Opposition Brief — Rolleston v. Cherry
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Sup ourt, Us f
ss. 2
No. 97-1445 APR 3 1998
ee “THE GLERK
In The
Supreme Court of the United States
October Term, 1997
¢
MORETON ROLLESTON, JR.,
Petitioner
The Estate of REBECCA WIGHT CHERRY SIMS, JOHN
RANDOLPH CHERRY, Executor,
Respondent.
On Petition For Writ Of Certiorari
To The Court Of Appeals Of Georgia
€
RESPONDENT'S BRIEF IN OPPOSITION
t
SHELBY A. OuTLAw
Counsel of Record
Ga. Bar No. 555740
THE OuTLAW Firm
315 Sycamore Street
Decatur, GA 30030
(404) 371-9588
Attorney for Respondent
i
1]
KLE LAW BRIEF PRINTING CO., (800) 225
OR ALL COLLECT (402) 342-2831
NOR eee sme
ee oh nnn
PETITIONER’S QUESTIONS
PRESENTED FOR REVIEW
The original complaint was a malpractice suit for
alleged professional negligence of an attorney. The trial
judge charged the jury that there was a twenty-year stat-
ute of limitations applicable to Georgia’s statute regard-
ing contribution. Georgia has a two-year statute of
limitations for ordinary torts and a five-year statute of
repose for professional negligence of physicians. The
Georgia statute for contribution does not contain any
statute of limitations. The twenty-year statute of limita-
tions regarding contributions, as charged by the trial
court, can only apply to attorneys for defendants in a
civil action.
Questions for Review is [sic] whether the twenty-
year statute, as charged, violates the equal protection of
laws as set forth in the Fourteenth Amendment of the
U.S. Constitution and whether or not it also constitutes
an illegal taking in violation of the Fifth Amendment to
the Constitution of the United States and the Georgia
Constitution, Article I, Section 3, Paragraph 1.
il
PARTIES TO THE PROCEEDINGS
The Petitioner has accurately identified the parties to
the proceeding.
ili
TABLE OF CONTENTS
Page
Petitioner’s Questions Presented for Review........ i
Parties to the Proceeding ..............---eeeeeeees ii
NEE PEE IE OPE PE ET OT ET ET Te iii
Ne hc e wes aes sear rweepans iv
Opinion and Judgment Below..........---..++++++- 1
Statement of Jurisdiction. .............-.. eee eeeee 2
Georgia Statutes Involved ........---..++++++eeeees 2
Errors and Omissions in Petitioner’s Statement of the
NN a rd ee ees oe ab he haba ones 3
Reasons for Denying the Writ .............----+++: 9
Argument ... 2.2.0... eee eee eee eee e ee enneee 10
OTE ESN POOP PLO PDE LT PE PE PON OY ee EEE 25
Appendix A - Judgment on Jury Verdict, Ful-
ton County Superior Court ....... A-1
Appendix B - Denial of Motions for Recon-
sideration, Court of Appeals...... B-1
Appendix C - Denial of Petition for Writ of
Certiorari to Supreme Court of
ee eee eee ee C-1
Appendix D - Enumeration of Errors............ D-1
Appendix E - Appellant’s Brief, excerpts........ E-1
Appendix F - Reply Brief, excerpts.............. F-1
Appendix G - Motion for Reconsideration,
a Se ee G-1
iv
TABLE OF AUTHORITIES
Page
CAsEs:
Aiken v. Richardson, 207 Ga. 735, 64 S.E.2d 54
hy} t SRR RAEN One ne A ere g a Perr ree Sy ere ee 19
Bunker v. Bunker, 80 A.D.2d 817, 437 N.Y.S. 2d 326
Ep 2S Ray ere waren erp ene aa a yng 16
Cherry v. Coast House, Ltd., 257 Ga. 403, 359 S.E.2d
POR: SAFES 45 558 ides So SSR AGA WAS RES ORES 12
Craven v. Lowndes County Hospital Authority, 263
Ga. 656, 437 S.E.20 308 at 310 (1993) ..........5 15, 16
Dye v. Georgia, 205 Ga. App. 781, 423 S.E.2d 713
CRD ec is trey we are ee A ol ek we 20
Feathers v. Wilson, 157 Ga. App. 753, 278 S.E.2d 434
CRORE ss ike Rake we rs OE a ie oka aes Seema ees 12
Gray v. Wallman & Kramer, 224 A.D. 2d 275, 638
NYS. 205 08 GALE), 2 SPORE TRIO oie a ence inde 16
Greyhound Lines, Inc. v. Cobb County Georgia, 681
Ficee CET TRAE GR. CPOs C Ss HAs Shane O cA ees 17
Griggs v. Nash, 116 Idaho 228, 775 F.2d 120 (Idaho,
cut Rear eae NES ge Lm ENre Stee ee gre vary open aManeee. a 16
Jova-Daniels-Busby, Inc. v. B & W Mechanical Con-
tractors, Inc., 167 Ga. App. 551, 307 S.E.2d 97
Ey) BRR eer ete tne gree ey pene pal eenr ay 17
Kraseath v. Parker, 212 Ga. App. 525, 441 S.E.2d 868
SI os inh ere ee peeeerre cde as daeha eee eal +
TABLE OF AUTHORITIES —- Continued
Page
Marchman & Sons, Inc. v. Nelson, 251 Ga. 475, 306
GC Del PR SUGGS) iis eves endps ine wecn roe beces 13, 17
Rolleston v. Cherry, 226 Ga. 750, 487 S.E.2d 354
‘tay [f POPS Eee Or ey ey ere fee 1, 133
Rolleston v. St. Paul Fire & Marine Insurance Com-
pany, US District Court for the Northern District
of Georgia, Atlanta Division, No. 1:95-CV-1081
e. 9 | SP pene Seen cry es ee re POU yk A 24
State Board of Equalization v. Trailer Train Co., 253
Ga. 449, 320 S.E.2d 756 (1984) «oc on oe vce wceess’ 19
State of Georgia v. Bruce, 248 Ga. 154, 282 S.E.2d 76
2). } RR eer Wecewere pis ers ror con cn era a 14
Turk v. State Highway Dept., 226 Ga. 245, 174 S.E.2d
POE LETT aa a eis se a aS 21
Yarbrough v. Georgia Railroad & Banking Co., 176
Ga. 700, 168 SB. O73 12900). 6 in os oe eee aes 20
Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986)...... 12
CONSTITUTIONAL PROVISIONS:
Fifth Amendment to Constitution of United States .... 23
Fourteenth Amendment to Constitution of United
eee EGR Ln Coir oe. SRR Te PE ees ee ee 23
Georgia Constitution, Article 1,8 1) Fo Sus res cae ees 23
Vi
TABLE OF AUTHORITIES — Continued
Page
Georgia Constitution, Article I, Section III, Para-
TE err reer reread. elroy tne bee 23
STATUTES:
CPAP. GS BR 2 eins oi eso 8io win o's 8 5 ee Dn ee 4
CRE Kise RTOS sik on ed nie Nie be CEU oe eRe Tie 2 ge
PR Rin PRT RROOE eke s Koa be sare emanate 2, 3, 10,143, 22
yO A. 3 aie ho. | 2) Deer HHI per pian me Ua yay 2
RULES:
Supreme Court Rule 14(g), (i)................ ts, £0; 21
OPINION AND JUDGMENT BELOW
The Petitioner seeks review of a jury charge on con-
tribution given by the trial court but neither the jury
verdict rendered March 22, 1995 nor the Judgment on
Jury Verdict entered April 7, 1995 were appended to his
Petition. They are reproduced herein as Respondent's
Appendix “A”.
