Moore v. Moore

• Court: Georgia Supreme Court
• Writing for the Court: Carley
• Citation: Moore v. Moore, 635 S.E.2d 107, 281 Ga. 81 (Ga. 2006)
• Decision Date: 18 September 2006
• Docket Number: No. S06F0930.,No. S06F0929.,No. S06F0927.,No. S06F0928.,S06F0927.,S06F0928.,S06F0929.,S06F0930.
• Parties: MOORE v. MOORE et al. Minshew v. Moore et al. Moore v. Crisp Farms, Inc. et al. Crisp Farms, Inc. v. Moore et al.

281 Ga. 81

635 S.E.2d 107

MOORE v. MOORE et al.

Minshew v. Moore et al.

Moore v. Crisp Farms, Inc. et al.

Crisp Farms, Inc. v. Moore et al.

No. S06F0927.

No. S06F0928.

No. S06F0929.

No. S06F0930.

Supreme Court of Georgia.

September 18, 2006.

Reconsideration Denied October 16, 2006.

Claire Copeland Chapman, Susan Yandle Middleton, Stone & Chapman, P.C., Macon, for Appellant in No. S06F0927.

Kice H. Stone, Stone & Chapman, P.C., Macon, for Appellant in No. S06F0927 and Appellee in No. S06F0930.

David N. Rainwater, Rainwater & Harpe, LLP, Cordele, for Appellee in Nos. S06F0927, S06F0928, and S06F0930, and Appellant in No. S06F0929.

Thomas Harry Hurt, Hurt & Associates, Cordele, for Appellee in No. S06F0929 and Appellant in No. S06F0930.

John Craig Cotton, Cotton Law Firm, P.C., Cordele, for Appellant in No. S06F0928 and Appellee in No. S06F0930.

CARLEY, Justice.

In 2003, Anthony Keith Moore (Husband) brought this divorce action against Anne Gibbs Moore (Wife), who filed an answer and counterclaim for divorce. Wife later moved to add Crisp Farms, Inc. and Amy K. Minshew as third-party defendants, and to file an amended answer and counterclaim setting forth claims of fraudulent conveyance and conversion against them. The trial court granted that motion, and subsequently realigned the parties, making Wife the plaintiff and the remaining three parties defendants, and declining to award any additional jury strikes. The trial court also denied the third-party defendants' motions for summary judgment and Ms. Minshew's motion for separate trial.

At trial, Crisp Farms moved for a directed verdict, which the trial court granted. The jury made findings with regard to alimony and equitable division of property, found that Husband made fraudulent conveyances to Ms. Minshew, and awarded Wife $28,733.50 against her. The trial court entered a final judgment of divorce on the jury's verdict. In Case Numbers S06F0927 and S06F0928, Husband and Ms. Minshew, respectively, appeal pursuant to the grant of their applications for discretionary appeal under this Court's Pilot Project for divorce cases. Wife and Crisp Farms cross-appeal in Case Numbers S06F0929 and S06F0930, respectively.

Case Number S06F0927

1. Husband contends that the trial court erred by realigning the parties so as to change his status from plaintiff to defendant.

Pursuant to OCGA § 9-11-21, "`at any stage of the action and on such terms as are just,'" a trial court has the discretion to realign parties, as by changing the status of a party from defendant to plaintiff. Cawthon v. Waco Fire & Casualty Ins. Co., 259 Ga. 632, 633, 386 S.E.2d 32, (1989). See also Naimat v. Shelbyville Bottling Co., 240 Ga. App. 693, 694(1), 524 S.E.2d 749 (1999). With regard to the converse, if there are not any viable claims pending against a plaintiff, assigning him the role of a defendant would not generally be appropriate, except perhaps in rare cases involving complex litigation. Otherwise, such a party "would bear the burden of proof cast upon a plaintiff without being afforded the concomitant rights that balance that burden: making the first opening statement, presenting its case-in-chief first, and opening and closing argument." William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 642(8), 466 S.E.2d 872 (1995).

Husband argues that the trial court's realignment order deprived him of these rights. As the trial court stated, however, both parties sought a divorce and equitable division of marital assets, but Wife made additional claims and had the burden of proof regarding alimony, adultery, attorney's fees, and fraudulent transfers. Thus, Wife had a significantly heavier burden of proof than did Husband. The procedural rights which a plaintiff typically exercises at trial, including the important right to opening and concluding arguments, actually belong to whichever party bears the burden of proof. These rights are neither allocated on the basis of the denomination of the parties, nor logically conferred upon a defendant only when he bears the entire burden of proof. This analysis is confirmed by the language of statutory and case law in Georgia. "`"The party on whom the burden of proof rests has the right to open and conclude the cause before the jury."' [Cit.]" Hussey v. Hussey, 273 Ga. 735, 736(1), 545 S.E.2d 880 (2001). See also OCGA § 9-10-186.

Therefore, we conclude that a trial court has the discretion to realign a plaintiff as a defendant where, as here, an opposing party with legitimate claims has a more extensive burden of proof. If, on appeal, certain claims or parties are eliminated or reinstated, then realignment can be reconsidered on remand. William Goldberg & Co. v. Cohen, supra.

