Rolleston v. Cherry

• Decision Date: 06 March 1997
• Docket Number: A97A0056,Nos. A97A0051,s. A97A0051
• Parties: , 97 FCDR 1361 ROLLESTON v. CHERRY (Two Cases).
• Court: Georgia Court of Appeals

Page 354

487 S.E.2d 354

226 Ga.App. 750, 97 FCDR 1361

ROLLESTON v. CHERRY (Two Cases).

Nos. A97A0051, A97A0056.

Court of Appeals of Georgia.

March 6, 1997.

Reconsideration Denied June 11, 1997.

Certiorari Denied Oct. 31, 1997.

Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., Atlanta, for appellant.

Moreton Rolleston, Jr., Atlanta, pro se.

Shelby Outlaw, Scott M. Kaye, Decatur, for appellee.

BLACKBURN, Judge.

The estate of Rebecca Wight Cherry Sims (Cherry) sued Moreton Rolleston, Jr., Cherry's former attorney, alleging claims of professional negligence, breach of fiduciary duty, fraud, contribution and indemnity. The jury returned a verdict against Rolleston in the amount of $5,200,000. Rolleston appeals, contending that the trial court made numerous errors in charging the jury and in failing to grant Rolleston's motions for summary judgment and directed verdict.

Cherry owned a one-fourth undivided interest in certain beach property on St. Simons Island known as Camellia Cottage. Over the years, as the ocean receded, additional land had accreted between Camellia Cottage and the ocean. In August 1983, Cherry hired Rolleston, a long-time family friend, to establish title to the accreted land. Cherry signed a contingency fee agreement under which Rolleston would be entitled to one-third of any accreted land to which title was established. Cherry executed a quitclaim deed to Rolleston of a one-third undivided interest in such land, although Rolleston did not immediately record such deed.

Rolleston filed suit on behalf of Cherry against the Hopkins family, rival claimants to the accreted land, seeking to establish title to or a recreational easement over such land. The trial court granted summary judgment in favor of Hopkins, but the Supreme Court reversed on April 16, 1985, in Cherry v. Hopkins, 254 Ga. 260, 328 S.E.2d 702 (1985), sending the case to trial.

In July 1984, while the Hopkins litigation was pending, Cherry entered into an agreement with Tom Davis for the sale of her interest in Camellia Cottage. The agreement also gave Davis a separate option to purchase the accreted land if the Hopkins litigation were successful. This agreement was drafted by Rolleston. As subsequently revised, the agreement provided that closing on the sale of Camellia Cottage would take place on May 31, 1985, or 30 days after entry of a final order in the Hopkins litigation, whichever occurred first.

After the purchase contract was executed, Davis learned that Rolleston had taken a quitclaim deed to the accreted land. In a letter to Rolleston, Davis expressed his concern that the deeds could prevent Cherry from being able to convey good title to Camellia Cottage by destroying any claim to a recreational easement over the accreted land. This letter also alerted Rolleston to the possibility that the sale of Camellia Cottage would extinguish his client's claim to the recreational easement over the accreted land, which interest Rolleston was seeking to establish in the Hopkins litigation.

At the trial of Cherry v. Hopkins, May 26-30, 1986, Rolleston failed to raise the issue of a recreational easement, and the sole issue litigated was title to the land. The jury returned a verdict in favor of Hopkins on May 30, 1986, which was subsequently affirmed by the Supreme Court.

The closing on the sale of Camellia Cottage was scheduled for May 31, 1985, the day after the trial of Cherry v. Hopkins. Rolleston was advised that Davis was assigning his rights under the purchase contract to parties who would consummate the closing. However, Rolleston told Cherry that she need not attend the closing because the purchaser was unlikely to have the purchase price. Rolleston appeared at the closing without Cherry and without a power of attorney to execute the necessary closing documents.

At the closing, Rolleston was informed that Davis' assignee, Coast House, Ltd., was prepared to close. However, Rolleston presented Davis with a letter, dated June 1, 1985, stating that Davis had breached the purchase contract by not timely closing, and that the entire contract, including the option for the accreted land, was now void. Rolleston then left the closing. Coast House's representatives attempted to consummate the closing by traveling to Cherry's house with the purchase money, but Cherry was not there. On the morning after the failed closing, Rolleston recorded his quitclaim deed to the accreted land.