The opinion by The Court of Appeals of the State of
Georgia, cited as 226 Ga. 750, 487 S.E.2d 354 (1997), was
appended to Petitioner’s Brief as Appendix “B” and is
not reproduced herein.
The order of the Court of Appeals of Georgia deny-
ing Petitioner’s Motion for Reconsideration was entered
June 11, 1997, and is reproduced herein as Respondent's
Appendix “B”.
The order of the Supreme Court of Georgia Denying
Petitioner’s Application for Writ of Certiorari was
entered October 31, 1997 and is reproduced herein as
Respondent’s Appendix “C”.
The order of the Supreme Court of Georgia denying
Petitioner’s Motion for Reconsideration was appended to
Petitioner’s Brief as Appendix “A” and is not reproduced
herein.
STATEMENT OF JURISDICTION
A. The Judgment on Jury Verdict was entered by the
Superior Court of Fulton County, State of Georgia, on
April 7, 1995.
B. The Court of Appeals, State of Georgia, rendered
its opinion, with all judges concurring, on March 6, 1997.
C. Respondent acknowledges that if the case below
otherwise presented a proper case for certiorari, jurisdic-
tion would be proper under 28 U.S.C. §1254(1) [cited by
Petitioner as 28 U.S.C. §1254(11)] but denies that Peti-
tioner presents a proper case for the grant of writ of
certiorari.
GEORGIA STATUTES INVOLVED
O.C.G.A. §51-12-32:
(a) Where a tortious act does not involve moral
turpitude, contribution among several trespassers may be
enforced just as if an action had been brought against
them jointly. Without the necessity of being charged by
action or judgment, the right of a joint trespasser to
contribution from another or others shall continue una-
bated and shall not be lost or prejudiced by compromise
and settlement of a claim or claims for injury to person or
property or for wrongful death and release therefrom.
(b) If judgment is entered jointly against several
trespassers and is paid off by one of them, the others
shall be liable to him for contribution.
aerial
(c) Without the necessity of being charged by an
action or judgment, the right of indemnity, express or
implied, from another or others shall continue unabated
and shall not be lost or prejudiced by compromise and
settlement of a claim or claims for injury to person or
property or for wrongful death and release therefrom.
O.C.G.A. §23-2-71:
In cases of joint, joint and several, or several lia-
bilities of two or more persons, where all are equally
bound to bear the common burden and one has paid
more than his share, he shall be entitled to contribution
from others; and whenever the circumstances are such
that an action at law will not give a complete remedy,
equity may entertain jurisdiction.
e
ERRORS AND OMISSIONS IN
PETITIONER’S STATEMENT OF THE CASE
Petitioner has substantially misrepresented to this
court essential material facts in the underlying case and
the state court appeals thereof, either by direct misstate-
ment or by omission, the most blatant examples of which
are set forth hereafter:
1. Contrary to Petitioner’s assertion, [Petitioner's
Brief, page 4] no constitutional question was raised by
Petitioner in either the trial court or the court of appeals,
[see excerpts from Petitioner's Briefs filed in the Court of
Appeals of the State of Georgia, to wit: Enumeration of
Errors (Appendix “D”), Appellant’s Brief (Appendix
“E”), Appellant’s Reply Brief (Appendix “F”) and Appel-
lant’s Motion for Reconsideration (Appendix “G”)]
2. Petitioner contends that the trial court erro-
neously charged the jury on contribution in a legal mal-
practice case resulting in a $5,200,000.00 judgment
against Petitioner but neglects to inform this Court that
the case below alleged five distinct and separate legal
causes of action against Petitioner (to wit: legal malprac-
tice, breach of fiduciary duty, fraud and fraudulent con-
cealment, contribution and indemnity) and that it is
impossible to determine the basis of the jury’s finding of
liability and damages from the jury’s general verdict form
(with which Petitioner himself concurred in open court at
trial). [See Appendix “A”, Judgment on Jury Verdict].
3. Petitioner contends that “the Georgia statute for
contribution does not contain any statute of limitations
(emphasis in original), and the trial court erred in charg-
ing the jury that there was a twenty-year statute of limita-
tions applicable to Georgia’s statute.” [Petitioner’s Brief,
p. i]. As stated by Judge Blackburn in the Opinion of the
Court of Appeals of Georgia, “this assertion is groundless
on the merits as the applicable statute of limitations for
such claims is in fact twenty years.” See O.C.G.A. §9-3-22,
Kraseath v. Parker, 212 Ga. App. 525, 441 S.E.2d 868 (1994),
(actions for contribution between joint tortfeasors gov-
erned by 20 year statute of limitations) [Opinion, Peti-
tioner’s Brief, Appendix “B-18”].
4. Petitioner further neglects to inform the Court
that there are two Georgia statutes authorizing recovery
of contribution or indemnity where the Defendant is
responsible in whole or in part for the injury to a third
party for which Plaintiff has been found liable. Pursuant
to O.C.G.A. §51-12-32, the Plaintiff has the right to
receive indemnification or contribution from a joint
tortfeasor to the extent of the damages for which Plaintiff
has been found liable. The Court of Appeals of Georgia
specifically found that “since Cherry’s liability to Coast
House was at least partially predicated upon acts for
which Cherry and Rolleston could be considered joint
tortfeasors, Cherry was entitled to seek contribution from
Rolleston . . . the trial court did not err in charging the
jury on contribution and indemnity.” [Opinion of the
Court of Appeals, Petitioner’s Brief, Appendix “B-17”].
5. Finally, Petitioner omitted from his Petition the
cardinal fact that he did not enumerate as error in the
state court that the charge of which he now complains
was an incorrect statement of the law. As stated by Judge
Blackburn:
“Rolleston does not contend that the court’s
charge was an incorrect statement of the law.
Accordingly, we do not address that issue.”
[Opinion, Petitioner’s Brief, Appendix “B-14,
footnote 1”]
6. Petitioner also failed to include in his Brief any
statement of the tacts of the case below material to con-
sideration of Petitioner’s challenge to the charge on con-
tribution. Accordingly, Respondent sets forth hereafter
such statement of facts. [See also the Opinion, Petitioner's
Brief, Appendix “B”, pages 1-9, which provides an excel-
lent summary of the cases below].
