Hill Aircraft & Leasing Corp. v. Tyler

Decision Date06 January 1982
Docket NumberNo. 62701,62701
Citation291 S.E.2d 6,161 Ga.App. 267
CourtGeorgia Court of Appeals

James F. Stovall, III, Atlanta, for appellant.

James S. Owens, Jr., Columbus, George R. Neuhauser, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This is a legal malpractice case against an attorney. It arises out of a lawsuit filed by Frank M. Flanders against Hill Aircraft & Leasing Corporation (Hill Aircraft). In July of 1967 Hill Aircraft had sold an airplane (a used Aero Commander) to Flanders. Flanders later suffered numerous problems with the airplane and brought suit against Hill Aircraft alleging misrepresentation and certain claimed damages, including punitive damages, in excess of $100,000. This case came on for trial and was voluntarily dismissed by the plaintiff. Hill Aircraft was represented at that time by attorney Tyler.

On or about April 26, 1973, within six months of the voluntary dismissal, Flanders filed a second lawsuit against Hill Aircraft which was identical to the first Flanders lawsuit. This case came in default, the reasons by which it came in default being the basis for the present existing lawsuit brought by Hill Aircraft against its attorney, Tyler. However, that lawsuit proceeded to trial resulting in a verdict for the defendant. But in Flanders v. Hill Aircraft etc. Corp., 137 Ga.App. 286, 223 S.E.2d 482, it was reversed. Tyler, at some point in time during the pendency of the refiled suit, did represent Hill Aircraft, although it is disputed that he allowed the case to become in default. He was later relieved and other counsel represented Hill Aircraft. The case was re-tried and resulted in a verdict for Flanders in the amount of $22,500. Following a judgment in Flanders' favor Hill Aircraft & Leasing Corporation appealed, and in Hill Aircraft etc. Corp. v. Flanders, 143 Ga.App. 504, 239 S.E.2d 155, the judgment of the trial court awarding Flanders $22,500 was affirmed. Certiorari application to the Supreme Court of Georgia was subsequently denied.

The case sub judice was then filed against plaintiff's former attorney, Tyler, with reference to his alleged failure to file an answer to the second suit within 30 days nor an answer within 15 days following the expiration of 30 days which resulted in that case being in default whereby the plaintiff was allegedly denied the right to file a valid legal defense to the action. The pleadings set forth in detail the above facts with reference to the trial and re-trial and judgment was sought against the defendant for the amount of the judgment ($22,500) plus all expenses involved to the plaintiff during the litigation, the same being in two counts. Count 1 was for breach of contract and Count 2 for negligence in allowing plaintiff to suffer default judgment against it thereby preventing it from filing a valid legal defense. The pleadings were subsequently amended to seek judgment under the circumstances for the amount of the previously rendered judgment against the plaintiff, attorney fees for the extreme bad faith of the defendant and exemplary damages, totaling $150,000 in addition to the amount of the judgment returned against the plaintiff as a result of the defendant's alleged breach of contract and negligence in representing the plaintiff in the lawsuit.

The defendant answered, inter alia, denying the claim, admitting, however, that he had been counsel for the plaintiff and that he had represented the plaintiff in various lawsuits in the past, and that the substance of the litigation was as shown in Flanders v. Hill Aircraft etc. Corp., 137 Ga.App. 286, 223 S.E.2d 482, supra, and Hill Aircraft etc. Corp. v. Flanders, 143 Ga.App. 504, 239 S.E.2d 155, supra.

The case proceeded to trial with verdict and judgment in favor of the defendant. A motion for new trial was filed and, after a hearing, denied. Plaintiff appeals. Held :

1. The case sub judice, on its facts, is somewhat the reverse of McDow v. Dixon, 138 Ga.App. 338, 339, 226 S.E.2d 145, in that it is a legal malpractice action for failure to file an answer and allowing the case to become in default. The McDow v. Dixon case is one for failure of an attorney to properly file an action for damages within the statute of limitation. Here the client is now suing its attorney for malpractice, and the case was lost allegedly by its attorney due to his negligence or breach of contract, contending that if counsel had performed as required a judgment in the client's favor would have resulted instead of a judgment against it. In the case sub judice the jury could have found that the defendant attorney never received nor was he notified of the lawsuit in question until such time after period for filing an answer had expired and the case came into default, albeit that it could have found that his non-action in failing to answer the suit resulted in the default judgment. After the verdict of a jury has been returned the evidence is construed most favorably to the prevailing party as every presumption and inference is in favor of the verdict. See Brown v. Nutter, 125 Ga.App. 449, 450(1), 188 S.E.2d 133; West Lumber Co. v. Schnuck, 85 Ga.App. 385, 392(12), 69 S.E.2d 577; Scott v. Imperial Hotel Co., 75 Ga.App. 91, 93, 42 S.E.2d 179; Hill Aircraft etc. Corp. v. Flanders, 143 Ga.App. 504, 505(2), 239 S.E.2d 155, supra. The trial court correctly denied the plaintiff's motion for new trial as it cannot be said that the verdict of the jury was contrary to the evidence and without evidence to support it.

