Head v. CSX Transp., Inc., A03A0146.

• Decision Date: 16 January 2003
• Docket Number: No. A03A0146.,A03A0146.
• Citation: 259 Ga. App. 396,577 S.E.2d 12
• Parties: HEAD v. CSX TRANSPORTATION, INC.
• Court: Georgia Court of Appeals

577 S.E.2d 12

259 Ga. App. 396

HEAD v. CSX TRANSPORTATION, INC.

No. A03A0146.

Court of Appeals of Georgia.

January 16, 2003.

Reconsideration Denied January 31, 2003.

Taylor, Harp & Callier, John S. Taylor, John A. Harp, Jefferson C. Callier, Columbus, for appellant.

Casey, Gilson & Leibel, James E. Gilson, Sandra Gray, Atlanta, L. Ray Patterson, Athens, for appellee.

ELDRIDGE, Judge.

This is a discretionary appeal from the grant of new trial to CSX Transportation, Inc., a Virginia corporation in the interstate railroad business, from a jury verdict against it in a Federal Employers' Liability Act case. The grant of the new trial was on the special grounds of conflict of interest between plaintiff's counsel and an affiliated corporation to CSXT; the basis of the alleged conflict in interest was that one of the counsel for the plaintiff had a partner who had represented CSX Intermodal, Inc., a Delaware corporation in the trucking business, in another unrelated case, unbeknownst to plaintiff's counsel and which representation was not discovered until jury deliberation but which was prior to the verdict and judgment. Finding that the trial court erred as a matter of law in ruling on the special grounds for a new trial that had not been preserved by motion made prior to entry of judgment, we reverse, without the necessity of determining if there actually existed a conflict or if such conflict mandated a new trial. Accordingly, we vacate the order granting a new trial, reinstating the judgment.

On Wednesday, July 11, 2001, the trial commenced; on or before Friday, July 13, 2001, CSXT learned that a purported conflict of interest existed between Ms. Thomas as plaintiff's co-counsel and her partner, Michael Goldman, in the large firm of Hawkins & Parnell. Goldman was representing CSX Intermodal in separate litigation in which CSXT had been sued in what was, in reality, a workers' compensation case against CSX Intermodal and not a valid suit against CSXT. On Friday, CSXT complained to plaintiff's counsel about the alleged conflict but neither informed the trial court nor made a motion to the court. Although CSXT knew of the alleged conflict during trial, prior to the return of the verdict, and prior to the entry of judgment, it made no timely motion to disqualify counsel or to have the trial court take any corrective action. Even on Monday, July 16, 2001, when judgment was entered, CSXT remained silent and did not bring the issue before the trial court by motion. However, on July 27, 2001, for the first time in the motion for new trial as a special ground, some 14 days later, CSXT raised the issue of conflict of interest of counsel for the first time. On February 7, 2002, the trial court granted a new trial on this special ground of conflict of interest.

Plaintiff contends that CSXT failed to timely raise the conflict issue, waiving it, and that the trial court erred as a matter of law in granting a new trial based upon such special grounds. We agree.

It has long been the law in Georgia that a party must make either a written or oral objection or motion timely prior to or at trial so that the trial court may rule upon the issue to preserve it, or such issue is waived and not preserved. A party is not allowed to remain silent regarding an objection or grounds for error and gamble on a favorable jury verdict, expecting that he can raise such objection later in a motion for new trial. Hardeman v. State, 272 Ga. 361, 362, 529 S.E.2d 368 (2000); Spencer v. State, 260 Ga. 640, 398 S.E.2d 179 (1990). Such tactics result in the alleged error being waived. Wilkes v. Dept. of Transp., 176 Ga.App. 739, 742(3)(b), 337 S.E.2d 404 (1985). Such gamesmanship brings the counsel and the judicial system into disrepute.

[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. The mere fact that the public may perceive some conduct as improper is, without some actual impropriety, insufficient justification for interference with a client's right to counsel of choice.

Blumenfeld v. Borenstein, 247 Ga. 406, 408, 276 S.E.2d 607 (1981). "Disqualification not only curtails a client's right to counsel of choice, but results in expense and delay that are costly both to the client and to the administration of justice." (Citation omitted.) Ga. Baptist Health Care System v. Hanafi, 253 Ga.App. 540, 541, 559 S.E.2d 746 (2002).

A conflict of interest motion or objection to counsel must be timely raised, and "[a] motion to disqualify should be made with reasonable promptness after a party discovers the facts which lead to the motion." (Citation and punctuation omitted.) Ga. Baptist Health Care System v. Hanafi, supra at 541. "A failure to make a reasonably prompt motion to disqualify may result in the conflict being waived." Id. When a civil case is in the discovery stage four months after filing and when no prejudice results from cost or delay, "under [these] circumstances we consider [such time] reasonably prompt." (Citations omitted.) Summerlin v. Johnson, 176 Ga.App. 336, 341(3), 335 S.E.2d 879 (1985). However, at or during trial, such motion involves both delay and potential prejudice to the nonmoving party and causes a squandering of judicial resources. Ga. Baptist Health Care System v. Hanafi, supra at 542, 559 S.E.2d 746.

Although the length of the delay in bringing a motion to disqualify is obviously important, it is not dispositive. The court must consider the length of the delay in light of the circumstances of the particular case, which include "when the movant learned of the conflict; whether the movant was represented by counsel during the delay; why the delay occurred; and whether disqualification would result in prejudice to the nonmoving party.

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