Junger Utility & Paving Co., Inc. v. Myers, 88-1674

• Decision Date: 15 November 1989
• Docket Number: No. 88-1674,88-1674
• Citation: 578 So.2d 1117,14 Fla. L. Weekly 2650
• Parties: JUNGER UTILITY & PAVING CO., INC. and Melford Gene Oglesby, Appellants, v. M. Scott MYERS and Susan Myers and Metropolitan Property & Liability Insurance Company, Appellees. 578 So.2d 1117, 14 Fla. L. Week. 2650, 16 Fla. L. Week. D1272
• Court: Florida District Court of Appeals

Page 1117

578 So.2d 1117

JUNGER UTILITY & PAVING CO.,

INC. and Melford Gene

Oglesby, Appellants,

v. M. Scott MYERS and Susan Myers and Metropolitan Property &

Liability Insurance Company, Appellees.

No. 88-1674.

578 So.2d 1117, 14 Fla. L. Week. 2650, 16 Fla. L. Week. D1272

District Court of Appeal of Florida,

First District.

Nov. 15, 1989.

On Motion for Rehearing May 8, 1991.

Thomas J. Maida of Karl, McConnaughhay, Roland & Maida, and George N. Meros, Jr., of Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechsler, Tallahassee, for appellants.

W. Dennis Brannon of Dewrell & Brannon, Ft. Walton Beach, for appellees M. Scott and Susan Myers.

Robert C. Palmer, III, of Harrell, Wiltshire, Swearingen, Wilson & Harrell, Pensacola, for appellee Metropolitan Ins.

PER CURIAM.

Appellants seek reversal of a final judgment against them in a negligence action based upon a vehicular accident. They claim reversible error in the trial judge's ruling that their expert accident reconstructionist could not rely upon section 316.237, Florida Statutes, for an assumption that the headlights of the vehicle in which the plaintiff was a passenger illuminated at least 150 feet, the minimum standard set by the statute. They also claim that the final judgment should be reversed because the predecessor judge erred in denying their motion to disqualify plaintiff's counsel (the Dewrell firm) on the grounds of conflict of interest. We affirm the final judgment, but conclude that both issues warrant discussion.

We affirm on the issue of the evidentiary ruling because appellants have not demonstrated that the trial court's ruling deprived them of the ability to present the expert witness' opinion that the driver of the vehicle in which the plaintiff was riding had sufficient time in which to brake or take other evasive action that would have avoided the rear-end accident. Sufficient evidence was presented upon which the expert could have based his opinion, without relying upon the statute.

As to the denial of the motion to disqualify plaintiff's counsel, the uncontroverted evidence indicates that the Dewrell firm represented Junger Utility & Paving Company, Inc. (Junger) on other matters at the time of the accident, that Junger sought and obtained the advice of his attorney at the Dewrell firm the day after the accident regarding how to handle investigators attempting to view the company truck involved in the accident, and that an attorney-client relationship therefore existed between Junger and the Dewrell firm with respect to the accident.

The plaintiff's motion to resolve the allegations of a conflict of interest states: "Immediately following the accident that is the basis for this suit, Plaintiffs retained the firm of Dewrell, Blue & Brannon to represent them against any persons or parties responsible for the injuries or damages they sustained." The uncontroverted evidence indicates that the Dewrell firm thereafter continued to represent Junger in an unrelated matter, and only later indicated to Junger its desire to represent the plaintiffs, which he resisted. Later, Junger dismissed the firm when it was discovered that the firm was in fact representing the plaintiffs. The Dewrell firm then filed the complaint against Junger and its driver.

We find that under the code of ethics applicable to members of The Florida Bar, ¹ To disqualify a private law firm from representing a party whose interests are adverse, the former client need show only that an attorney-client relationship existed, thereby giving rise to the irrefutable presumption that confidences were disclosed during the course of that relationship, and that the matter in which the law firm subsequently represented the interest adverse to the former client is the same matter or substantially similar to the matter in which it represented the former client. ³ Junger was not required to demonstrate specific prejudice to his case in order to justify disqualification. The judge should have disqualified the Dewrell firm from representing the plaintiffs in this action.

                this demonstrated conflict of interest required the disqualification of the Dewrell firm.   In his order denying the motion to disqualify plaintiff's counsel, the predecessor judge 2 found that Junger had not proved "that the matter embraced in the pending suit is substantially related to any matters or cause of action wherein plaintiffs' counsel previously represented JUNGER UTILITY & PAVING CO., INC." and had not proved "that by reason of the prior representation of defendant by plaintiffs' counsel that plaintiffs have gained unfair advantage in the pending litigation."
                