2. Prior to the trial a motion in limine was sought, among other things, to preclude the defendant from adducing evidence or mentioning in the presence of the jury any statements concerning alleged negligent conduct or improper handling of the litigation and resulting appeals in the Flanders lawsuit subsequent to defendant Tyler's withdrawing from the case. Such a motion in limine is similar in purpose and function to a preliminary ruling on evidence at a pretrial conference. See Code Ann. § 81A-116(5) (Ga.L.1966, pp. 609, 628; 1967, pp. 226, 231; 1968, pp. 1104, 1106); Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285-286(1), 260 S.E.2d 20. The Flanders case which became in default was heard by a trial jury to assess damages which involved "expenses incurred in repairs and maintenance of the aircraft, installment payments made pursuant to contract, attorney fees, and punitive damages for fraudulent and deceitful representations." See Flanders, 137 Ga.App. 286, 223 S.E.2d 482, supra. Consequently, the resulting default may or may not have been the proximate cause of the loss determined by the jury. The plaintiff client (therein the defendant) was under an obligation to take steps to minimize the damage. See Garber v. Housing Authority of the City of Atlanta, 123 Ga.App. 29, 31(3), 179 S.E.2d 300. Consequently, the evidence of the conduct of the plaintiff's attorneys after this defendant no longer represented it was properly admitted to determine whether this defendant was liable, if in fact he was the proximate cause of the default. The plaintiff's motion in limine which sought to limit the evidence going to the jury was properly denied, and the trial court correctly allowed testimony to go to the jury with reference to the Flanders cases after this defendant was dismissed as attorney by the plaintiff.

3. The next enumeration of error contends that the trial court erred in not granting the plaintiff's motion to strike certain hearsay testimony with reference to who told the witness Flanders that the number of hours on the aircraft engine was incorrect, supposedly a former employee of the plaintiff. Flanders (the witness) had been examined and cross-examined extensively with reference to this issue by counsel for both sides, and the question of incorrect engine hours had been addressed by plaintiff's counsel on more than one occasion, the testimony concerning engine hours being based on testimony of a former employee of the plaintiff. No objection was made to this testimony until it appeared that the witness' testimony was based on hearsay and a motion to strike was made. The trial court overruled the motion to strike this portion of the testimony on cross-examination as to what this individual told the witness as being hearsay because counsel had had an opportunity previously to object to that testimony, had let it become evidence, had called it to the attention of the witness, thus being the party going into the matter and allowing the opposing party to cross-examine him with reference thereto. Hence, the subject matter was opened up by the plaintiff's counsel. The admission of this evidence over a party's objection will, in no event, require the grant of a new trial when that party had substantially the same evidence admitted without objection. Reed v. State, 195 Ga. 842(1), 847, 25 S.E.2d 692; Cooley v. Bergstrom, 3 Ga.App. 496(2), 499, 60 S.E. 220. Further, inadmissible hearsay evidence is without probative value to support a verdict in this state. Nevertheless, the failure to raise a given point of evidence law at trial results in the waiver of it, and a jury verdict will not be set aside merely because evidence without probative value was admitted, particularly where the testimony was adduced by counsel for the party who now asserts error. See McCrary v. State, 124 Ga.App. 649(1), 185 S.E.2d 586. In addition there was other testimony regarding possible misrepresentations of the aircraft and such misrepresentations could easily influence the jury to determine that same were made by an agent of the plaintiff whereby the jury could conclude that the plaintiff (defendant in the original case) lost the original case with or without the testimony alleged to be hearsay here. There is no merit in this complaint.

4. The next enumeration of error contends that the trial court...

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    ...circumstances, and such action must be judged against those circumstances rather than its results. See Hill Aircraft & Leasing Corp. v. Tyler, 161 Ga.App. 267, 273, 291 S.E.2d 6 (1982) (“The operative question on the issue of the required degree of care and skill of the attorney is whether ......
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