In December 1985, Coast House sued Cherry for breach of contract, and also asserted a claim against Rolleston for tortious interference with contractual relations. After Cherry and Rolleston filed counterclaims, Coast House added a claim for abusive litigation against the two parties. On September 14, 1987, the trial court severed the trials of Cherry and Rolleston, and the claims against Cherry were to be tried first. Shortly before trial, on May 15, 1990, Coast House dismissed the action without prejudice and refiled against Cherry, without naming Rolleston in this renewal action. Cherry had died on May 18, 1989. On February 27, 1991, the jury returned a verdict against her estate on both the breach of contract claim and the abusive litigation claim.

The estate subsequently settled with Coast House, agreeing in part that Coast House would receive a portion of the proceeds of an action to be filed against Rolleston. On February 20, 1992, the estate brought the present action against Rolleston for professional negligence, fraud, breach of fiduciary duty, and contribution and indemnity, and Rolleston appeals from the March 22, 1995 jury award of $5,200,000 to the estate.

Case No. A97A0051

1. (a) In his first enumeration of error, Rolleston contends that the trial court erred in failing to charge the jury that a two-year statute of limitation applies to torts, a four-year statute of limitation applies to contracts, and a two-year statute of limitation applies to claims of breach of fiduciary duty. However the brief, prepared by Rolleston, does not address these enumerations, but instead argues that the relevant statutes of limitation had expired on plaintiff's claims. Accordingly, these enumerations are deemed abandoned. Court of Appeals Rule 27(c)(2). As "an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration," this Court will not consider Rolleston's arguments that the statutes of limitation had expired. (Citation and punctuation omitted.) Crotty v. Crotty, 219 Ga.App. 408, 410(3), 465 S.E.2d 517 (1995). In any event the requested charge was not a correct statement of the law, and it would have been error to have given it as requested.

(b) Rolleston's first enumeration also contends that the court erred by allowing testimony regarding Rolleston's fiduciary duties after he resigned his representation of Cherry in October 1988. However, as Rolleston does not address this assertion in his brief, cite to any testimony alleged to have been erroneously admitted, or show that he preserved this issue for appeal by objecting at trial, this assertion will not be considered. Court of Appeals Rule 27(c)(2), (3); Langton v. Dept. of Corrections, 220 Ga.App. 445, 446(2), 469 S.E.2d 509 (1996) (court will not cull the record on behalf of a party). Furthermore, even if this assertion had been supported in the brief, it would not be considered by this Court, as the first enumeration contains more than one assertion of error in violation of OCGA § 5-6-40. See West v. Nodvin, 196 Ga.App. 825, 830(4)(c), 397 S.E.2d 567 (1990).

Throughout his brief, which was submitted by Rolleston and not by his attorney, Rolleston fails to provide record citations to evidence necessary to evaluate his arguments. It should be noted that the record in this case comprises 20 volumes and more than 6,500 pages. The trial transcript alone consists of over 2,600 pages, covering the testimony of 21 witnesses, arguments of counsel, and the court's charges. The trial exhibits consist of over 1,000 pages. We have repeatedly held that "[i]t is not the function of this court to cull the record on behalf of a party." (Citations and punctuation omitted.) Langton, supra at 446(2), 469 S.E.2d 509. This rule is particularly apt in this case. While this Court is authorized under its rules to dismiss any appeal for failure to cite to the record, we will exercise our discretion and resolve this appeal on its merits.

2. (a) In addition to claims of malpractice, breach of fiduciary duty, and fraud, the estate asserted a claim against Rolleston for contribution and indemnity, seeking contribution for the damages it sustained as the result of an adverse jury verdict in the Coast House lawsuit. Coast House sued Cherry for failing to close under the real estate sales contract drafted by Rolleston, and also asserted a claim against Rolleston for tortious interference with contract in connection with the failed closing. After Cherry and Rolleston filed counterclaims, Coast House added a claim for abusive litigation against the two parties. The trial court severed the trials of Cherry and Rolleston, and the claims against Cherry were tried first. The jury returned a verdict against Cherry's estate on both the breach of contract claim and the abusive litigation claim.

On appeal, Rolleston contends the court erred in charging the jury on contribution and indemnity, because such charge was not warranted by the evidence. ¹ In reviewing a jury instruction, this Court must determine if there was any evidence presented at trial to support it. Valdez v. Power Indus. Consultants, 215 Ga.App. 444, 451 S.E.2d 87 (1994). It is the duty of the trial court to instruct the jury on an issue of law if there is evidence to support the instruction. Feathers v. Wilson, 157 Ga.App. 753, 278 S.E.2d 434 (1981).

In essence, Rolleston asserts that he cannot be considered a joint tortfeasor with Cherry, and so cannot be liable for...