Cherry v. Coast House, Ltd.

• Decision Date: 09 September 1987
• Docket Number: Nos. 44586,s. 44586
• Citation: 359 S.E.2d 904,257 Ga. 403
• Parties: CHERRY v. COAST HOUSE, LTD. (Two Cases). ROLLESTON v. COAST HOUSE, LTD. (Three Cases). COAST HOUSE, LTD. v. CHERRY (Two Cases). to 44588, 44621 to 44624.
• Court: Georgia Supreme Court

Page 904

359 S.E.2d 904

257 Ga. 403

CHERRY v. COAST HOUSE, LTD. (Two Cases).

ROLLESTON v. COAST HOUSE, LTD. (Three Cases).

COAST HOUSE, LTD. v. CHERRY (Two Cases).

Nos. 44586 to 44588, 44621 to 44624.

Supreme Court of Georgia.

Sept. 9, 1987.

Reconsideration Denied Oct. 7, 1987.

Rebecca W. Cherry, pro se.

Moreton Rolleston, Jr., pro se.

Austin E. Catts, Atlanta, Albert Remler, Remler & Henderson, Savannah, for Coast House, Ltd., et al.

Rush S. Smith, Jr., John E. Hall, Jr., Hart & Sullivan, P.C., Atlanta, for Moreton Rolleston, Jr.

CLARKE, Presiding Justice.

Appellant Rolleston appeals from two orders of the trial court disqualifying him from representing Mrs. Cherry and representing himself. The orders appealed from were filed December 2 and December 16, 1986. The second order was entered pursuant to a motion of appellees for clarification.

1. Rolleston complains that both orders are a nullity because he was not permitted to orally argue appellees' motions pursuant to Uniform Superior Court Rule 6.3. Prior to its 1987 amendment, Uniform Superior Court Rule 6.3 provided that all motions in civil actions except motions for new trial and for judgment notwithstanding the verdict would be decided without oral argument. However, the rule provided that argument would be permitted upon written request. Rolleston also insists that he was entitled under Uniform Superior Court Rule 6.2 to thirty days to answer the motion for clarification which resulted in the order of December 16.

The motion for clarification which resulted in the order of December 16, 1987, was filed after Rolleston had sought and obtained from another judge in Fulton County Superior Court an ex parte temporary restraining order prohibiting appellees from communicating with Mrs. Cherry. Appellees contend that this order was obtained without any notice to appellees' attorneys. This restraining order was vacated as "inadvertently" entered after this judge learned of the December 2 order disqualifying Mr. Rolleston from representing Mrs. Cherry.

In regard to the request for oral argument on the motion to disqualify which resulted in the December 2 order, Rolleston requested oral argument as follows: "In accordance with Rule 6.3 of the Uniform Superior Court Rules, oral argument is requested unless the Court decides to deny the motions of Coast House and Sandease." To meet the mandate of the previous Rule 6.3 a request for oral argument must have been unconditional. Such was not the case here. There is no request for argument in the record in regard to the motion for clarification which resulted in the order of December 16. Similarly, a response to a motion for clarification would not assist the court.

2. On December 4, 1986, Rolleston and Mrs. Cherry each signed pro se a notice of appeal from the order of December 2. Rolleston contends that this notice of appeal acted as a supersedeas as to the disqualification of Rolleston to represent Mrs. Cherry. He insists that this supersedeas is an additional reason why the order of December 16 was a nullity. OCGA 5-6-46 provides that a notice of appeal serves as a supersedeas in civil cases upon payment of all costs in the trial court by the appellant. Because of the effect of the supersedeas the trial court loses all jurisdiction as to matters contained within the appeal. Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982). However, 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. In that event, the trial court is not deprived of jurisdiction to proceed with the case. Carter v. Data General Corp., 162 Ga.App. 379, 291 S.E.2d 99 (1982). Because the order disqualifying Mrs. Cherry's attorney was an interlocutory order, the trial court did not lose jurisdiction with the filing of the notice of appeal. Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga.App. 493, 268 S.E.2d 733 (1980). Therefore, the trial court had jurisdiction to enter the order of December 16.

The order of December 2 was an interlocutory order, as was the order of December 16, at least insofar as that later order related to the representation of Mrs. Cherry. The notices of appeal relating to these orders were filed prior to the orders in any of the related cases. Ordinarily, an application for interlocutory appeal would be required. However, construing these orders in light of our holding in Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 295, 271 S.E.2d 199 (1980) that "... when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court[,]" we find that judicial economy will be served by consideration of the appeals from these orders in conjunction with appeals from other rulings in the case before us.

3. Having determined that the orders in question are properly before us, we proceed to address the substantive issues raised. The first issue is whether the trial court erred in disqualifying Rolleston from the representation of Mrs. Cherry. As we held in Blumenfeld v. Borenstein, 247 Ga. 406, 408, 276 S.E.2d 607 (1981), "[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 this case Rolleston is not only the attorney for Mrs. Cherry but is a party due to various claims of tortious interference with appellees' contract with Mrs. Cherry and due to claims which have been raised under Yost v. Torok. Serious possibilities for conflict of interest are present when the attorney is also a party in the case. Canon 5, EC 5-1, and DR 5-101, Code of Professional Responsibility of the State Bar of Georgia (hereinafter State Bar Rules), all bear on the problem of the lawyer whose personal interests pose a potential conflict with the interests of the client. The virtual certainty that Rolleston will be called upon to testify not only as a witness for himself because of his position as a party but also as a witness on behalf of Mrs. Cherry because he was present without his client at the closing which is...