Defendant James A. Ehlers appeals from a directed verdict by the trial court in favor of the plaintiff, the law firm of Schwall and Heuett. Ehlers and his wife sought a divorce. Ehlers’ father, a lawyer, filed as intervenor alleging he should be granted a lien on the family residence as he had advanced monies for the purchase of the home. Both parties made allegations concerning the conduct of the other party. Also at issue was child support, alimony and division of marital property. Ehlers first employed one attorney and then hired the firm of Schwall and Heuett. He made payment of a retainer fee of $2,500. *549 The divorce proceedings moved slowly from December 1980 to April 1982, when Ehlers received a notice from Schwall and Heuett asking for $1,360 as attorney fees. Ehlers paid the amount requested but voiced his displeasure with the representation he was receiving. Plaintiff had billed Ehlers $375 in February of 1982 which had not been paid. Thereafter, in May of 1982, Ehlers was billed for $2,500 and $1,075, and in August was charged $105. Each of these bills itemized the basis for the charges. The unpaid bills totalled $4,055 and he was requested to pay that amount. He refused, discharged his counsel, and this action followed.
Ehlers answered pro se and “amended” to add an unspecified count denying that any amount was due, and in the following paragraphs, collectively, gave a history of the litigation and his dissatisfaction with “the course of events” and was “alarmed at the impending financial disaster looming ahead.” He alleged that his counsel did not challenge the amount of attorney fees he was ordered to pay his wife’s counsel, and did not raise any issue of the financial circumstances of the parties. He charged that “the failure on the part of the plaintiff in this case was inexcusable and exasperating. . . .” He asked that plaintiff “be found negligent in their representation of their client” and that monies previously paid to the plaintiff be returned and that he be awarded actual and punitive damages.
At trial, Ehlers acted as his attorney and the court permitted his father, an attorney who advised the court that he had “retired,” to assist him. Ehlers attempted to qualify his father, who was not then in good standing with the State Bar, as an expert witness. The senior Ehlers stated that he had closed his office in 1960 and was “inactive” but “not retired.” However, an affidavit of the State Bar showed the witness had failed to pay “license fees from 1972 to date.” Presumably this included “inactive” fees. The court refused to qualify the senior Ehlers as an expert. This ruling is not contested on appeal.
The defendant testified and expressed the basis for his dissatisfaction with his representation by the plaintiff and what he thought his attorney should have done. He stated that he discharged plaintiff because he “didn’t feel secure. I felt like something was amiss. I never got really a comfortable feeling with Mr. Schwall’s representation. ... I wasn’t happy with Mr. Schwall. ... I don’t feel like I was adequately represented. . . .”
At the conclusion of all the evidence, plaintiff moved for a directed verdict on the main action and moved to strike defendant’s counterclaim. The court granted both motions, stating that he found “no evidence of negligence to sustain [defendant’s] allegation that [plaintiff] was negligent ... no evidence of malpractice.” The court denied an amended motion for new trial and defendant brings this appeal. Held:
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We find it extremely difficult to determine what is enumerated as error. Counsel has ignored our Rules and has not filed an enumeration of errors within his brief, but has referred us to the record. See Rule 15 (a) (2), Rules of the Court of Appeals. The record itself does not contain a formal Enumeration of Errors but counsel has written across his “Amendment to Motion for New Trial” the words: “Enumeration of Errors.” “Incorporation of the enumerations of error in the brief fails to comply with this rule and presents nothing for review by this court.”
Russell v. State,
It is basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal
(Hibbert v. State,
Defendant presented 16 separate items to the trial court which
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referred principally to the conduct of the trial judge and opposing counsel. Others alleged error in: (1) the failure of the trial court to appoint the defendant counsel, (2) refusing defendant permission to question a lawyer as to how much his former wife paid him, (3) refusal to admit in evidence his sworn affidavit, and (4) refusal of his tender in evidence of Georgia law concerning attorney fees. First and foremost, we note the continual failure of the defendant to object during trial to those instances now enumerated as error. Generally, where there is no objection at trial we will not consider such enumeration to require reversal unless it appears that gross injustice will result which is attributable to the alleged errors.
Green v. Weaver,
As to the conduct of the court and counsel, the only harm that can accrue to a party by expression of an opinion by the court or counsel would be its impact upon the jury. In the instant case, the trial court directed a verdict and such alleged impropriety would be harmless.
Kinney v. Youngblood,
On appeal, defendant has not raised the issue of the failure of the trial court to appoint him counsel. This issue has been abandoned. The question of how much defendant’s wife had paid her lawyer had no relevance to any issue before the trial court. The defendant, appearing pro se, testified as to his knowledge of the issues before the court. His sworn affidavit, containing the same information, was not admissible as evidence. See generally Green, Ga. Law of Evid., 289, § 115; 504, § 226. The trial court’s refusal to admit in evidence Georgia law on the issue of attorney fees is harmless error at most where the judge directs a verdict.
A review of appellant’s brief shows it is more in the nature of argument as to the sufficiency or insufficiency of the evidence to sustain the judgment. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50 (a). Hence, a directed verdict would be proper only where there is no conflict as to a material fact and the verdict is demanded for the movant.
Daniel v. Weeks,
Turning to the issue of the allegation of negligence made by the defendant, it is presumed in a legal malpractice action that a lawyer’s services are performed in an ordinarily skillful manner. This presumption remains with the attorney until rebutted by expert legal testimony; otherwise, the grant of a summary judgment in favor of the attorney is proper.
Hughes v. Malone,
Judgment affirmed.