Morrow v. Vineville United Methodist Church

• Decision Date: 06 June 1997
• Docket Number: A97A0391,Nos. A97A0390,s. A97A0390
• Citation: 227 Ga.App. 313,489 S.E.2d 310
• Parties: , 97 FCDR 2264 MORROW v. VINEVILLE UNITED METHODIST CHURCH et al. MORROW v. WOOD et al.
• Court: Georgia Court of Appeals

Page 310

489 S.E.2d 310

227 Ga.App. 313, 97 FCDR 2264

MORROW v. VINEVILLE UNITED METHODIST CHURCH et al.

MORROW v. WOOD et al.

Nos. A97A0390, A97A0391.

Court of Appeals of Georgia.

June 6, 1997.

Reconsideration Denied July 15, 1997.

Certiorari Denied Jan. 5, 1998.

L. Jeannine Morrow, pro se.

Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm, Atlanta, Martin, Snow, Grant & Napier, John T. McGoldrick, Jr., Jones, Cork & Miller, Thomas C. James III, Macon, King & Spalding, Frank C. Jones, Atlanta, O'Neal, Brown & Sizemore, Lamar W. Sizemore, Jr., Macon, for appellees.

RUFFIN, Judge.

Jeannine Morrow appeals pro se from several orders entered by the Bibb County Superior Court in these two companion cases. For reasons which follow, we affirm in part and reverse in part.

Morrow is one of 11 beneficiaries to a trust formed by Mabel Anderson Coggin, who died on May 31, 1990. The record reveals that in her will, Coggin bequeathed to the Vineville United Methodist Church Foundation ("the Church") a sum equal to ten percent of her gross estate as finally determined for federal estate tax purposes. Except for a few other minor personal property bequests, Coggin directed that the remainder of her estate be placed into the trust. The will further appointed Trust Company Bank of Middle Georgia ("Trust Company") as executor of Coggin's estate.

To satisfy the Church's bequest, Trust Company, as executor, transferred to the Church a percentage of the estate's interest in Burgess Washington Clay, Ltd. ("BWC"). The record shows that the Church then sold that interest to several BWC partners. Trust Company also sold the estate's remaining interest in BWC to various BWC partners.

Claiming that Trust Company had breached its fiduciary duty to the estate, transferred the estate's interest in BWC without consent, undervalued that interest, and overpaid the Church, Morrow and the other trust beneficiaries sued Trust Company, as well as BWC, Malcolm Burgess, Jr., and other unnamed partners in BWC (collectively "the Burgess defendants"). The trust beneficiaries later added the Church as a defendant on the theory of money had and received. ¹ This suit forms the basis of Case No. A97A0390. In a separate suit, which resulted in Case No. A97A0391, the trust beneficiaries sued the estate's attorneys for negligence, professional malpractice, and breach of fiduciary duty.

On October 19, 1994, the trial court granted summary judgment to the Burgess defendants. After further litigation and discovery, the remaining parties submitted to mediation on July 14, 1995. The Church and all trust beneficiaries except Morrow ("the appellee-trust beneficiaries") contend that a settlement agreement was reached during the mediation, pursuant to which the Church agreed to pay the estate $121,430.17 in exchange for a dismissal and release from suit. No agreements were reached with the other defendants.

Following the mediation, Morrow disputed the settlement with the Church and refused to sign the release prepared by her attorneys. The appellee-trust beneficiaries signed the agreement. Morrow's attorneys subsequently withdrew as her counsel, and the Church moved to enforce the settlement against her. After an evidentiary hearing, the trial court granted the Church's motion and enforced the Mutual Release and Settlement Agreement drafted by counsel.

At the time of the hearing, the appellee-trust beneficiaries also moved to appoint a "virtual representative" to represent the entire group of beneficiaries, including Morrow. To support their motion, the appellee-trust beneficiaries argued that Morrow's decisions to renege on the Church settlement and ignore the other beneficiaries' wishes with respect to litigation strategy had impeded progress on the cases. According to these beneficiaries, "Morrow is so angry and emotionally involved in these suits that she is not capable of making a rational decision on these matters, and would prefer to stall indefinitely if matters do not proceed her way." In their view, appointing a virtual representative would protect the interests of all beneficiaries, including Morrow, and enable the parties to arbitrate the cases, as desired by the other beneficiaries. The trial court granted the motion, appointed David E. Morrow, Sr. as a "virtual representative" of all beneficiaries, and dismissed the other beneficiaries from the cases.