Respondent’s decedent, Rebecca Wight Cherry Sims,
and her husband were lifelong friends of Petitioner
Moreton Rolleston, Jr. When Mrs. Cherry consulted Roll-
eston to review a contract for the sale of her one-quarter
interest in a beach front cottage on St. Simons Island, he
counseled her instead to file suit for the title or a recre-
ational easement over the accreted beach land lying
between Camellia Cottage and the Atlantic Ocean. He
obtained a warranty deed from Mrs. Cherry granting him
one-third of whatever interest she possessed. His owner-
ship interest in the subject matter of litigation put him in
immediate conflict of interest with his client and was
ultimately to her great damage and detriment.
While pursuing litigation against the true owners of
the accreted land, Petitioner drafted a contract requiring
Mrs. Cherry to convey her interest in Camellia Cottage
prior to the conclusion of the accreted land litigation.
This conveyance would destroy her claim to the accreted
land. When the closing date of May 31, 1985 approached,
in order to avoid potential malpractice liability, Petitioner
conceived an elaborate strategy for preventing Mrs.
Cherry from attending the closing and at the same time
creating the appearance that the purchasers had failed to
close.
Rolleston arrived at the office of the closing attorney
on Friday, May 31, 1985 with a court reporter and
requested a private meeting with the developer and his
counsel. He proceeded to create a transcript of the
alleged “closing”. Thirty-seven minutes after his arrival -
without ever entering the closing room where the pur-
chasers, their attorneys and the lender were awaiting his
arrival — Petitioner delivered a letter dated June 1, 1985 to
their attorney claiming that purchasers had breached the
contract and then he departed. On Monday, June 3, 1985 -
the first business day following the aborted closing -
Petitioner filed his deed to a one-third interest in the
accreted land which clouded the title, prevented develop-
ment for years and cost the purchasers, Coast House, Ltd.
and Sandease, Ltd., millions of dollars in damages. When
the purchasers attempted to negotiate a settlement, Peti-
tioner insisted that he was a party to any settlement by
virtue of his one-third deeded interest and refused settle-
ment offers that were clearly in his client’s best interest.
Coast House, Ltd., and Sandease, Ltd., filed suit on
December 27, 1985 against Mrs. Cherry and Petitioner,
seeking specific performance and damages. Mrs. Cherry,
who relied entirely on Petitioner’s advice and the “tran-
script of the closing” which he created, was devastated to
learn through the testimony of Plaintiff’s witnesses at the
bench trial on damages in June, 1988, that it was she,
through the actions of her attorney, who had breached the
contract, resulting in a finding of bad faith against her
and Petitioner and an order for specific performance.
Mrs. Cherry terminated Petitioner’s representation
and threatened a malpractice action if Petitioner refused
to indemify her for future damages to be determined at
the jury trial. Petitioner refused to contribute or indem-
nify her damages. A few months later, in May, 1989, Mrs.
Cherry was brutally murdered at her home by an itiner-
ant day worker.
Mrs. Cherry’s Estate was substituted as Defendant at
the jury trial in February, 1991. The jury found the Estate
liable for breach of contract and abusive litigation based
on Petitioner’s conduct and awarded Three Million
($3,000,000.00) Dollars in damages and Eight Hundred
Thousand ($800,000.00) Dollars for bad faith attorneys
fees to Plaintiffs.
After the verdict, the Cherry Estate’s largest asset
was its tort claims against Petitioner which it agreed to
pursue in a negotiated settlement with Coast House, Ltd.,
and Sandease, Ltd. The Estate filed suit against Petitioner
in Superior Court of Fulton County, State of Georgia, on
February 20, 1992, seeking damages for breach of fiduci-
ary duty, legal malpractice, fraud and fraudulent conceal-
ment, contribution and indemnity. The jury awarded the
Estate $5,100,000.00 in damages and $100,000.00 in attor-
ney’s fees on March 22, 1995, after a twelve day trial in
which 19 witnesses for Plaintiff revealed Petitioner’s lia-
bility for the egregious harm suffered by Mrs. Cherry
during her lifetime and by the Estate after her death.
On appeal to the Court of Appeals of Georgia, none
of Petitioner’s ten Enumerations of Error raised a consti-
tutional question. Petitioner’s Motion for Reconsideration
likewise failed to address any constitutional issue in the
Court of Appeals, as none had been raised in the trial
court.
Petitioner raised issues of the constitutionality of the
trial court’s charges on the law of contribution for the
first time in his Petition for Writ of Certiorari to the
Supreme Court of Georgia. That Petition was denied on
October 31, 1997 and Petitioner’s Motion for Reconsidera-
tion was denied on November 21, 1997.
Petitioner filed and served his Petition for Writ of
Certiorari to this Court on February 19, 1998. He has
subsequently filed in this Court a Motion to Stay Trial in
the Superior Court of Fulton County, Georgia, on Plain-
tiff’s second suit, seeking to set aside as fraudulent con-
veyances Petitioner’s transfer of all of his real and
personal property - valued in excess of Eight Million
(8,000,000.00) Dollars — to the Moreton Rolleston, Jr. revo-
cable living trust, of which he is sole trustee and also a
beneficiary. This second suit was filed on April 12, 1995,
five days after the entry of judgment on the Five Million
Dollar verdict. It is calendared for trial on April 14, 1998.
Petitioner’s Motion for Stay addressed to Justice Anthony
M. Kennedy was denied on March 25, 1998.
¢
REASONS FOR DENYING THE WRIT
There are no compelling reasons for review of the
lower state court’s decision on writ of certiorari, and
multiple reasons for denying the writ:
(a) Petitioner cites no conflict with any decision of
the United States court of appeals and a state court of last
resort or any departure from the accepted and usual
course of judicial proceeding so as to call for an exercise
of this Court’s supervisory power;
(b) Petitioner cites no decision of a federal question
by a state court of last resort that conflicts with another
state court of last resort or of a United States court of
appeals.
(c) Petitioner cites no important question of federal
law that has not been but should be settled by this Court,
or that has been decided in a way that conflicts with
relevant decisions of this Court.
10
(d) Petitioner claims that the trial court misapplied
a properly stated rule of law, but it is well established
that a writ of certiorari is rarely granted for such reason.
(e) Finally, Petitioner failed to raise his constitu-
tional challenge in the court of first instance, Fulton
Superior Court. [See Respondent’s Appendix “D”, Peti-
tioner’s Enumerations of Error in the Court of Appeals].
(f) Petitioner further failed to raise any federal
question in the Court of Appeals. [See Respondent's
Appendix “E”, (Appellant’s Brief), Appendix “F”, (Reply
Brief) and Appendix “G”, (Motion for Reconsideration)].
Therefore, no constitutional challenge is properly
presented for review by this Court.
