Willett v. Stookey

• Decision Date: 21 June 2002
• Docket Number: No. A02A0814., No. A02A0817
• Parties: WILLETT v. Russell M. STOOKEY, P.C. et al. (Two Cases).
• Court: Georgia Court of Appeals

568 S.E.2d 520

256 Ga. App. 403

WILLETT v. Russell M. STOOKEY, P.C. et al. (Two Cases).

Nos. A02A0817, A02A0814.

Court of Appeals of Georgia.

June 21, 2002.

Reconsideration Denied July 9, 2002.

Certiorari Denied September 30, 2002.

Donald E. Dyches, Jr., Savannah, for appellant.

Love, Willingham, Peters, Gilleland & Monyak, Michael J. Hannan III, Atlanta, Oliver, Maner & Gray, Inman G. Hodges, Ellis, Painter, Ratterree & Bart, Ryburn C. Ratterree, Tracy A. O'Connell, Savannah, for appellees. POPE, Presiding Judge.

Harold Willett, Jr. sued Russell M. Stookey, P.C. and Russell M. Stookey for legal malpractice, fraud, breach of fiduciary duty, and intentional misconduct in connection with Stookey's representation of Willett in the sale of the stock of Willett Construction Company, Inc. to Ralph Neely. Ronald M. Cohen and his law firm, Hunter, MacLean, Exley & Dunn, P.C., were also named as defendants in the suit. The trial court granted Stookey's motion for summary judgment on all counts other than legal malpractice. The legal malpractice claim was tried before a jury and resulted in a verdict for Stookey and Cohen. In Case No. A02A1214, Willett claims the trial court erred in making a number of evidentiary rulings during the trial of his legal malpractice claim. In Case No. A02A0817, Willett claims the trial court erred in granting Stookey's motion for summary judgment on Willett's claims for punitive damages in connection with his legal malpractice claim, and on his claims for fraud, breach of fiduciary duty, and intentional misconduct.

Attorneys Stookey and Cohen represented Willett in the sale of the stock of Willett Construction Company to Neely, a Willett Construction employee. At the time of the sale, Willett had been convicted of child molestation and was in jail. Willett and Neely executed a purchase agreement for the stock of Willett Construction, and Neely gave Willett a promissory note as payment for the stock. Willett Construction guaranteed payment of the note. In a transaction which violated the terms of the purchase agreement, Neely subsequently obtained an $80,150 personal loan secured by real estate owned by Willett Construction. Because of Neely's default under the purchase agreement, Willett took back his stock; Willett was then forced to satisfy Neely's personal loan to prevent Neely's creditor from foreclosing on the Willett Construction property.

Willett claimed that Stookey and Cohen were guilty of legal malpractice because the stock sale was not properly structured. More specifically, he complained that lawyers of ordinary skill and capacity who undertook to represent clients in similar transactions would have caused the real and personal assets of Willett Construction to be pledged to the payment of its guaranty and would have secured the pledge by executing and filing deeds to secure debt and Uniform Commercial Code financing statements in the appropriate public records. Willett maintains that the failure to establish and record a security interest in the assets of Willett Construction harmed him because it allowed Neely to pledge real estate owned by Willett Construction as security for Neely's personal loan.

Case No. A02A1214

1. Willett claims that the trial court erred by admitting the bill of indictment against him for child molestation. Willett admits that his conviction for the crime was admissible for purposes of impeachment, but urges that the details of the crime could not be introduced.

A witness may be impeached by introducing proof of conviction of a crime involving moral turpitude. Vincent v. State, 264 Ga. 234, 442 S.E.2d 748 (1994). In this case, the defense successfully impeached Willett by tendering certified copies of his previous convictions for two counts of aggravated sodomy, two counts of child molestation, and two counts of aggravated sexual battery. But the defense went further, introducing the corresponding indictment that contained the highly prejudicial specific details of the crimes.

Inasmuch as the witness had already been impeached, and [he] did not attempt to rehabilitate [his] character by explaining the circumstances of [his] convictions (see Belvin v. Houston Fertilizer &c. Co., 169 Ga.App. 100, 101(2), 311 S.E.2d 526 (1983)), the facts surrounding the ... conviction[s] should have been excluded. [Cits.] It follows that the trial court erred in permitting the [party] to "bolster" its impeachment evidence.

