Olagbegi v. Hutto

• Decision Date: 15 March 2013
• Docket Number: No. A12A2496.,A12A2496.
• Citation: 320 Ga.App. 436,740 S.E.2d 190
• Parties: OLAGBEGI, et al. v. HUTTO.
• Court: Georgia Court of Appeals

320 Ga.App. 436
740 S.E.2d 190

OLAGBEGI, et al.
v.
HUTTO.

No. A12A2496.

Court of Appeals of Georgia.

March 15, 2013.

[740 S.E.2d 191]

Neville Trevor Francis, Toby Kei Leana Morgan, for apellants.

Daniel Hutto, pro se.

ELLINGTON, Chief Judge.

[320 Ga.App. 436]The defendants/appellants, Martin Olagbegi and Nile, Inc. (collectively, “Olagbegi”), appeal from the trial court's award of damages to the plaintiff/appellee, Daniel Hutto, in this breach of contract case. ¹ Olagbegi contends that the trial court abused its discretion in permitting Hutto's attorney to represent him at trial and erred in awarding Hutto $67,749.55 in consequential damages. For the following reasons, we affirm the court's judgment in part and reverse in part.

1. Olagbegi contends that the trial court abused its discretion in permitting an attorney, who is admitted to practice law in South Carolina but not in Georgia, to appear pro hac vice and be the sole attorney for Hutto at trial.² In support of this contention, Olagbegi argues that the attorney failed to submit a complete, verified application to appear pro hac vice and timely pay a required filing fee and that, because the application was incomplete, the attorney could not represent Hutto at trial without being accompanied by an active member of the State Bar of Georgia.

The record shows that, on March 2, 2012, Hutto's attorney filed an application to appear pro hac vice in the trial court after serving Olagbegi's attorney and the State Bar of Georgia with the application. Neither Olagbegi nor his attorney objected to the attorney's application before trial. See USCR 4.4(D)(2) (a party may file an objection to the application or seek the court's imposition of conditions to its being granted); see also Footnote 3, infra. At the beginning of the bench trial on March 7, Olagbegi's attorney made the following statement:

[A] pro hac vice motion ... was filed sometime around February 29th, and the certificate of service was signed by [Hutto] and not the lawyer. As far as my certification [of service] is concerned[,] the only two people that were served at all is myself and somebody ... from [Walton] County. The Bar is not served on my certificate of service and ... the local [320 Ga.App. 437]attorney ... did not submit written notice of appearance and that is all I want to get on the record.

(Emphasis supplied.) Without directly responding to this purported objection, the trial court judge said, “All right, [Hutto's attorney] may proceed on behalf of the plaintiff.” Neither Olagbegi nor his attorney asked for the judge to expressly rule on the objection, objected to proceeding with the trial without further discussion on the issue of the opposing attorney's appearance pro hac vice, proffered a factual basis for the objection for the record,³ or made any further statement about the matter during the trial.

[740 S.E.2d 192]

Given these circumstances, we conclude that Olagbegi failed to pose timely and specific objections to the alleged errors in the trial court and, thus, waived his right to appellate review of those issues. “[O]bjections must be specific such that the objecting party must advise the trial court as to what action it wants taken.” (Citation omitted.) Old Stone Co. I v. Hughes, 284 Ga. 259, 261(2), 663 S.E.2d 687 (2008). If the trial court does not take the requested action or otherwise resolve the issue to the objecting party's satisfaction, the party must “stand his ground and fight in order to successfully enumerate as error an alleged erroneous ruling by the trial judge.” (Citation and punctuation omitted.) Id. It is axiomatic that a “litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same” on appeal. (Citation and punctuation omitted.) Id. at 262(3), 663 S.E.2d 687. Moreover, “[i]t is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver.” (Punctuation and footnote omitted.) Pep Boys–Manny, Moe & Jack v. Yahyapour, 279 Ga.App. 674(2), 632 S.E.2d 385 (2006).

As shown in the brief statement quoted above, Olagbegi failed to raise any objection before or during trial to the substance or form of the attorney's application to appear pro hac vice, nor did he ask the trial court to deny the attorney's application as a consequence. Further, although he mentioned in passing that a “local attorney” had [320 Ga.App. 438]failed to submit a notice of appearance in this case, he did not articulate why that fact was significant, object to proceeding with the trial, or ask the trial court to take any action to address this alleged problem. Accordingly, these allegations of error were waived. Old Stone Co. I v. Hughes, 284 Ga. at 261–262(2), 663 S.E.2d 687;Pep Boys–Manny, Moe & Jack v. Yahyapour, 279 Ga.App. at 674(2), 632 S.E.2d 385; see Horan v. Pirkle, 197 Ga.App. 151, 151–153(1), 397 S.E.2d 734 (1990) (During a colloquy with the court, a party referred to certain testimony as “hearsay” but did not state a specific objection to the testimony, and he was silent after the court stated that the evidence was admissible as a declaration against interest. Under these circumstances, the party failed to raise a specific, timely objection to the testimony and, thus, waived appellate review of the issue.).

2. Olagbegi also contends that the trial court erred in awarding Hutto consequential damages in the amount of $67,749.55. We agree.

“The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.” (Citations, punctuation and footnote omitted.) Crowell v. Williams, 273 Ga.App. 676(1), 615 S.E.2d 797 (2005). Viewed in favor of the trial court's judgment, the record shows the following facts.

In 2002, Hutto began working for Nile, Inc. after Olagbegi, the sole officer and shareholder at that time, offered him partial ownership in the company. In 2004, Hutto and Olagbegi (acting on behalf of Nile, Inc.) entered into a contract wherein Hutto agreed to pay $1,500 for 1,500 shares of common stock and $156,500 for 15,650 shares of preferred stock. The contract stated that, concurrent with the execution of the contract, Nile, Inc. accepted a total of $158,000 from Hutto in full payment for the shares, and it stated...