+
ARGUMENT
A. Petitioner’s Conduct as a Joint Tortfeasor Rendered
Him Liable For Contribution To Former Client’s
Estate
Petitioner’s sole basis for appeal to this Court is the
alleged illegal and unconstitutional jury charge on the
law of contribution.
Two statutes in Georgia authorize a party to seek
contribution from another responsible party for damages
awarded to an injured third party.
The first, a legal remedy, is O.C.G.A. §51-12-32,
which reads as follows:
11
(a) Where a tortious act does not involve moral
turpitude, contribution among several tres-
passers may be enforced just as if an action had
been brought against them jointly. Without the
necessity of being charged by action or judg-
ment, the right of a joint trespasser to contribu-
tion from another or others shall continue
unabated and shall not be lost or prejudiced by
compromise and settlement of a claim or claims
for injury to person or property or for wrongful
death and release therefrom.
(b) If judgment is entered jointly against sev-
eral trespassers and is paid off by one of them,
the others shall be liable to him for contribution.
(c) Without the necessity of being charged by
an action or judgment, the right of indemnity,
express or implied, from another or others shall
continue unabated and shall not be lost or preju-
diced by compromise and settlement of a claim
or claims for injury to person or property or for
wrongful death and release therefrom.
The second, an equitable remedy, is O.C.G.A.
§23-2-71, which reads as follows:
In cases of joint, joint and several, or several
liabilities of two or more persons, where all are
equally bound to bear the common burden and
one has paid more than his share, he shall be
entitled to contribution from others; and when-
ever the circumstances are such that an action at
law will not give a complete remedy, equity may
entertain jurisdiction.
Although Petitioner did not cite the remedy at law
but cited instead - and only - the remedy at equity, it is
clear that the Georgia Court of Appeals found that the
12
remedy at law was adequate and the charge was properly
adjusted to the evidence.
As stated by Judge Blackburn, writing for the Court
of Appeals of Georgia:
It is the duty of the trial court to instruct the
jury on an issue of law if there is evidence to
support the instruction. Feathers v. Wilson, 157
Ga. App. 753 (278 S.E.2d 434) (1981).
In essence, Rolleston asserts that he cannot
be considered a joint tortfeasor and so cannot be
liable for contribution and indemnity. However,
the verdict in the Coast House lawsuit was not
totally predicated upon Cherry’s breach of con-
tract; at least a portion of the award related to
Coast House’s claim for abusive litigation,
which was based on the joint conduct of Cherry
and Rolleston. Indeed Cherry and Rolleston had
originally been named as joint Defendants on
such claim, although the court severed the trials
of the two. In his appellate brief, which was
personally drafted by Rolleston, Rolleston states
that the trial court granted summary judgment
to him on all charges, and that the Supreme
Court affirmed. This is a misrepresentation of
the facts, as the trial court expressly denied
Rolleston’s Motion for Summary Judgment on
the abusive litigation claim and the Supreme
Court expressly upheld that denial. See Cherry v.
Coast House, Ltd., 257 Ga. 403, 407 (359 S.E.2d
904) (1987). (“We affirm the denial of Summary
Judgment [to Rolleston] as to any Yost v. Torok,
[abusive litigation] claim which might now exist
or arise in the future.”) Since Cherry’s liability
to Coast House was at least partially predicated
upon acts for which Cherry and Rolleston could
13
be considered joint tortfeasors, Cherry was enti-
tled to seek contribution from Rolleston under
O.C.G.A. §51-12-32, notwithstanding the fact
that Coast House apparently did not pursue its
abusive litigation claim against Rolleston, see
Marchman & Sons v. Nelson, 251 Ga. 475 (306
S.E.2d 240) (1983). Accordingly, the trial court
did not err in charging the jury on contribution
and indemnity. Rolleston v. Cherry, 226 Ga. 750,
487 S.E.2d 354 (1997), [See also Opinion, Appen-
dix “B” to Petitioner’s Brief, pp. B15-17].
Mrs. Cherry’s entire liability to Coast House et al. for
damages for abusive litigation and bad faith attorney's
fees in the amount of Three Million Eight Hundred Thou-
sand ($3,800,000.00) Dollars was the direct result of Peti-
tioner Moreton Rolleston, Jr.’s actions at the closing and
subsequently in the litigation.
Mrs. Cherry was entitled to seek contribution from
Petitioner as a joint tortfeasor, regardless of whether he
was a named party or found liable in the underlying
lawsuit. Petitioner misleads this Court when he implies
that the trial court applied to a legal malpractice case a
contribution statute with a statute of limitations of
twenty years. As the Statement of the Case demonstrates,
the case below was an unusual fact-sensitive scenario
where an attorney put himself in conflict with his client
by demanding a one-third deeded interest in the subject
matter of litigation, and subsequently pursuing his finan-
cial interests to the detriment of his client. Petitioner’s
failure to provide this Court with the facts material to
consideration of the questions presented, in violation of
this Court’s Rule 14(g), is tantamount to an admission
14
that Petitioner’s questions will not survive scrutiny when
coupled with the facts.
Petitioner seeks to obtain a writ of certiorari upon a
fallacious premise that misstates the evidence and mis-
characterizes the posture of the case in the trial court.
Petitioner states that “The original complaint was a mal-
practice suit for alleged professional negligence of an
attorney.” [Petition, Questions Presented, p. 1]. Petitioner
fails to inform the Court that Respondent’s Complaint
contained five separate counts, including a count for
fraud and fraudulent concealment. When Petitioner filed
suit on behalf of Mrs. Cherry seeking title to accreted
beach front land he knew — based upon his prior involve-
ment in the Bruce case — that she could never meet the
evidentiary standard adopted in 1981 in that case. State of
Georgia v. Bruce, 248 Ga. 154, 282 S.E.2d 76 (1981).
Respondent contends that Rolleston’s failure to dis-
close this material fact was intentional misrepresentation
or fraud rather than professional negligence or malprac-
tice. Not only was the jury authorized to determine that
Petitioner’s actions were fraudulent, and intended to gain
leverage for a settlement to his personal financial advan-
tage in a multi-million dollar land assemblage, but it was
further authorized to find that this information was never
disclosed to Mrs. Cherry, and was later revealed only by
the evidence at Petitioner’s trial.
Testimony at trial from the late Mrs. Cherry's per-
sonal notes, depositions and her underlying Coast House
trial testimony evidenced that Mrs. Cherry was entirely
convinced by Petitioner’s representations that she had a
15
legitimate claim to the accreted land and that her attor-
ney could have represented her at the closing if the
Purchasers had tendered the money. As Judge Blackburn
stated: “The jury was authorized to conclude from the
evidence that Rolleston intentionally misled his client in
order to prevent the closing, so as to avoid a potential
malpractice claim for his misdrafting of the purchase
agreement.” (Opinion, Petitioner’s Appendix “B”, p. 12].