Morrow appeals, claiming that the trial court erred in several respects. In Case No. A97A0390, she enumerates as error (1) the trial court's order appointing David E. Morrow, Sr. as "virtual representative" of the trust beneficiaries; (2) the trial court's order enforcing the settlement with the Church; and (3) the trial court's October 19, 1994 order granting summary judgment to the Burgess defendants. The enumerated errors in Case No. A97A0391 revolve solely around the virtual representation order, which was also entered in that case.

The parties have filed several motions, which we will resolve before addressing the merits of these appeals.

The appellee-trust beneficiaries have moved to recuse Presiding Judge Birdsong from these appeals. This recusal motion, however, is moot. As shown by a November 14, 1996 order of this Court, Presiding Judge Birdsong is not participating in the appeals. Accordingly, the appellee-trust beneficiaries' motion for recusal is denied. Morrow's related motion for sanctions is also denied.

In addition, Morrow has moved (1) to dismiss the appellee-trust beneficiaries as improper parties to the appeals and (2) to restyle the appeals so that those beneficiaries are not designated as appellees. Under OCGA § 5-6-37, "[a]ll parties to the proceedings in the lower court shall be parties on appeal...." See also Marsden v. Southeastern Sash & Door Co., 193 Ga.App. 597(1), 388 S.E.2d 730 (1989) (physical precedent only). The appellee-trust beneficiaries were parties to the trial court orders at issue here. Accordingly, they are proper parties to this appeal. OCGA § 5-6-37.

Furthermore, it appears that the appellee-trust beneficiaries' interests are primarily adverse to Morrow's interests in the appeals. The record shows that only Morrow opposed the Church settlement and that the appellee-trust beneficiaries moved the trial court to appoint a virtual representative, the two primary issues in these appeals. We conclude, therefore, that the appellee-trust beneficiaries were properly designated as appellees. Accordingly, Morrow's motions to dismiss the appellee-trust beneficiaries and to restyle the appeals are denied.

Case No. A97A0390

1. Morrow first argues that the trial court erred in appointing a "virtual representative" to represent all trust beneficiaries in the suit. We agree.

Although recognized by Georgia courts, the doctrine of virtual representation has received only limited discussion, and no Georgia decisions applying the doctrine are factually similar to this case. The Supreme Court of Georgia has described the doctrine as a method for encouraging the free alienation of property. Leathers v. McClain, 255 Ga. 378, 379, 338 S.E.2d 666 (1986). In Cooney v. Walton, 151 Ga. 195, 208, 106 S.E. 167 (1921), for example, the Court found that an individual holding a remainder in a life estate could virtually represent and bind his unborn children in a suit regarding the sale of the property. The Court noted that "[i]n cases where titles are complicated by limitations and contingencies, both private and public interests may, under some circumstances, require the sale of the involved real estate, even as against persons not in being. In such a situation, courts are sometimes impelled to act by expediency and practical necessity, binding the interests of person (sic) not in being by recourse to the principle of representation." Cooney, supra at 200, 106 S.E. 167.

Georgia courts have further described the doctrine as an "aid to securing justice, preventing hardship, inconvenience, and injustice." Webb & Martin, Inc. v. Anderson-McGriff Hardware Co., 188 Ga. 291, 295, 3 S.E.2d 882 (1939). Latching onto this language, the appellee-trust beneficiaries argue that justice required the trial court to take action in the face of Morrow's "intransigence." They also claim that a representative can adequately protect her rights because all of the beneficiaries share a common interest in the suits.

To support their position, the appellee-trust beneficiaries cite numerous cases from other jurisdictions that explain the virtual representation doctrine. The cited cases, however, do not address whether a virtual representative may be appointed to silence opposition and dissension within a group of party plaintiffs. On the contrary, these cases involve virtual representation where, as in Cooney, all potential parties cannot be or simply were not joined in a suit. See Bowles v. Superior Court, 44 Cal.2d 574, 283 P.2d 704 (Ca.1955); In re Estate of Putignano, 82 Misc.2d 389, 368 N.Y.S.2d 420 (1975); Pittman v. Barker, 117 N.C.App. 580, 452 S.E.2d 326 (1995). We have found, and the appellees have cited, no authority applying the doctrine of virtual representation to prevent a named plaintiff from further direct participation in a suit.

"The constitution of this state guarantees to all persons due process of law and unfettered access to the courts of this state. [Cit.] These fundamental constitutional rights require that every party to a lawsuit ... be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. [Cits.]" Hart v. Owens-Illinois, Inc., 165 Ga.App. 681, 682, 302 S.E.2d 701 (1983). The trial court's virtual representation ruling effectively shuts Morrow out of litigation that she, along with the other trust beneficiaries, commenced in her individual and representative capacities. Similarities between Morrow's interests and the representative's interests do not justify the virtual representation order. Furt...