Tingle v. Arnold, Cate and Allen

• Decision Date: 04 April 1973
• Docket Number: No. 2,No. 47763,47763,2
• Citation: 199 S.E.2d 260,129 Ga. App. 134
• Parties: Ben F. TINGLE, III v. ARNOLD, CATE & ALLEN et al
• Court: Georgia Court of Appeals

Page 260

199 S.E.2d 260

129 Ga.App. 134

Ben F. TINGLE, III v.ARNOLD, CATE & ALLEN et al.

No. 47763.

Court of Appeals of Georgia, Division No. 2.

April 4, 1973.

Rehearing Denied May 24, 1973.

William G. McRae, Atlanta, for appellant.

Gambrell, Russell, Killorin, Wade & Forbes, David A. Handley, Robert B. Wedge, Atlanta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

The instant case presents another phase in the multi-faceted litigation involving Miss Mary Alice Tingle and members of her family.Other appellate decisions are reported in Tingle v. Tingle, 227 Ga. 97, 179 S.E.2d 51;Tingle v. Harvill, 228 Ga. 332, 185 S.E.2d 539;Tingle v. Harvill, 125 Ga.App. 312, 187 S.E.2d 536;andTingle v. Harvill, 230 Ga. 70, 195 S.E.2d 654.Of these four citations our references herein are to the second, that being Tingle v. Harvill, 228 Ga. 332, 185 S.E.2d 539, supra.This limitation is due to the instant suit being based on the activities of the law firm in Fulton Superior Court Civil ActionNo. B-45815 which was begun in 1969 and was terminated by the judgment of the Supreme Court in 1971 affirming a judgment for plaintiff in that case and against Mr. Tingle.

The instant suit was filed by Ben F. Tingle, III, also known as Ben F. Tingle, Jr., who was a party litigant in the other four appeals.Here he sued the law firm of Arnold, Cate & Allen, alleging the attorneys in conspiracy with other unnamed persons solicited Miss Tingle 'to present and urge, as attorneys at law, the enforcement of a demand on behalf of Mary Alice Tingle against plaintiff.'(R. 2).It is averred they knew then and subsequently that 'Mary Alice Tingle was a person who was mentally incompetent, unable to understand what said attorneys were proposing to do on her behalf.'(R. 2).The ten page complaint recites activities alleged to have been undertaken by the law firm revolving around their having instituted an equity suit in the Fulton Superior Court against Mr. Tingle in behalf of his aunt.This suit sought to set aside certain deeds made by the aunt to her nephew.The gravamen of the petition was an allegation that these conveyances had been obtained by 'fraud, duress, mistake, misrepresentation, undue influence and coercion' as well as there having been a total failure of consideration.228 Ga. 334, 185 S.E.2d 541.

It is further alleged the law firm partners conspired with others to cause Mrs. Gladys G. Harvill to be appointed as guardian for Miss Tingle after adjudication of the aunt's incompetency and that the guardian was substituted as partyplaintiff in the pending Fulton County equity suit.The complaint also recites Miss Tingle had regained her mental health on or about December 15, 1969, and despite her desire to terminate the litigation that it was continued over her objections.Such representation is averred further to have been continued after March 9, 1971, when Miss Tingle was declared competent.The complaint contends the defendant lawyers to have breached 'their duties as attorneys at law and as officers of the courts of this state, to refrain from soliciting and instituting, for personal gain, litigation against plaintiff on behalf of an incompetent person, all in violation of § 9-502,§ 9-601(5), and§ 9-9901 of the Code of Georgiaas amended.'(R. 9).Compensatory and exemplary damages are sought.

Denials of alleged wrongful acts are contained in the answer filed on behalf of the defendant law firm along with a recital that the equity action ended in a verdict favorable to their client.

Both plaintiff and defendants filed motions for summary judgment.That filed by the plaintiff is not in contention here, the order overruling that motion reciting 'that counsel for plaintiff recognized an issue of fact as to plaintiff's alleged claims and that summary judgment should not be granted to plaintiff.'(R. 977.)The motion for summary judgment filed in behalf of the defendant law firm contains a total of 638 pages to which the plaintiff answered with a 32 page response.Both summary judgments include all pleadings, all depositions, a true copy of the complete and entire proceedings in the Fulton County Superior Court, and a transcript of evidence in the 1971 three- day trial of that superior court action.Plaintiff's response also includes a lengthy affidavit of Miss Tingle with her letters as exhibits.In addition to affidavits of two of the attorneys named as defendants their motion included as an exhibit the full opinion of the Supreme Court in Tingle v. Harvill, 228 Ga. 332, 185 S.E.2d 539, supra, wherein the verdict obtained by defendants for their client in the Fulton Superior Court action was affirmed.