Likewise, Petitioner quotes Judge Jenrette’s charge
on contribution and indemnity out of context. In the trial
‘ourt’s main charge, prior to instruction upon contribu-
tion and indemnity, the court fully instructed the jury on
the four-year statute of limitations for malpractice
actions, as well as the tolling of said statute for fraud,
including the failure to disclose material facts in a confi-
dential relationship. “As there was evidence from which
the jury could infer fraud, the court did not err in
instructing the jury on the law of fraud.” [Opinion, Peti-
tioner’s Appendix “B”, p. 13).
The authority cited by Petitioner has no application
to the case at bar. The fact that there is no legal malprac-
tice statute of repose whereas the medical malpractice
statute of repose has survived constitutional challenges is
a matter for legislative action and not for writ of cer-
tiorari. However, even if lawyers in Georgia were pro-
tected, like physicians, by a statute of ultimate repose, it
would not have changed the result in the case sub judice.
The Craven court, cited by Petitioner, notes that a statute
of repose does not eliminate liability for malpractice
where fraudulent concealment exists, as in this instance,
because, similarly to a statute of limitations, the statute of
16
repose is tolled by fraud. Craven v. Lowndes County Hospi-
tal Authority, 263 Ga. 656, 437 S.E.2d 308 at 310 (1993).
The foreign jurisdictions cited by Petitioner are
clearly distinguishable. Neither the Bunker case [Bunker v.
Bunker, 80 A.D. 2d 817, 437 N.Y.S. 2d 326 (1981), cited by
Petitioner as “Bunker v. Maccaro”| nor the Griggs case
[Griggs v. Nash, 116 Idaho 228, 775 F.2d 120 (Idaho, 1989)]
involve an independent tort against a third party where
either the client, the attorney or both bear responsibility
for damage to the third party, as in the case at bar.
The Bunker case involves a former husband seeking
recovery from his attorney based on incompetent repre-
sentation resulting in his financial obligations incurred in
his divorce settlement and is not supported by any statu-
tory basis for contribution or indemnity. The Griggs case
is also readily distinguishable because the claims of a
third-party plaintiff against the attorney had no basis in
the Idaho statutory scheme for contribution or indemnity.
In particular, the Idaho Court noted that contribution was
only available as to a joint tortfeasor, and the attorney
was not asserted to be a joint tortfeasor. In the case at bar,
there is an evidentiary basis for Petitioner’s liability as a
joint tortfeasor. [Opinion, Petitioner’s Appendix “B”, pp.
7 and 8}.
The case of Gray v. Wallman & Kramer, 224 A.D. 2d
275, 638 N.Y.S. 2d 18 (A.D. 1 Dept. 1996) bears a greater
factual similarity since it concerns an attorney’s motion to
dismiss a third party complaint by his client based on his
failure to properly represent her in a failed closing. How-
ever, upon scrutiny, not only did the attorney have no
17
personal stake in the litigation giving rise to an indepen-
dent tort against a third party, but the New York court
found that, although styled as a claim for indemnity, a
viable cause of action for malpractice existed, based on
the facts in dispute, and it affirmed the trial court’s denial
of the attorney’s motion to dismiss. None of the foreign
cases stands for the proposition that an attorney can
never be held liable to a client for indemnity or contribu-
tion, and they have no precedential value with respect to
the case at bar.
Mrs. Cherry’s claims for contribution and indemnity
did not arise until her Estate incurred damages as a result
of Rolleston’s tortious acts. Where the attorney is an
active tortfeasor, an action for contribution and indem-
nity will arise pursuant to both law and equity. It is not
necessary for the tortfeasor to be joined in the original
suit. Greyhound Lines, Inc. v. Cobb County Georgia, 681 F.2d
1327 (11th Cir. 1982). Even the dismissal of the Appellant
in the underlying suit does not affect this claim. March-
man & Sons, Inc. v. Nelson, 251 Ga. 475, 306 S.E.2d 290
(1983). In the case of joint tortfeasors, the passive
tortfeasor has an action against the active tortfeasor. Jova-
Daniels-Busby, Inc. v. B & W Mechanical Contractors, Inc.,
167 Ga. App. 551, 307 S.E.2d 97 (1983).
Appellee’s claims for contribution and indemnity are
not claims ancillary to professional negligence, but are
independent actions arising out of Appellant’s purpose-
ful deception and fraud in gross conflict of interest with
his client as well as his abusive litigation tactics pursued
to delay the day of final reckoning and isolate his client
from the truth. Therefore, the trial court’s charges on
18
contribution were a correct statement of the law, properly
adjusted to the evidence.
Petitioner’s conclusion that the Court of Appeals rul-
ing “abrogates the two-year tort and four-year coniract
statutes of limitation,” leading to endless liability for
attorneys is an absurd conclusion, illogically constructed
upon a fallacious premise. The clear implication of the
jury's verdict and the Court of Appeals decision is that an
attorney who interjects himself into a client’s business,
obtains an interest in the subject matter of the litigation,
never discloses his conflicts of interest and actively con-
ceals knowledge that is material to the client’s welfare, to
protect himself against a malpractice claim and for his
personal gain, does so at his risk and peril. The public,
through the voice of a jury of his peers, did not tolerate
Petitioner’s actions. The Court of Appeals panel, unani-
mously concurring with Judge Blackburn’s strongly
worded opinion, did not condone Petitioner’s abuse of
his confidential relationship to Respondent’s Decedent.
Petitioner’s Brief misrepresents the underlying record
and fails to demonstrate either reason or authority entit-
ling Petitioner to the grant of Writ of Certiorari.
B. This Court Lacks Jurisdiction to Consider a Consti-
tutional Question Raised For the First Time in Peti-
tioner’s Application to the Supreme Court of
Georgia for Writ of Certiorari.
It is black-letter law in Georgia from time imme-
morial that a constitutional question must be raised in the
first instance to serve as ground for appeal in a higher
court.
19
“Jurisdiction is not vested in the Supreme Court
merely because it is contended that an action or
judgment is or would be contrary to some provision
of the Constitution.” (Cite omitted) A constitutional
question cannot be raised for the first time in the
Supreme Court. Where it is sought to invoke a ruling
by the Supreme Court on a constitutional question,
the question must have been raised in the trial court
and a ruling made thereon and the case brought to
the Supreme Court for review. (Cites omitted)
Aiken v. Richardson, 207 Ga. 735, 64 SE 2d 54
(1951).
This is true regardless of the level at which the “first
instance” occurs, as the following examples illustrate:
1) On appeal from an administrative agency
to Superior Court:
This same rule has been applied to constitutional
challenges first raised in the superior courts, rather
than in the state agency in which the proceeding
commenced: The reason for this requirement is to
give the appropriate body — at the first instance — an
opportunity to rectify the situation. (Cites omit-
ted.) State Board of Equalization et al. v. Trailer
Train Company et al., 253 Ga. 449, 320 SE 2d 758
(1984).
