shown as required
in Rule 6, Copies and Certificate of Service. If notice cannot be given, the motion
shall be entertained and the Court in its discretion shall give direction as it deems
proper. If the Court determines that it has no jurisdiction over a pending appeal, the
appeal shall be dismissed or transferred to the Supreme Court.”).

4
forwarded these items to his associate, Michael Goode, on August 2, 2012.

Thereafter, according to emails exchanged between Goode and Calhoun, dated

August 6 and August 7, 2012, Goode began looking into the matters raised by the

demand letter.5 Additionally, Calhoun contacted the appellants’ former counsel to

request an extension of time in which to respond to the letter, informed the appellees

of same on August 7, and notified them that Goode would call them to gather more

information to formulate a response to the letter.

On August 9, 2012, the appellees informed Calhoun via email that they had

decided not to retain GDCR to represent them in the matter, and they subsequently

retained Tim Bailey as counsel. At some point after the appellees informed

Calhoun/GDCR that they would not be retaining the firm, Melissa Gilbert, another

attorney at GDCR, began representing the appellants in the underlying action. And

on February 28, 2013, Michael Goode sent a letter to Bailey to inform him of the

firm’s representation of the appellants and make certain demands. This letter

addressed issues with some of the same property and corporate assets that were the

5
An email from family members to Calhoun on August 4 referenced a
telephone call with Calhoun and “the other attorney” that had taken place the day
before, August 3, “to discuss the [demand] letter.” The email requested that Calhoun
call again and that he provide “notice of the time of day that [he] or Michael” would
do so.

5
subject of the earlier demand letter from Sams, Larkins & Huff, and which issues

form the substance of a dispute in the underlying litigation now between the parties.

Thereafter, written communication about these matters was ongoing between Bailey

and Goode. But ultimately, in September 2014, Bailey filed a petition on behalf of the

appellees, seeking equitable relief and damages.

In September 2015, the appellees discontinued their representation by Bailey

and retained their current counsel, Moore, Ingram, Johnson & Steele (“MIJS”). MIJS

claims that the firm became aware of the appellees’ prior consultation with GDCR

when reference was made to such consultation in a proposed-settlement letter from

the appellants, seeking a waiver of any alleged conflict. Thus, MIJS requested and

received a copy of the file that GDCR opened upon consulting with the appellees in

2012, and MIJS then moved to disqualify GDCR from representing the appellants.

GDCR asserted in response that no objectionable conflict existed regarding the 2012

consultation with the appellees and that MIJS was moving for disqualification at the

last minute as a means of tactical delay.

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 After hearing oral argument on the motion for disqualification, the trial court

granted it. The appellants then sought and were granted a certificate of immediate

review, and this Court granted their application for interlocutory appeal, which

follows.

The appellants make numerous arguments as to why the trial court erred in

granting the motion to disqualify counsel, as discussed supra, but because we agree

that the trial court should have assessed the issue of whether there was a waiver of the

opportunity to move for disqualification before granting the motion, we vacate the

trial court’s order and remand for further proceedings consistent with this opinion.

First, we recognize that the 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.”6 Indeed, disqualification has “an immediate adverse effect on the

client by separating him from counsel of his choice,” which inevitably causes delay.7

Furthermore, when an attorney is disqualified, the client “may suffer the loss of time

6
Bernocchi v. Forcucci, 279 Ga. 460, 462 (2) (614 SE2d 775) (2005)
(punctuation omitted); accord Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d
607) (1981).
7
Bernocchi, 279 Ga. at 462 (2) (punctuation omitted); accord Wellstar Health
Sys., Inc. v. Kemp, 324 Ga. App. 629, 634 (1) (b) (751 SE2d 445) (2013); Clough v.
Richelo, 274 Ga. App. 129, 132 (1) (616 SE2d 888) (2005).

7
and money in finding new counsel and may lose the benefit of its longtime counsel’s

specialized knowledge of its operations.”8 Thus, because of “the right involved and

the hardships brought about, disqualification of chosen counsel should be seen as an

extraordinary remedy and should be granted sparingly.”9 We review a court’s decision

on a motion to disqualify counsel for an abuse of discretion.10

Because of the importance of the right to counsel and the hardships that ensue

in the event of disqualification, we have previously held that motions to disqualify

should be “made with reasonable promptness after a party discovers the facts which

lead to the motion.”11 The failure to make a “reasonably prompt” motion to disqualify

counsel can result in waiver.12 In considering if a waiver to file a motion to disqualify

8
Bernocchi, 279 Ga. at 462 (2) (punctuation omitted).
9
Id.
10
E.g., WellStar Health Sys., 324 Ga. App. at 634 (1) (b); Clough, 274 Ga.
App. at 132 (1).
11
Ga. Baptist Health Care Sys., Inc. v. Hanafi, 253 Ga. App. 540, 541 (559
SE2d 746) (2002) (punctuation omitted) (quoting Jackson, 521 FSupp at 1034));
accord Befekadu v. Addis. Intern. Money Transfer, LLC, 332 Ga. App. 103, 105-06
(1) (b) (772 SE2d 785) (2015); Resigno v. Vesali, 306 Ga. App. 610, 613 (1) (703
SE2d 65) (2010); Yates v. Dublin Sir Shop, Inc., 260 Ga. App. 369, 372 (2) (579
SE2d 796) (2003).
12
Befekadu, 332 Ga. App. at 105-06 (1); Resigno, 306 Ga. App. at 613 (1);
Yates, 260 Ga. App. at 372 (2); Hanafi, 253 Ga. App. at 541; see Conley v. Arnold,