Vincent, 264 Ga. at 235, 442 S.E.2d 748.

The error was harmful. The details found in the indictment are extremely prejudicial; the defense had already accomplished its purpose of impeaching Willett; and the details of the crimes committed by Willett are not "merely cumulative" of the fact that he had been convicted of the crimes. The details found in the indictment are graphic, specific, and wholly irrelevant to a legal malpractice claim. The trial court's conclusion that the indictment was "part and parcel" of the conviction was an abuse of discretion.

Nor does it matter that Willett admitted in his case-in-chief that he had been convicted of child molestation and the other offenses. He did not testify about the details of the incidents. We do not address the question of whether the conviction itself should have been admitted given Willett's earlier repeated admission to the convictions on direct, and again on cross-examination. 2. Willett next claims that the trial court erred by admitting, over his objection, a copy of the complaint and answer from a civil lawsuit arising out of the same incident for which he was convicted. In particular, Willett notes that these documents revealed the highly prejudicial fact that he was convicted of sexually abusing a young boy.

Prior to trial, the court had ruled in limine that Stookey could present "evidence regarding the existence of a civil lawsuit growing out of Plaintiff's criminal conviction to the extent that it is relevant to the Defendants' claim that Plaintiff was attempting to hide assets from a potential judgment creditor." At trial, Stookey's lawyer asked Willett, "And you were sued by the father of one of the children you had molested ..., isn't that true?" He then sought to admit the complaint and answer to that suit both to show Willett's financial motivation and to show that Willett had lied in his answer by denying that he was a personal friend and business associate of the father and a trusted person for the child. The court allowed introduction of a redacted copy of the complaint and answer for the limited purpose described in the earlier order in limine but refused to allow questioning about the details of the underlying incidents.

When the questioning resumed, Stookey's lawyer, in an obvious violation of the judge's order, asked, "You knew that that boy's daddy wanted some money out of you. True?" Willett objected but did not move for a mistrial. The court instructed Stookey's lawyer to refer to the child only as "the victim," but noted that because the indictment would probably be introduced, the jury was going to learn the gender of the child eventually. Given our ruling in Division 1, however, any reference to the gender of the child should be excluded from the retrial.

Even when character evidence is admissible, the trial court must weigh the relevance against the harm. As we have stated,

The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct. However, such testimony may be admitted if relevant to an issue in the case and if the evidence does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise.

(Citations and punctuation omitted.) Troncalli v. Jones, 237 Ga.App. 10, 16(4), 514 S.E.2d 478 (1999). Reviewing the trial court's decision to allow the complaint and answer without fully redacting all details of the underlying incident, we again find that the court abused its discretion. Although redacted, the complaint still reveals the age of the child and other facts unrelated to the defense that Willett had a financial motivation. For the purposes of retrial, we again caution that only the bare facts necessary to show Willett's possible financial motivation should be admitted given the extremely prejudicial nature of the lawsuit against Willett.

3. Willett claims the trial court erred in refusing to admit into evidence certain audiotape recordings of telephone conversations between Stookey and Willett. Citing Russell v. Superior K-9 Svc., 242 Ga.App. 896, 531 S.E.2d 770 (2000), the trial court refused to allow introduction of the tapes or any use of the corresponding transcripts, saying,

[T]he fact that Mr. Stookey may have said that he taped on occasions telephone conversations between himself and his former client does not per se make the tapes of those conversations admissible. There's certain threshold showings that you have to make before that witness can—that evidence can be received. What you've outlined to me is not sufficient to meet the requirements of the case law and the statutes.

"[ T]he admission of evidence is generally committed to the sound discretion of the trial court[ ] whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion." (Punctuation and footnote omitted.) Cooper Tire &c. Co. v. Crosby, 273 Ga. 454, 456-457(2), 543 S.E.2d 21 (2001).

Under Georgia law, admission of audiotape is controlled by "the 7-part test referred to in Steve M. Solomon, Inc. v. Edgar, 92 Ga.App. 207, 211, 88 S.E.2d 167 (1955), adopted with approval by [the Supreme Court] in Estes v. State, 232 Ga. 703, 710, 208 S.E.2d 806 (1974), and relaxed a bit in Harris v. State, 237 Ga. 718, 724, 230 S.E.2d 1 (1976)." Saunders v. Padovani, 258 Ga. 866, 867, 375 S.E.2d 853 ...