2) On appeal from trial court to Court of
Appeals:
This raises the issue of our jurisdiction . . . since sole
jurisdiction to consider the constitutionality of a
statute rests in the Supreme Court. . . . However, in
this instance, a constitutional issue is not raised
because there is no suggestion on the record sent up
from the trial court. . . . Since the constitutionality
of no statute was ruled upon by the trial court, and
since we may not address questions on appeal which
20
were not passed on by the trial court, no question as
to the constitutionality . . . is presented for appellate
review. (Cites omitted.) Dye v. Georgia, 205 Ga.
App. 781, 423 S.E. 2d 713 (1992).
3) On appeal from trial court to the Supreme
Court:
The record shows that this act was neither considered
nor ruled upon at the trial of this case. “This Court
will never pass upon the constitutionality of an act’
of the General Assembly unless it clearly appears in
the record that the point was directly and properly
made in the court below and distinctly passed on by
the trial judge.” Yarbrough v. Georgia Railroad &
Banking Co., 176 Ga. 780, 168 S.E. 873 (1933).
The requirement of raising the constitutional ques-
tion in the first instance as a condition precedent for
review in a higher court is strictly respected by this court.
Petitioner has failed to comply with Rule 14(g), (i) of this
court which requires him to specify
the stage in the proceedings when the federal
questions sought to be reviewed were raised,
the method or manner of raising them and the
way in which they were passed on by those
courts, and pertinent quotations of specific por-
tions of the record or summary thereof, with
specific reference to the places in the record
where the matters appear (e.g., court opinion,
ruling on exception, portion of court’s charge
and exception thereto, assignment of error), so
as to show that the federal question was timely
and properly raised and that this court has juris-
diction to review the judgment on a writ of
certiorari. Rule 14(g), (i) of Rules of the Supreme
Court of the United States.
ee EE Nee TT eee
21
In token compliance with Rule 14, Petitioner stated
that the constitutional questions were first raised in the
appeal to the Court of Appeals of Georgia. This is a
brazen misrepresentation to this Court, as review of
every argument posited by Petitioner in the Court of
Appeals on the issue of contribution readily demon-
strates. (See Respondent’s Appendices “D”, “E”, “F” and
“G”.) Petitioner has not even attempted to cite from the
record or transcript of the trial court, or the numerous
briefs filed by Petitioner himself in the Georgia Court of
Appeals to demonstrate prior consideration of his argu-
ments, nor has he referenced any authority for his asser-
tion that this Court has jurisdiction to consider such
latter-day arguments. The logical conclusion to be drawn
from such failure is that Petitioner is unable to provide
authority or record citations because none exists. There-
fore, logic dictates that Petitioner’s constitutional argu-
ment — which Petitioner failed to raise in either the trial
court or the Georgia Court of Appeals - is fatally out of
time and out of place and will not be considered.
It is well-settled that in order to raise a question as to
the constitutionality of a “law,” at least three things must
be shown:
(1) the statute or the particular part or parts of
a statute which the party would challenge must
be stated or pointed out with fair precision; (2)
the provision of the Constitution which it is
claimed has been violated must be clearly desig-
nated; and (3) it must be shown wherein the
statute, or some designated part of it, violates
such constitutional provision. (Cites omitted.)
Turk v. State Highway Dept., 226 Ga. 245, 174 SE
2d 791 (1970).
22
Even in this untimely application, Petitioner has failed to
comply with the rudiments of the showing necessary to
consideration of constitutional questions at any adminis-
trative or judicial level.
‘
In order to invoke entitlement to “equal protection,”
Petitioner must first demonstrate that he is a member of a
suspect class that is the subject of statutory discrimina-
tion. The only statute cited by number in Petitioner’s
Brief is O.C.G.A. §23-2-71, for equitable right of contribu-
tion although an equal right of contribution and indem-
nity clearly arises under tort statute O.C.G.A. §51-12-32
as well. Moreover, neither statute applies to any profes-
sion nor any segment of any profession, per se, but only
to those persons whose role in a joint enterprise renders
them either wholly or partially liable for damages to a
third party.
The sole issue faced by the jury with respect to
contribution and indemnity was “Would Mrs. Cherry
have incurred liability to Coast House and Sandease in
the underlying suit, but for the conduct of Moreton Roil-
eston?” The Georgia Court of Appeals found that evi-
dence in the record supported jury charges to this effect.
Lawyers have no constitutional right by virtue of
their profession to escape liability for their acts which
expose their clients to grave injury. This is particularly
true where the lawyer has ignored the professional stan-
dards of conduct promulgated by the Georgia State Bar,
and acted in direct conflict with the economic interests of
his client, as in the case at bar. Rare is the lawyer who
will defend a client against a money judgment free of
23
charge for almost three years in cross-claims, counter-
claims, interlocutory appeals, cross-appeals, and even a
detour to this Court, on petition for Writ of Certiorari, as
did Petitioner, unless such representation is ultimately for
his own self-protection and to prevent his client’s access
to independent counsel. Petitioner did not incur liability
to Respondent because he represented a defendant in an
adverse money judgment, but because his actions in the
furtherance of his own interest caused or contributed to
the adverse judgment against his former client. To now
invoke a right to equal protection for such action is a
travesty of the safeguards against governmental discrimi-
nation contained in the Fourteenth Amendment and Arti-
cle I, §1, | 2 of the Georgia Constitution.
Petitioner’s argument that the contribution charge
constituted an “illegal takings” or “deprivation of advan-
tage to property” in violation of the Fifth Amendment
and the Constitution of the State of Georgia, Article I,
Section, III, Paragraph I(a) is equally specious. The prop-
erty at issue (higher cost of legal malpractice premiums)
is not menaced by government taking for public use,
which is the threshold issue pursuant to the very clear
language of both the federal and state constitutions. Not
only is no state action involved, but there is no state
requirement for lawyers to maintain malpractice insur-
ance and thus, no legal basis for a takings argument.
Petitioner’s argument that malpractice premiums will
increase if the jury’s assessment of liability stands is
totally speculative and totally ignores the inference of
intentional misconduct and fraudulent misrepresentation
found by the Court of Appeals. Moreover, such conduct is
24
not an insured risk under the errors and omissions provi-
sions of malpractice insurance policies.'! Petitioner is
presently appealing in the Eleventh Circuit Court of
Appeals an order of Judge Tidwell denying malpractice
insurance coverage to Petitioner pursuant to the Dishon-
est Acts Exclusion of his policy. Rolleston v. St. Paul Fire &
Marine Insurance Company, United States District Court
for the Northern District of Georgia, Atlanta Division,
Civil Action No. 1:95-CV-1081 (GET).