This motion for summary judgment in behalf of the defendants was sustained.The instant appeal by Mr. Tingle is from that ruling.

1.Appellant limited his initial brief to the contention that there were genuine issues of material facts which would of course have precluded the rendition of a summary judgment for defendants.Code Ann. § 110-1203.See further in this connection: Montgomery v. Pickle, 108 Ga.App. 272(2), 132 S.E.2d 818;Code Ann. § 81A-156(c);Watkins v. Nationwide &c. Ins. Co., 113 Ga.App. 801, 149 S.E.2d 749.Appellant points out the conflicts in the supporting affidavits dealing with Mary Alice Tingle having had sufficient mental capacity to contract between April 28, 1969 and May 8, 1969, and to credibility of the defendants' witnesses upon this issue and also whether or not there was a conspiracy to violate the quoted Code sections and whether or not they were violated by defendants.The record does indeed show genuine issue of material facts as to those matters but our decision to affirm the trial court is not based upon those factors.Instead we have before usa case illustrative of the purpose of the Summary Judgment Act, namely elimination of the necessity of a trial by jury where the evidence introduced by the movant has pierced the pleadings and discloses the absence of a right of recovery.Crutcher v. Crawford Land Co., Inc., 220 Ga. 298, 138 S.E.2d 580;Scales v. Peevy, 103 Ga.App. 42, 118 S.E.2d 193;andBrown v. J. C. Penney Co., 123 Ga.App. 233, 180 S.E.2d 364.

2.Were the attorneys authorized to represent Miss Tingle and subsequently her guardian who was substituted to continue the litigation?'. . . (P)rima facie, attorneys shall be held authorized to properly represent any cause they may appear in.'Code, § 9-604.While this presumption is rebuttable by the party for whom the attorney purports to act (Jackson v. Jackson, 199 Ga. 716, 719, 35 S.E.2d 258), our Supreme Court has established precedents as to the manner and time in which the party sued may question the right of the lawyer to act.'The decisions of the Supreme Court shall bind the Court of Appeals as precedents.'Code Ann. § 2-3708,Const. art. VI, § II, par. 8.This presumption can only be rebutted in the manner provided in the statute.Lester v. McIntosh, 101 Ga. 675(2), 29 S.E. 7;Planters & Peoples Mutual &c of Ga. v. DeLoach, 113 Ga. 802, 39 S.E. 466;Workingmen's Union Asso. v. Reynolds, 135 Ga. 5, 7, 68 S.E. 697.As to time, it is too late after judgment for the defendant to question the authority of attorneys who appeared on behalf of the plaintiff.Felker v. Johnson, 189 Ga. 797(2), 7 S.E.2d 668.In this latter case (p. 802, 7 S.E.2d p. 671)the Supreme Court says 'We find no case in this State wherein a defendant has, after judgment, questioned the authority of the attorneys who appeared in the trial on behalf of the plaintiff.It seems clear, however, that this is an effort to set up a matter which should have been inquired into at the trial.'SeeHarrell v. Williams, 14 Ga.App. 171(2), 80 S.E. 534, where our court ruled that 'the presumption that the attorneys had authority to represent the clients for whom they appeared is conclusive, in th absence of direct attack upon their authority made in a proceeding in which they are parties and have an opportunity to be heard.'

3.We next deal with the question of the alleged solicitation in violation of Code, §§ 9-502,9-601(5)and9-9901.Section 9-502 provides for disbarment of an attorney at law who solicits legal employment.Section 9-9901 makes it a crime for an attorney at law to solicit business.As the instant action is neither for disbarment nor a prosecution for barratry we do not regard those Code sections as relevant to the instant suit.Neither provision was established by the legislature for the purpose of providing a basis for a suit.In Bush v. Morris, 123 Ga.App. 497, 181 S.E.2d 503, this court dealt with a somewhat analogous situation with a holding that the legislative enactment forbidding district attorneys to engage in private practice was not intended to create a right to a civil action by the losing defendant against the district attorney nor against a trial judge who had knowledge of the district attorney's disqualification.

Similarly, it is clear the legislature did not intend to create a private cause of action by the statute codified as Code, § 9-601 wherein are enumerated the special duties of attorneys at law.A reading of its provisions designating six special duties for the conduct of barristers shows an intention to provide ethical guidelines for attorneys in their capacity as officers of the court, violation of which would be within the inherent power of the courts to handle through contempt proceedings.The first duty is 'To maintain the respect due to courts of justice and judicial officers' with the remaining directives being consonant therewith concluding with the mandate compatible with our traditional canons of ethics: 'Never to reject, for a consideration personal to themselves, the cause of the defenseless or oppressed.'It is obvious breach of these directives could not be the basis for a civil suit against the legal advocate.

4.Our views in sustaining the trial court's judgment in this case are...