Ewing Holding Corp. v. Egan-Stanley Investments, Inc.

• Decision Date: 02 May 1980
• Docket Number: Nos. 59444,59445,EGAN-STANLEY,s. 59444
• Citation: 154 Ga.App. 493,268 S.E.2d 733
• Parties: EWING HOLDING CORPORATION v.INVESTMENTS, INC. et al.INVESTMENTS, INC. v. ACKERMAN & COMPANY et al.
• Court: Georgia Court of Appeals

Page 733

268 S.E.2d 733

154 Ga.App. 493

EWING HOLDING CORPORATION v. EGAN-STANLEY INVESTMENTS, INC. et al.

EGAN-STANLEY INVESTMENTS, INC. v. ACKERMAN & COMPANY et al.

Nos. 59444, 59445.

Court of Appeals of Georgia.

Argued Feb. 7, 1980.

Decided April 16, 1980.

Rehearings Denied May 2, 1980.

Hugh F. Newberry, Scott A. Ray, Atlanta, for appellant (no. 59444).

Earnest H. DeLong, Jr., Paul T. Carroll, III, C. David Butler, Atlanta, for appellees (no. 59444).

Paul T. Carroll, III, Atlanta, for appellant (no. 59445).

Earnest H. DeLong, Jr., Scott A. Ray, Atlanta, for appellees (no. 59445).

BIRDSONG, Judge.

Motion to dismiss Timeliness of appeal. This unusual and convoluted procedural quagmire, involves the following procedural developments. Plaintiff below, the Ewing Holding Corp., entered into a contract to sell an apartment complex to defendant below, Egan-Stanley Investments. Ackerman & Co. was the real estate broker handling the sale. Egan paid Ackerman $25,000 earnest money. Later Egan gave Ackerman a second $25,000 but Egan stopped payment on that check. Ewing in its contract of sale vouched that the apartment complex was zoned A-1, Apartment. In fact, part of the complex was zoned C-1, Commercial. Egan insisted on an A-1 zoning for the entire complex and offered to close on the established date if the proper zoning could be obtained. Closing was set for July 6, 1979, but proper zoning was not obtained until July 16. At closing on July 6, the president for Ewing (seller) appeared but no one from Egan (buyer) was present. As a result, the sale was not consummated. Ewing then brought suit against Egan and Ackerman seeking $50,000 liquidated damages, $25,000 to come from the broker Ackerman, $25,000 from Egan plus costs of litigation.

The sole stockholder and owner of Ewing Holding Corp. is Scot A. Ray. Ewing Holding Corp. is represented in this litigation by the name Scot A. Ray, as a part of the firm of Newberry & Ray. Egan moved the trial court to disqualify the firm of Newberry & Ray because Ray was the principal witness representing the plaintiff corporation, Ewing. Relying on Directory Rule 5-102 of the Georgia Code of Professional Responsibility, the trial court disqualified the firm of Newberry & Ray from representing Ewing and directed that they remove themselves in 30 days or the clerk, by court order would strike the firm from its representative capacity. The order of the court was dated October 19, 1979. On November 15, 1979, Ewing obtained an order from the trial court pursuant to Code Ann. § 81A-154(b) stating that no just reason existed for delaying the finality of the order entered on October 19, 1979. Also on November 15, Ewing filed its notice of appeal to the dismissal of its firm of attorneys.

Ackerman had moved the trial court to cause both Ewing and Egan to interplead Ackerman because Ackerman was nothing more than a stakeholder. Ackerman admitted that it had $25,000 that was due to either Ewing or Egan, but could not pay either without jeopardizing itself. It was willing to pay the $25,000 into court or hold the $25,000 subject to order of the court. Ackerman moved that because it was nothing more than a stakeholder that the trial court enter an appropriate order as to disposition of the $25,000 and dismiss the action against Ackerman with prejudice. On October 19, 1979, the trial court granted Ackerman's motion and dismissed the complaint against Ackerman with prejudice.

Egan in its answer to Ewing's complaint had filed a cross complaint against Ackerman seeking the return of the $25,000 it had delivered to Ackerman as earnest money and $25,000 more to offset any recovery that Ewing might possibly recover in its $50,000 suit against Egan. The effect of the trial court's dismissal of Ackerman on October 19, was to dismiss Egan's cross complaint against Ackerman, because the trial court held that Ackerman was the holder of $25,000 only. Following Ewing's appeal filed on November 15, Egan filed a cross appeal on November 23, 1979, complaining of Ackerman's dismissal with prejudice. Ackerman has moved to dismiss Ewing's appeal which complains of the dismissal of its attorney, the firm of Newberry & Ray (Case No. 59444). Egan has cross appealed the dismissal of Ackerman as a party defendant with prejudice (Case No. 59445). Egan in its brief has supported the motion for dismissal of Ewing's appeal filed by Ackerman but disputes the dismissal of its own cross appeal insofar as the cross appeal relates to the dismissal of Ackerman as a party defendant (cross defendant). Held :

1. The linchpin of this controversy centers on whether the appeal filed by Ewing is an appeal from a final judgment or an interlocutory appeal. Ewing argues that the order of the court of October 19 is final because it removes the firm of Newberry & Ray from the case and requires an action by that firm, namely to disqualify themselves. Relying on the cases of Sapp v. ABC Credit &c. Co., 243 Ga. 151, 153, 253 S.E.2d 82 and Darden v. Ravan, 232 Ga. 756, 758, 208 S.E.2d 846, Ewing argues that the dismissal of its chosen attorney for reason of disqualification constitutes a final judgment and is appealable in view of the order of November 15, ordering that no just reason existed for delaying the finality of the order of October 19. We note that the Darden case supra, bases its conclusion of appealability upon the fact that the order of the Cobb County Superior Court in that case was void, and a void judgment is appealable. There is no contention in this case that the order of disqualification is void as opposed to an asserted abuse of discretion. Moreover, as an additional, significant difference from the Darden case, supra, we observe that Ewing as a party has filed the appeal in its interest rather than the appeal being filed by the firm of Newberry & Ray in its personal capacity. The Sapp case, supra, was concerned with the appealability of...