To summarize, Petitioner cannot seek a writ of cer-
tiorari in this Court to review constitutional questions
that were not raised in the trial court or the Court of
Appeals of Georgia. However, even if this option were
available to Petitioner, he has failed to set forth the ele-
ments of a constitutional challenge. Moreover, Petitioner
cannot under any circumstances demonstrate the requi-
site discriminatory state action necessary to trigger con-
stitutional safeguards. Petitioner’s invocation of
constitutional protection against his personal liability on
a money judgment in favor of Respondent would be
merely a dismal pleasantry were not the subject so
serious and the damage to Respondent and its Decedent
so extreme.
' “The jury was authorized to conclude from the evidence
that Rolleston intentionally misled Mrs. Cherry” (Opinion, p.
12). “As there was evidence from which the jury could infer
fraud, the court did not err in instructing the jury on the law of
fraud” (Opinion, p. 13).
nN
ul
CONCLUSION
The decision of the Court of Appeals of Georgia is in
accordance with the law of Georgia and the Constitutions
of the State of Georgia and the United States. Petitioner
has failed to show that he has been denied due process,
that his property has been taken or damaged for public
use or that he has been denied the equal protection of the
laws. Respondent Estate of Rebecca Wright Cherry Sims
submits that for these reasons stated above, the Petition
of Moreton Rolleston, Jr., for Writ of Certiorari should be
denied.
Respectfully submitted,
SHetspy A. OutTLaw
THe Outitaw Firm
315 Sycamore Street
Decatur, GA 30030
(404) 371-9588
Counsel for Respondent
Dated: April 3, 1998
A-l
APPENDIX A
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
ESTATE OF REBECCA WIGHT
CHERRY SIMS, JOHN
RANDOLPH CHERRY, Executor,
Plaintiff,
CIVIL ACTION
FILE NO. D97003
v.
MORETON ROLLESTON, JR.,
Defendant.
|
JUDGMENT ON JURY VERDICT
(Filed Apr. 7, 1995)
This action having come on for trial before the Court
and a jury, the Honorable Isaac Jenrette, presiding, and
the issues having been duly tried, and the jury having
duly rendered its verdict (attached hereto as Exhibit “A”),
IT IS HEREBY ORDERED AND ADJUDGED
That the Plaintiff, The Estate of Rebecca Wight
Cherry Sims, John Randolph Cherry, Executor, shall
recover of the Defendant, Moreton Rolleston, Jr., the prin-
cipal sum of FIVE MILLION ONE HUNDRED THOU-
SAND ($5,100,000.00) DOLLARS, plus expenses of
litigation in the amount of ONE HUNDRED THOUSAND
($100,000.00) DOLLARS, together with the costs of this
action and Judgment is hereby entered for said amount;
That the Plaintiff, The Estate of Rebecca Wight
Cherry Sims, John Randolph Cherry, Executor, shall
A-2
recover of the Defendant, Moreton Rolleston, Jr., post-
judgment interest thereon at the rate of twelve percent
(12%) per annum as provided by law, on the principal
sum of FIVE MILLION ONE HUNDRED THOUSAND
($5,100,000.00) DOLLARS to the date of satisfaction of
said principal sum and Judgment is hereby entered for
said amount; and
Plaintiff filed its affidavit showing demand was mac,
via certified mail on January 13, 1993 for unliquidated
damages in the amount of One Million ($1,000,000.00)
Dollars and Defendant having failed to satisfy said
demand within the time required by O.C.G.A. §51-12-14,
the Plaintiff, The Estate of Rebecca Wight Cherry Sims,
John Randolph Cherry, Executor, shall further recover of
the Defendant, Moreton Rolleston, Jr., pre-judgment
interest in the amount of Two-Hundred Fifty-Two Thou-
sand Four Hundred Ninety-Three and 15/100
($252,493.15) Dollars, pursuant to O.C.G.A. §51-12-14,
said amount being interest at the rate of twelve percent
(12%) per annum running from thirty days after Plain-
tiff’s unliquidated damages demand on January 13, 1993,
to the date of Judgment on March 22, 1995. Judgment is
hereby entered for said amount.
This 6th day of Apr. 1995.
/s/ Isaac Jenrette
The Honorable
Isaac Jenrette, Chief Judge
Fulton County
Superior Court
ams cn
Presented by:
/s/ Shelby A. Outlaw
SHELBY A. OUTLAW
Georgia State Bar No. 555740
/s, scott M. Kaye
SCOTT M. KAYE
Georgia State Bar No. 409310
ATTORNEYS FOR PLAINTIFF
THE OUTLAW FIRM
315 Sycamore Street
Decatur, Georgia 30030
(404) 371-9588
A-4
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
ESTATE OF REBECCA WIGHT CIVIL ACTION
. “ppv . ’ ¢ I ] » ] ) } » : ean ‘
pathen oe JOHN RANDOLPH CASE NO.
( INKY, Executor 1D-97003
Plaintiff
vs
MORETON ROLLESTON, JR.
Defendant
VERDICT
We the jury find for the plaintiff and award damages
as follows:
$5,100,000
l. Actual Damages
plus any interest ee.
2 Expense of Litigation
including attorneys fees $100,000
Total $5,200,000
We find that punitive damages should be awarded
( ) Yes (X) No.
OR
We the jury find for the defendant. ( )
This the 22nd day of March, 1995.
/s/ James A. Robbins, Ir.
FOREPERSON
B-1
APPENDIX B
Court of Appeals
of the State of Georgia
ATLANTA, JUNE 11, 1997
Che Honorable Court of Appeals met pursuant to adjournment.
The Followin 4 orde? Wus massed
& }
Case No. A97A0056
MORETON ROLLESTON, JR. V. JOHN RANDOLPH
CHERRY, EXECUTOR OF THE ESTATE OF REBECCA
WIGHT CHERRY SIMS
Upon consideration of the motion for reconsideration
filed in this case, it is ordered that it be hereby denied.
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta
JUN 11, 1997
I certify that the above is a true
extract from the minutes of the Court of
Appeals of Georgia.
Witness my signature and the seal of
said court hereto affixed the day and year
last above written.
/s/ William L. Martin
Clerk.
B-2
Court of Appeals
of the State of Georgia
ATLANTA, JUNE 11, 1997
The Honorable Court of Appeals met pursuant to adjournment.
The Following order was passed:
Case No. A97A0051
MORETON ROLLESTON, JR. V. JOHN RANDOLPH
CHERRY, EXECUTOR OF THE ESTATE OF REBECCA
WIGHT CHERRY SIMS
Upon consideration of the motion for reconsideration
filed in this case, it is ordered that it be hereby denied.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta
JUN 11, 1997
I certify that the above is a true
extract from the minutes of the Court of
Appeals of Georgia.
Witness my signature and the seal of
said court hereto affixed the day and year
last above written.
/s/ William L. Martin
Clerk.
