751 S.E.2d 463 | Ga. Ct. App. | 2013
Settendown Public Utility, LLC, Ken Curren, Camella Curren, and Waterscape Services, LLC (collectively “Settendown”), and their attorney, George E. Butler II, have filed separate direct appeals from an order of the trial court disqualifying Butler from representing Settendown in a lawsuit filed against it by Waterscape Utility, LLC (“Waterscape”).
As an initial matter, the Georgia Code limits our jurisdiction to consider direct appeals to specific categories of judgments set forth in subsections (1) through (12) of OCGA § 5-6-34 (a). All other judgments of a trial court are considered interlocutory and are therefore subject to the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b).
Our interlocutory appeal statute is not a run-of-the-mill procedural provision .... It is a jurisdictional law by which the General Assembly has limited the authority of Georgia’s appellate courts to hear certain cases. “When the order appealed from is an interlocutory order, the appellate court does not acquire jurisdiction unless the procedure of OCGA § 5-6-34 (b) for interlocutory appeal is followed.”
(Citation and punctuation omitted; emphasis in original.) American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 644-645 (732 SE2d 746) (2012) (Nahmias, J., concurring specially), quoting Cherry, 257 Ga. at 404 (2).
Settendown and Butler, however, argue that at least one Supreme Court of Georgia case, decided the same term as Cherry, supports the conclusion that an order disqualifying counsel is directly appealable. In Stevens, 257 Ga. 645, a unanimous Supreme Court of Georgia refused to address the appeal of an order disqualifying counsel, which was brought as part of an appeal challenging the award of sanctions and attorney fees against the defendants. One of the sanctions imposed by the trial court was the disqualification of the defendants’ attorney who, together with his clients, had violated a court order to refrain from contacting potential class members. The Supreme Court of Georgia found that the appeals of the disqualification order brought by the attorney and his clients were not timely because “[t]he disqualification was to take place instanter and was thus immediately appealable. The fact that the amount of attorney fees was not set until a later date does not affect the status of the disqualification as a final, appealable order.” Stevens, 257 Ga. at 647 (1).
As we explained in Lassiter Properties, however, we decline to read this statement, which was unsupported by any citation to legal authority or any legal analysis and which failed to acknowledge the court’s earlier decision in Cherry, as providing us with a basis for revisiting the question of whether disqualification orders are directly appealable. Rather, we view this issue as being “controlled by Cherry v. Coast House, Ltd., . . . which appears to be the latest definitive statement by the Supreme Court [of Georgia] on the issue.” Lassiter Properties, 230 Ga. App. at 218.
The United States Supreme Court has long recognized the collateral order doctrine as an exception to the final judgment rule,
In determining whether a matter is subject to effective appellate review, we ask whether the relief sought would be barred by the entry of final judgment in the trial court. Murphy, 322 Ga. App. at 832 (holding that denials of a motion to recuse the trial judge are not collateral orders “because the parties’ interests can be protected adequately in an appeal from a final judgment”). The fact that a ruling “may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final [trial] court judgment” is not sufficient to satisfy the requirement that an order be effectively unreviewable. Digital Equip. Corp. v. Desktop Direct, 511 U. S. 863, 871-872 (II) (D) (114 SCt 1992, 128 LE2d 842) (1994). See also Richardson-Merrell v. Koller, 472 U. S. 424, 430-431 (II) (105 SCt 2757, 86 LE2d 340) (1985) (“[t]he collateral order doctrine is a narrow exception whose reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal”) (citations and punctuation omitted; emphasis supplied). Where effective relief would be available on appeal from a final judgment, therefore, Georgia’s appellate courts have “ ‘routinely require [d] litigants to wait until after final judgment to vindicate’ ” even those rights that are “ ‘central to our adversarial system.’ ” Expedia v. City of Columbus, 305 Ga. App. 450, 453 (1) (699 SE2d 600) (2010) (holding that orders adverse to claims of privilege, including the attorney-client privilege, are subject to effective appellate review and are therefore not collateral orders), quoting Mohawk Indus. v. Carpenter, 558 U. S. 100, 108-109(II) (B) (130 SCt 599, 175 LE2d 458) (2009). See also Gen. Motors Corp. v. Hammock, 255 Ga. App. 131, 131-132 (564 SE2d 536) (2002) (orders compelling discovery are not collateral orders).
Further, in Richardson-Merrell, the United States Supreme Court acknowledged “that an order disqualifying counsel may impose significant hardship on litigants,” and noted that, “[particularly where the grounds for disqualification are troubling, this hardship may tempt courts of appeals to assert jurisdiction pursuant to” the
It would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon the deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appealability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by Congress. [Accordingly], we decline to transform the limited exception carved out in Cohen into a license for broad disregard of the [final judgment] rule---We hold that orders disqualifying counsel in civil cases, like orders disqualifying counsel in criminal cases and orders denying a motion to disqualify in civil cases, are not collateral orders subject to appeal as “final judgments” [pursuant to the collateral order doctrine].
