Moses v. Jordan, A11A0218.

• Decision Date: 07 February 2013
• Docket Number: No. A11A0218.,A11A0218.
• Citation: 738 S.E.2d 297,319 Ga.App. 706
• Parties: MOSES v. JORDAN.
• Court: Georgia Court of Appeals

319 Ga.App. 706

738 S.E.2d 297

MOSES

v.JORDAN.

No. A11A0218.

Court of Appeals of Georgia.

Feb. 7, 2013.

Mark E. Robinson, Saint Simons Island, for Appellant.

Gary B. Blasingame, Athens, Robert P. Killian, Brunswick, for Appellee.

BOGGS, Judge.

In Division 1 of Moses v. Jordan, 310 Ga.App. 637, 714 S.E.2d 262 (2011), we reversed the trial court's grant of summary judgment to Randall Jordan on Mary Helen Moses' claim for wrongful dissolution of their law partnership. Id. at 639–642(1), 714 S.E.2d 262. In Jordan v. Moses, 291 Ga. 39, 727 S.E.2d 460 (2012), the Supreme Court reversed our decision in Division 1 on the ground that we included in our recitation of the applicable law the phrase “the new prosperity of the partnership” from our opinion in Arford v. Blalock, 199 Ga.App. 434, 405 S.E.2d 698 (1991), rather than the Supreme Court's subsequent formulation of the standard as “the prosperity of the partnership” in Wilensky v. Blalock, 262 Ga. 95, 414 S.E.2d 1 (1992).¹ The Supreme Court held that “[t]he gravamen of a wrongful dissolution claim is a partner's attempt to appropriate, through the dissolution, the assets or business of the partnership, which may include prospective business, without adequate compensation to the remaining partners.” Jordan, supra, 291 Ga. at 43, 727 S.E.2d 460. Accordingly, we vacate Division 1 of our opinion and adopt the Supreme Court's decision as our own as to that division.²

The Supreme Court also remanded the case to this court “for proceedings consistent” with its opinion because this court “cited the disapproved language regarding ‘new prosperity.’ ” Id. at 44, 727 S.E.2d 460. According to the Supreme Court, it was unclear whether we considered a conflict in the evidence

as indicative solely of Jordan's state of mind at the time he decided to dissolve the partnership, with a coincident intent to deprive Moses of some unidentified prospective business opportunity of the partnership, or whether the Court of Appeals considered the above evidence as showing that Jordan intended, through the dissolution, to retain a fee that was misappropriated from partnership funds.

Id. Accordingly, we hereby clarify that the record before us demonstrates a genuine issue of material fact as to whether Jordan attempted “to appropriate, through the dissolution, the assets or business of the partnership ... without adequate compensation to the remaining partner [ ]”—Moses. 291 Ga. at 43, 727 S.E.2d 460.

Judgment reversed.

DILLARD, P.J., concurs.

McFADDEN, J., concurs fully and specially.

McFADDEN, Judge, concurring fully and specially.

I concur fully in the majority opinion. I agree that the Supreme Court's disapproval of our use of the expression “new prosperity” does not alter the remainder of our analysis of the wrongful dissolution claim. And the remaining divisions of our earlier opinion, which were not addressed or considered by the Supreme Court, remain the law of the case. See Shadix v. Carroll County, 274 Ga. 560, 563(1), 554 S.E.2d 465 (2001).

I write separately to emphasize that the parties and the trial court should not be misled by the Supreme Court's judgment line, which indicates reversal. That reversal does not reflect acceptance of Jordan's argument on certiorari. Jordan argued that this court had failed to sufficiently consider the issue of new or future prosperity. He argued that the firm's clients had been his clients before the partnershipformed and remained his clients after it dissolved. Consequently, according to Jordan, Moses had no claim on the firm's new or future prosperity and therefore no claim for wrongful dissolution. The Supreme Court granted Jordan's petition for certiorari in order to determine whether this court “applied the proper legal analysis in reversing the grant of summary judgment on the wrongful dissolution claim.” Jordan v. Moses, 291 Ga. 39, 727 S.E.2d 460 (2012).

The Supreme Court did find fault with our analysis of that claim. But it was...