Gene Thompson Lumber Co., Inc. v. Davis Parmer Lumber Co., Inc., 77304

• Decision Date: 22 November 1988
• Docket Number: No. 77304,77304
• Citation: 377 S.E.2d 15,189 Ga.App. 573
• Parties: GENE THOMPSON LUMBER COMPANY, INC. v. DAVIS PARMER LUMBER COMPANY, INC. et al.
• Court: Georgia Court of Appeals

Page 15

377 S.E.2d 15

189 Ga.App. 573

GENE THOMPSON LUMBER COMPANY, INC. v. DAVIS PARMER LUMBER COMPANY, INC. et al.

No. 77304.

Court of Appeals of Georgia.

Nov. 22, 1988.

Rehearing Denied Dec. 8, 1988.

Certiorari Denied Jan. 19, 1989.

T. Lee Bishop, Jr., Albany, for appellant.

Harry L. Wingate, Jr., Albany, for appellees.

BIRDSONG, Chief Judge.

This is an appeal of the amended judgment awarding both plaintiffs/appellees the total sum of $5,965.84 with interest as provided by law. The trial court directed a verdict in favor of both plaintiffs/appellees in the amount of $5,233.64, and the jury awarded an additional $732.20.

Appellant, Gene Thompson Lumber Company, purchased three loads of lumber from the appellee, Davis Parmer Lumber Company. Mr. Gene Thompson, principal stockholder of Gene Thompson Lumber Company, admitted in judicio that the appellant had ordered and received the lumber listed in the three invoices of appellee Davis Parmer Lumber Company, and that appellant had not paid for this lumber. However, appellant asserted that the lumber had been graded after receipt and was found "to be defective," that is, it was not of the grade specified in the purchase orders. The difference in the value of the lumber ordered and that actually received was $732.20. Appellant notified appellee Davis Parmer Lumber Company of its claim, but the claim was not honored.

On September 28, 1987, Davis Parmer Lumber Company notified its insurance company of the nonpayment of account by appellant, and filed a "Notification of Claim" placing the account of the appellant in the hands of the insurance company for collection. On October 1, 1987, appellee Davis Parmer Lumber Company brought suit against appellant for the amount due and owing on the three lumber purchases. On January 29, 1988, appellee Davis Parmer Lumber Company assigned its claim of $5,965.84 against appellant to appellee the Continental Insurance Company. The Continental Insurance Company paid Davis Parmer Lumber Company the amount of $3,600.00 but apparently declined to pay the balance of the claim. In April, 1988, The Continental Insurance Company was joined as an indispensable party plaintiff to this suit and the original complaint was amended to reflect this joinder. The Continental Insurance Company apparently had previously authorized another Georgia attorney to initiate suit against appellant, and a second Davis Parmer Lumber Company lawsuit was filed on January 13, 1988. However, this action was dismissed when the existence of the suit at bar became known. Ultimately, the Continental Insurance Company authorized counsel for appellee Davis Parmer Lumber Company to represent it also in the current litigation.

At the conclusion of plaintiffs' case in chief, appellant moved for a directed verdict against both plaintiffs. These motions were denied. After both sides had rested, appellant again moved for a directed verdict as to appellee Davis Parmer Lumber Company, and the appellees moved for a directed verdict in favor of the plaintiffs. The trial court granted a directed verdict in favor of both plaintiffs "for the principal amount sued less ... $732.20." The jury returned a verdict in favor of both plaintiffs not only for the amount mandated by the directed verdict but for the amount of $732.20 as well. Held:

1. Appellant's first and second enumerated errors are that the trial court erred in refusing to disqualify Harry Wingate as counsel for both Davis Parmer Lumber Company and the Continental Insurance Company, and that the trial court erred in denying its motion to disqualify Mr. Wingate as the attorney for the Continental Insurance Company. The ultimate determination of whether an attorney should be disqualified from representing a client in a judicial proceeding rests in the sound discretion of the trial judge. See Rivers v. Goodson, 184 Ga.App. 70(1), 360 S.E.2d 740; Young v. Champion, 142 Ga.App. 687, 690-691, 236 S.E.2d 783; see also, Directory Rule 2-110. Our review of the record reveals no abuse of discretion in refusing to disqualify Mr. Wingate. Moreover, in the absence of contrary evidence, it will be presumed that members of our State Bar have properly complied with the Bar's ethical directory and disciplinary rules.

2. Appellant contends the trial court erred in overruling an objection to the questioning of appellant's principal stockholder regarding appellant's sale of the lumber received from Davis Parmer Lumber Company. Appellant's objection in effect was based on lack of relevancy. Admissibility of evidence rests in the trial court's sound discretion. Lewis v. State, 158 Ga.App. 586(1), 281 S.E.2d 331. Moreover, "evidence of doubtful relevancy or competency should be admitted and its weight left to the jury." Thomas v. State, 173 Ga.App. 810(1), 328 S.E.2d 422. The enumeration of error is without merit.

3. Appellant contends the trial court erred in denying his motions for directed verdict as to the claims of the Continental Insurance Company and Davis Parmer Lumber Company, Inc. We disagree.

(a) Appellant asserts that because Davis Parmer Lumber Company assigned its claims against appellant to the Continental Insurance Company suit must be brought solely in the name of the assignee. OCGA § 9-11-25(c) provides that "[i]n [any] case of any transfer of interest, the action may be continued by or against the original party unless the court, upon motion, directs the person to whom the interest is transferred to be substituted in the action or joined with the original party." (Emphasis supplied.) This subsection vests discretion in the trial judge to allow the original plaintiff to continue suit either alone or joined by the interest transferee when the transfer of interest occurred after the filing of the suit. See generally Rives E. Worrell Co. v. Key Systems, 147 Ga.App. 383(1), 248 S.E.2d 686; Employers' Liability Assur. Corp. v. Keelin, 132 Ga.App. 459(1), 208 S.E.2d 328, cert. den.; Ga.Prac. & Proc. (5th ed.), § 4-170. Thus, OCGA § 9-11-25(c) "contemplates a transfer of interest, during the litigation, from one who is a party to the case to one who is not." Commercial, etc., Co. v. Ed Collins, etc., 147 Ga.App. 183, 184, 248 S.E.2d 220. Contrary to appellant's contentions, the assignment of interest occurred after this suit was filed. Thus, OCGA § 9-11-25(c) is not rendered inoperative due to a transfer of interest prior to suit filing. However, OCGA § 9-11-25(c), when operative, does not automatically authorize the continuance of an original action in all cases following the transfer of an interest. Goodyear v. Trust Co. Bank, 248 Ga. 407, 408, 284 S.E.2d 6. If a cause of action does not survive a subsequent transfer of interest, OCGA § 9-11-25(c), standing alone, would not revive it. See Goodyear, supra at 408, 284 S.E.2d 6. Considering the terms of the subsequent assignment in its entirety, the intent and conduct of the parties thereto, and the evidence of record regarding partial payment of Davis Parmer Lumber Company's claim by the insurer, we find that Davis Parmer Lumber Company's personal cause of action survived the subsequent transfer of interest by assignment, at least as to that portion of its original claim in excess of the amount paid by its insurer. Accordingly, the trial court, in the exercise of its discretion,...