8
has occurred, the trial court must consider four factors: (1) the length of the delay in

light of the circumstances of the case, including when the movant learned of the

conflict; (2) whether the movant had counsel during the delay; (3) the cause of the

delay; and (4) whether disqualification would cause prejudice to the nonmoving

party.13 Additionally, the court must “weigh these factors against the seriousness of

the conflict alleged and the extent to which the public’s confidence in the

administration of justice would be eroded if the motion was denied.”14

93 Ga. 823, 824 (1894) (refusing to set aside verdict, notwithstanding attorney’s
improper involvement with case due to conflict of interest, when party moved for
disqualification only after return of the jury’s verdict); Allen v. State, 150 Ga. App.
109, 110 (2) (257 SE2d 5) (1979) (holding that objection to appointment of special
prosecutor was made too late when made for the first time in amendment to motion
for new trial); see also Lane v. State, 238 Ga. 407, 409 (4) (233 SE2d 375) (1977)
(“The rule of disqualification of counsel who had prosecuted two defendants as
solicitor general to represent them in a civil action growing out of the same incident
was stated in Conley v. Arnold . . . . In that case no objection was made at the trial and
it was held that the objection after verdict was too late.” (citation omitted)).
13
Resigno, 306 Ga. App. at 613 (1); Head v. CSX Transp., Inc., 259 Ga. App.
396, 398 (577 SE2d 12) (2003); Hanafi, 253 Ga. App. at 541.
14
Hanafi, 253 Ga. App. at 542 (citing In re Corrugated Container Antitrust
Litigation v. Alton Box Bd. Co., 659 F2d 1341, 1348-49 (5th Cir.1981)); accord
Head, 259 Ga. App. at 398.

9
 Here, before concluding that the appellants’ counsel should be disqualified, the

trial court did not first consider whether the appellees waived the opportunity to move

for disqualification, despite the appellants arguing below that the appellees had

indeed waived the opportunity to move for disqualification by failing to do so in a

reasonably prompt amount of time.15 And without findings of fact and conclusions of

15
Although the trial court concluded that the conflict was “not waivable,” it did
so applying the Rules of Professional Conduct (i.e., the trial court concluded that
appellees could not have consented to waiver of a conflict of interest under Rule 1.7
(c)). See Rules of Professional Conduct R. 1.7 (c) (“Client informed consent [waiving
a conflict of interest] is not permissible if the representation: (1) is prohibited by law
or these Rules; (2) includes the assertion of a claim by one client against another
client represented by the lawyer in the same or substantially related proceeding; or (3)
involves circumstances rendering it reasonably unlikely that the lawyer will be able
to provide adequate representation to one or more of the affected clients.”). But the
trial court did not consider our cases concerning waiver of the opportunity to move
for disqualification. See supra note 11 & accompanying text. Indeed, although our
cases speak in terms of waiving the conflict of interest, it is clear that what we mean
is the waiver of the right to move for disqualification due to the alleged conflict of
interest. See generally Jackson, 521 FSupp at 1033 (“Before reaching the merits of
the defendant’s motion [for disqualification of counsel], however, the court must first
determine whether the defendant has essentially waived its right to obtain
disqualification because of its failure to raise the issue while the case was pending in
the state court of Tennessee. A motion to disqualify should be made with reasonable
promptness after a party discovers the facts which lead to the motion.”), relied upon
by Hanafi, 253 Ga. App. at 541; Jaskula v. Dybka, No. 1–16–0014, 2017 WL
1103415, at * (Ill. App. Ct. Mar. 23, 2017) (“[C]ourts have determined that a party
waives any objection to an alleged attorney conflict by failing to promptly assert the
issue.” (emphasis supplied)).

10
law on this potentially dispositive question,16 we cannot determine whether the trial

court abused its discretion in granting the motion to disqualify.17 Accordingly, we

vacate the order of disqualification and remand to the trial court for it to conduct the

waiver analysis discussed supra.18

Judgment vacated and case remanded with direction. Ray, P. J., and Self, J.,

concur.

16
Cf. Wakefield v. Stevens, 249 Ga. 254, 255 (290 SE2d 58) (1982) (explaining
that the timeliness of motion to recuse judge was dispositive issue in case).
17
See Shuttleworth v. Rankin-Shuttleworth of Ga., LLC, 328 Ga. App. 593, 596
(1) (b) (759 SE2d 873) (2013) (physical precedent only as to Div. 1 (b)) (holding,
after assessing the four factors relevant to waiver of opportunity to move for
disqualification and acknowledging that “the trial court must weigh these factors,”
that trial court did not abuse its discretion in granting motion to disqualify (emphasis
added)).
18
See Befekadu, 332 Ga. App. at 105-06 (1) (b) (vacating order of
disqualification and remanding for consideration under the appropriate standard,
including whether the failure to raise the issue with reasonable promptness resulted
in waiver). We express no opinion as to the appropriateness of the trial court’s ruling
on the substantive issue of disqualification.

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