2. Husband urges that the trial court erroneously granted Wife's motion to add Crisp Farms as a third-party defendant, because in this case, unlike Gardner v. Gardner, 276 Ga. 189, 191(1), 576 S.E.2d 857 (2003), there were not any marital assets to be ferreted out of the corporation. However, where, as here, one party to a divorce proceeding alleges that fraudulent conveyances of property were employed to defeat that party's rights, joinder of additional parties involved in the alleged fraud is proper in order to facilitate a complete resolution of the issues. DeGarmo v. DeGarmo, 269 Ga 480, 481(2), 499 S.E.2d 317 (1998). Compare Searcy v. Searcy, 280 Ga. 311, 312-313(2), 627 S.E.2d 572 (2006). Husband's argument that he was harmed by having to share peremptory strikes with Crisp Farms could be relevant only as part of a harmless error analysis, which obviously is unnecessary in light of our holding above. Compare Kraft General Foods v. Maxwell, 219 Ga.App. 211, 213(2), 464 S.E.2d 639 (1995) (where Court of Appeals based its resolution of similar enumeration not on error vel non, but rather on one defendant's failure to allege any harm from trial court's addition of another defendant).

3. Husband enumerates as error the denial of Crisp Farms' motion for summary judgment. However, Husband does not have standing to complain of this ruling as to another party's motion. See Management Compensation Group/Southeast v. United Security Employee Programs, 194 Ga.App. 99, 103(3), 389 S.E.2d 525 (1989); Saunders v. Vikers, 116 Ga.App. 733, 734(1), 158 S.E.2d 324 (1967). Moreover, "direction of a verdict, where affirmed, renders the denial of summary judgment moot. [Cit.]" Mitchell v. Backus Cadillac-Pontiac, 274 Ga. App. 330, 339(7), 618 S.E.2d 87 (2005). As we are reviewing the direction of a verdict in favor of Crisp Farms in Division 9 below, "if the evidence supports the findings of the trial judge in directing the verdict and granting judgment for [Crisp Farms], the issue as to the denial of [its] motion for summary judgment becomes moot." Gosnell v. Waldrip, 158 Ga.App. 685, 686(1), 282 S.E.2d 168 (1981).

This conclusion is not altered by the fact that Husband would not have been required to share peremptory challenges with Crisp Farms if its motion for summary judgment had been granted. It is not the denial of that motion, but rather the trial court's decision declining to award additional peremptory strikes, which prevented Husband from gaining the sole right to exercise all six strikes to which each side is ordinarily entitled. See Naimat v. Shelbyville Bottling Co., supra; Keller Indus. v. Summers Roofing Co., 179 Ga.App. 288, 290(1), 346 S.E.2d 99 (1986). The trial court apparently addressed the issue of additional peremptory challenges sua sponte, and Husband has not identified any portion of the record showing that he ever objected specifically to the number of strikes. Norris v. State, 250 Ga. 38, 39(1), 295 S.E.2d 321 (1982); Davis v. Davidson, 175 Ga.App. 451, 453(3), 333 S.E.2d 648 (1985). In any event, Husband fails to enumerate the trial court's decision not to award additional peremptory strikes.

4. Husband also contends that the trial court erred in denying his motion to strike for cause a prospective juror who is a client of Wife's attorney in an ongoing litigated matter.

We have been reluctant to extend the automatic disqualification rules for jurors beyond the statutorily prohibited relationships and, in criminal cases, full-time law enforcement officers and employees of the prosecutor's office. Floyd v. State, 272 Ga. 65, 67(2), 525 S.E.2d 683 (2000); Clark v. State, 246 Ga.App. 842-843, 542 S.E.2d 588 (2000). Thus, a member of the jury panel who is a current patient of the defendant in a medical malpractice action is not automatically disqualified. Cohen v. Baxter, 267 Ga. 422, 423(1), 479 S.E.2d 746 (1997). The rationale of Cohen is applicable here:

Trial courts are often faced with jurors who have close relationships with parties in both civil and criminal cases. We have confidence that trial courts can ascertain whether a juror is partial because of a [lawyer-client] relationship with [one party's attorney] just as well as the trial court can determine bias arising from other sources. A per se rule cuts too broadly and is inconsistent with the traditional discretion given trial courts in this area. Furthermore, there are various close and confidential relationships that a juror may have with a party [or attorney] and the establishment of a per se rule to the [lawyer-client] relationship will open the door to the expansion of the per se rule to these other numerous categories. Finally, a [broader] per se rule may render it extremely difficult to obtain a full panel ... in some rural counties.

Cohen v. Baxter, supra. See also Clark v. State, supra at 843, 542 S.E.2d 588 (prospective juror currently represented by the solicitor's law firm not automatically disqualified). Compare Crumpton v. Kelly, 185 Ga.App. 245, 246(1), 363 S.E.2d 799 (1987) (disqualification because of business relationship where prospective juror was not a client or patient, but rather was the attorney for governmental entity which created one of the parties).

Accordingly,...