We reject appellees' contentions that appellants waived their right to raise the issue of disqualification, either before the trial court or on appeal. However, we find that under the particular circumstances of this case, appellants have not demonstrated that the final judgment should be reversed. While, for purposes of interlocutory review by certiorari, it is unnecessary to demonstrate actual prejudice to justify disqualification of opposing counsel, once the parties have proceeded through trial, most courts require a showing of prejudice in order to reverse the final judgment. ⁴ Appellants did not seek review by certiorari of the denial of their motion to disqualify plaintiff's counsel. Because the record does not demonstrate that appellants' case was actually prejudiced by confidences disclosed to the Dewrell firm, justification for reversal of the final judgment at this stage of the proceedings has not been demonstrated.

The final judgment is AFFIRMED.

BOOTH, JOANOS and BARFIELD, JJ., concur.

ON MOTION FOR REHEARING

The Motion for Rehearing is denied; however, we certify the following question to the Florida Supreme Court because it involves a matter of great public importance:

While, for purposes of interlocutory review by certiorari, it is unnecessary to demonstrate actual prejudice to justify disqualification of opposing counsel, once the parties have proceeded through trial, is a showing of prejudice required in order to reverse the final judgment?

JOANOS and BARFIELD, JJ., concur. BOOTH, J., dissents with written opinion.

BOOTH, Judge, dissenting.

I would grant rehearing and recede from that portion of the original opinion ¹ which holds that, although appellants' motion to disqualify appellees' attorneys should have been granted below, the judgment for appellees would be affirmed.

The facts are essentially undisputed. On February 4, 1984, Dr. Scott Myers was seriously injured when the automobile in which he was riding as a passenger ran into the rear of a dump truck owned by appellant Junger Utility and Paving Company and driven by appellant Melford Oglesby. The automobile in which Myers was riding was in turn rear-ended by another automobile.

On the day following the accident, Dean Junger, president of appellant corporation, ² called Walter Steigleman of the law firm of Dewrell, Blue, and Brannon (Dewrell firm), which firm had been earlier engaged on an ongoing basis to represent the paving company in "general" legal matters such as collections, litigation, and regulatory disputes. Junger related to Steigleman the essential details of the accident as he understood them and solicited Steigleman's advice on how to deal with incoming requests to inspect and photograph the truck involved and for statements regarding the accident. As he was to do several times over the next year or so, Junger also told Steigleman that the paving company was not at fault and that Junger personally had gone to the site of the accident shortly after it occurred to make sure the truck was not moved until the investigating officers were satisfied that the rear lights on the truck were functioning properly. Junger requested advice from Steigleman, who told him not to discuss the accident with anyone but his insurance company, not to let anyone see the truck, and to direct those inquiring about the accident to insurance company attorneys.

Almost immediately after the events described above, and without advising Junger, the Dewrell firm accepted employment on behalf of Dr. Myers and his wife to represent them "against any persons responsible for the injuries or damages they sustained."

It was 18 months or more after the accident before Mr. Junger and his wife were told at a meeting in the Dewrell firm's offices that the firm wanted to represent the Myers against Junger's insurance company. At the time, Junger expressed his concern to Steigleman that such a suit might have an adverse affect on his ability to obtain insurance. There had been previous conversations about the possibility of the Dewrell firm filing suit against the driver of the car in which Dr. Myers was riding at the time of the accident. However, the record reflects that at no time up to and including the date of the meeting in the Dewrell office was Junger advised that the firm intended to sue Junger's company on the Myers' behalf. Junger terminated his relationship with the Dewrell firm a few weeks after being told that it planned to sue his company. Some nine months later, the instant litigation was filed.

The Dewrell firm filed the complaint in the personal injury action on behalf of the Myers in July of 1986. Shortly thereafter, counsel for appellants raised the issue of conflict of interest on the part of the Dewrell firm. Efforts to resolve this issue informally proved unavailing, and the Dewrell firm sought judicial resolution by filing an appropriate motion and setting the matter for hearing. Appellants countered with a motion to disqualify the Dewrell firm from representing Dr. and Mrs. Myers.

At the hearing on appellants' disqualification motion, Dean Junger was the only witness called by either side. He testified concerning the ongoing nature of his company's relationship with the Dewrell firm, the substance of his telephone conversation with Steigleman the day...