(Citations and punctuation omitted.) Id.
We need not succumb to such temptation in this case. Even in the absence of an interlocutory appeal, relief from an erroneous disqualification order is available on appeal from a final judgment. Specifically, such an error may serve as the basis for a new trial motion. See Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 378 (II) (101 SCt 669, 66 LE2d 571) (1981) (a trial court’s erroneous ruling on a motion to disqualify counsel can be remedied on appeal by “vacating] the judgment appealed from and ordering] a new trial”); Fidelity Nat. Title Ins. Co. of New York v. Intercounty Nat. Title Ins. Co., 310 F3d 537, 539 (7th Cir. 2002) (“incorrect decisions about disqualification may justify reversal at the end of the case”). See also Murphy, 322 Ga. App. at 830 (noting that the remedy for the erroneous denial of a motion to recuse the trial judge is the grant of a new trial); Expedia, 305 Ga. App. at 453 (1) (an order erroneously requiring the improper disclosure of privileged material may be remedied by the appellate courts “by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence”) (citation and punctuation omitted). Accordingly, like the majority of courts to address this issue, including the United States Supreme Court, we hold that because orders granting or denying a motion to disqualify counsel are fully reviewable on appeal from a
Because the disqualification order at issue is interlocutory, and not collateral, it is not within “this Court’s discretion to consider the disqualification of [Butler] by direct appeal at this time.” Lassiter Properties, 230 Ga. App. at 218. The appeals in Case Nos. A13A0830 and A13A0831 are therefore dismissed as premature. Id. Settendown’s and Butler’s recent motions to stay a decision in these appeals are hereby denied as moot.
Appeals dismissed in Case Nos. Al 3A0830and Al 3A0831.
This is the second appearance of this case before this Court. The trial court entered the order granting Waterscape’s motion to disqualify Butler on October 8, 2012. On October 17, 2012, Settendown filed a motion for a certificate of immediate review of the disqualification order. The trial court failed to rule on that motion by October 18, thereby implicitly denying it. See OCGA § 5-6-34 (b) (certificates for immediate review must be issued within ten days of the entry of the order being certified). On October 25, 2012, Settendown filed the current direct appeal to this Court (Case No. A13A0830), and Butler filed a separate direct appeal (Case No. A13A0831). Approximately two weeks later, on November 7, 2012, Settendown filed an application for a discretionary appeal from the disqualification order. Settendown Public Utility, LLC v. Waterscape Utility, LLC, Case No. A13D0122. We denied that application on November 20, 2012, finding that the order disqualifying Butler was interlocutory and that Settendown had failed to obtain a certificate of immediate review. See OCGA § 5-6-34 (b). Settendown then filed a petition for certiorari to the Supreme Court of Georgia, arguing that there was a conflict in Georgia law on the question of whether a disqualification order is directly appealable. Settendown Public Utility, LLC v. Waterscape Utility, LLC, Case No. S13C0585. The Supreme Court denied that petition on May 6, 2013.
Under Georgia law, a party may seek review of a disqualification order by availing itself of the procedures for an interlocutory appeal set forth in OCGA § 5-6-34 (b). See, e.g., Redd v. State, 264 Ga. 399 (444 SE2d 776) (1994) (“[t]he case is before the court from the grant of William S. Redd’s application for interlocutory appeal from an order of the trial court granting the [S]tate’s motion to disqualify his attorney”).
Nor do we find any merit in Butler’s argument that this Court’s holding in Lassiter Properties gives him, as the disqualified attorney, the right of direct appeal. In attempting to
An attorney who is disqualified . . . may well have a personal interest in pursuing an immediate appeal, an interest which need not coincide with the interests of the client. As a matter of professional ethics, however, the decision to appeal should turn entirely on the client’s interest. See ABAModel Rules of Professional Conduct 1.7(b), 2.1 (1985).
Richardson-Merrell v. Roller, 472 U. S. 424, 434-435 (III) (A) (105 SCt 2757, 86 LE2d 340) (1985) (holding that an ‘‘attorney’s personal interest in a disqualification ruling” is neither “relevant [n]or dispositive” to the question of whether such a ruling is immediately appealable).
Under the final judgment rule, a party does not have the right to a direct appeal of any ruling of the trial court until that court has entered a final judgment on the merits of the case. See, e.g., Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (II) (101 SCt 669, 66 LE2d 571) (1981); 28 USC § 1291. See also OCGA § 5-6-34 (a) (1) (a judgment is final when “the case is no longer pending in the court below”).
This case does not require us to decide the standard of review in an appeal from a final judgment where a claim of error is based on the grant or denial of a disqualification order.