Tillett v. Patel, A89A0611

• Decision Date: 21 June 1989
• Docket Number: No. A89A0611,A89A0611
• Citation: 192 Ga.App. 60,383 S.E.2d 622
• Parties: TILLETT et al. v. PATEL et al.
• Court: Georgia Court of Appeals

Page 622

383 S.E.2d 622

192 Ga.App. 60

TILLETT et al. v. PATEL et al.

No. A89A0611.

Court of Appeals of Georgia.

June 21, 1989.

Douglas W. Alexander, Brunswick, for appellants.

David T. Whitworth, Brunswick, A. Ed Lane, Decatur, Smith & Harrington, Will Ed Smith, Eastman, Billy W. Walker, McRae, W. McMillan Walker, Eastman, for appellees.

BENHAM, Judge.

Appellant Tillett's son drowned in the swimming pool of a motel owned by appellees. Acting individually and as next friend of the other appellant, her granddaughter, the decedent's child, Ms. Tillett brought suit against appellees. Both appellants are residents of Virginia, but Ms. Tillett hired Georgia counsel to prosecute the suit since appellees are Georgia residents and the death occurred in Georgia. After a settlement was reached, the Georgia attorneys hired by Ms. Tillett moved to have the amount of recovery established by the settlement paid into the court so that their attorney fees could be paid. Virginia counsel for Ms. Tillett responded to the motion, seeking to avoid payment of the attorney fees agreed to by Ms. Tillett in the contract by which she initially retained Georgia counsel. Following a hearing on the motion, a hearing not attended by Ms. Tillett's Virginia counsel although notice was given, the trial court approved the settlement, entered judgment for the minor plaintiff, directed payment of the judgment into the registry of the court, and awarded appellants' Georgia counsel attorney fees in the amount of one-half the judgment plus one-half of counsel's expenses. This appeal is from that order.

1. In their first enumeration of error, appellants contend that the attorney fee contract was void because Ms. Tillett had not been appointed guardian of her granddaughter and, therefore, had no authority to bind the minor plaintiff. We disagree.

"The authority of one who acts as next friend for a minor in a judicial proceeding is derived from the permission of the court to act in that capacity. No particular person is required to act, nor is it necessary that the person so acting be appointed by formal order. The court, in allowing the case to proceed, is presumed to have approved the appearance of the person acting as next friend." Mize v. Harber, 189 Ga. 737(7), 8 S.E.2d 1 (1940).

"A next friend cannot unreasonably surrender a minor's substantial rights. [Cit.] But '[t]he next friend must not be denied such necessary incidental powers as will facilitate the fair adjudication of the infant's rights. This is necessary to their proper vindication, both in prosecution and defense....' [Cit.]" Phillips v. Meadow Garden Hosp., 139 Ga.App. 541(2), 228 S.E.2d 714 (1976). Although the Phillips court was dealing with a compromise to accept a verdict by ten of twelve jurors, the principle applies equally to the situation in this case. Without authority to engage attorneys, one acting as next friend would be unable to proceed with a prosecution of the minor's rights.

The cases appellants cite for limitations on the rights of next friends are distinguishable. In Thomas v. Holt, 209 Ga. 133, 70 S.E.2d 595 (1952), the court was dealing with court-ordered child support, and held that the custodial parent could not enter into a contingency fee contract for the recovery of arrearages. The holding in that case was dependent on the special nature of child support, which is not involved in the present case.

In both Betts v. Hancock, 27 Ga.App. 63, 107 S.E. 377 (...