C-1
APPENDIX C
SUPREME COURT OF THE STATE OF GEORGIA
CLERK’S OFFICE
ATLANTA
DATE: October 31, 1997
Shelby Outlaw
THE OUTLAW FIRM
315 Sycamore Street
Decatur GA 30350
Case No. S97C1616
MORETON ROLLESTON, JR. V. JOHN RANDOLPH
CHERRY, EXEC.
COURT OF APPEALS CASE NO. A97A0051 A97A0056
The Supreme Court today denied the petition for
certiorari in this case.
All the Justices concur, except Sears, J., not participat-
ing.
Sincerely,
Sherie M. Welch, Clerk
D-1
APPENDIX D
IN THE
COURT OF APPEALS
OF THE STATE OF GEORGIA
CASE NUMBERS
A97A0051 and
A97 A0056
MORETON ROLLESTON, JR.
Appellant, 7
Vs. )
ESTATE OF REBECCA WIGHT ?
CHERRY SIMS, JOHN
RANDOLPH CHERRY,
EXECUTOR
)
)
Appellee
ENUMERATION OF ERRORS
Moreton Rolleston, Jr.
Suite 1870 — Riverwood 100
3350 Cumberland Circle., N.W.
Atlanta, Georgia 30339
770/850-1816
Rush S. Smith, Jr.
Sullivan, Hall, Booth & Smith
Suite 800 — One Midtown Plaza
1360 Peachtree Street, N.E.
Atlanta, Georgia 30309
404/870-8000
ENUMERATION OF ERRORS
1.
The Court erred in failing to charge (1) that a two
year statute of limitations applies to torts; (2) that a four
D-2
year statute of limitations applies to contracts; and (3)
that a two year statute of limitations applies to any
wrongful act regarding fiduciary duty and erred in per-
mitting testimony of the Estate’s experts regarding fiduci-
ary duties of Rolleston after he resigned representation of
Cherry in October 1988.
5
ae
[he court erred in charging the jury that Rolleston
court be held liable for contributions and indemnity and
that the applicable statute of limitations for contribution
and indemnity was twenty years.
3.
[he Court erred in not holding that Taylor Jones’s
letter of April 17, 1989 constituted a release of claims
against Rolleston.
4.
The court erred in failing to charge O.C.G.A. 13-8-2
which defines champerty and in failing to charge the jury
that the settlement contract between Coast House and the
Cherry Estate was void as against public policy and in
failing to charge the jury that the assignment to Coast
House of the Estate’s claim against Rolleston was illegal
in violation of O.C.G.A. 44-12-24.
71)
The court erred in failing to charge the jury that the
limit of damages, if any, was the actual loss of $500,000,
which was the sales price of the house taken by Coast
House, plus attorneys fees in the Coast House litigation.
6.
The court erred in the excessive, unduly broad and
prejudicial charges of what constituted fraud and in plac-
ing undue emphasis on what constituted fraud by men-
tioning the word “fraud” 25 times, when there was no
testimony re fraud.
a
The court erred in refusing to charge the jury with
defendant’s request for charge that Cherry ratified all of
the acts of Rolleston, her attorney and agent.
8.
The court erred in charging the jury that a violation
of the Standards of Conduct constituted legal malprac-
tice. The court used the term “Rules of Professional Con-
duct” rather than the proper term “Standards of
Conduct”.
9.
The court erred in failing to charge the jury, as
requested, that a legal opinion rendered by a lawyer,
even if in error, does not constitute malpractice.
D-4
10.
The Court erred in denying Rolleston’s motion for
summary judgment and Rolleston’s motion for a
directed verdict.
Pursuant to Rule 22 (c), the Court of Appeals has
Appellate Jurisdiction of this case pursuant to Article 6,
Section 5, Paragraph 3 of the Georgia Constiiution and is
not a case over which the Supreme Court of Georgia has
exclusive or general Appellate Jurisdiction.
The first Complaint filed for “Contribution, Indem-
nity and Damages” appears at Record 15. This Complaint
was amended by filing an entirely new Complaint for
“Contribution, Indemnity and Damages” which appears
at Record 938.
/s/ Moreton Rolleston, Jr.
Moreton Rolleston, Jr.
Pro Se
Georgia Bar No. 613700
D-5
IN THE
COURT OF APPEALS
OF THE STATE OF GEORGIA
CASE NUMBERS
A97A0051 and
A97A0056
MORETON ROLLESTON, JR.
Appellant,
Vs.
ESTATE OF REBECCA WIGHT
CHERRY SIMS, JOHN
RANDOLPH CHERRY,
EXECUTOR
Appellee
CERTIFICATE OF SERVICE
I hereby certify that I have served counsel of record
with the within and foregoing Enumeration of Errors by
mailing a copy of same to the following named counsel of
record at the correct mailing address with sufficient post-
age affixed thereto, as follows:
Ms. Shelby Outlaw
315 Sycamore Street
Decatur, Georgia 30030
This 11th day of September, 1966 [sic].
/s/ Moreton Rolleston, Jr.
Moreton Rolleston, Jr.
E-]
APPENDIX E
IN THE
COURT OF APPEALS
OF THE STATE OF GEORGIA
CASE NUMBERS
A97A0051 and
A97A0056
MORETON ROLLESTON, JR.
Appellant,
Vs.
ESTATE OF REBECCA WIGHT
CHERRY SIMS, JOHN
RANDOLPH CHERRY,
EXECUTOR
Appellee
‘ . ~ = , , ,
BRIEF OF APPELLANT
Moreton Rolleston, Jr.
Suite 1870 — Riverwood 100
3350 Cumberland Circle., N.W.
Atlanta, Georgia 30339
770/850-1816
Rush S. Smith, Jr.
Sullivan, Hall, Booth & Smith
Suite 800 —- One Midtown Plaza
1360 Peachtree Street, N.E.
Atlanta, Georgia 30309
404/870-8000
+ + *
E-2
3. STATUTE OF LIMITATIONS - CONTRIBU-
TION AND INDEMNITY
The Court charged that there was a 20 year statute
for contributions and indemnity. In the instant case all the
grounds set forth in the complaint are barred by the
statute of limitations for tort and contract. Even if there
were any liability upon a lawyer for contribution and
indemnity to his client because the client lost a jury trial,
it is obvious that a 20 year statute would mean that all
attorneys whose clients suffered money damages would
be fair game for a malpractice suit for contribution or
indemnity for 20 years after every case they tried. Such a
situation would be so intolerable to lawyers that most
clients would have a hard time finding an attorney to
represent them. The instant case involved a jury trial in
which Rolleston was neither a party nor attorney nor
witness.
In addition, contribution is only available to a joint
tort feasor and the claim that an attorney is liable for the
torts of a client has no basis in the law. (O.C.G.A. 51-12-13
(a)).
The trial court in this action charged the jury that it
could require Rolleston to indemnify the Estate without
regard to the standard of care or a finding of legal mal-
practice, and that the statute of limitations for such
claims was 20 years. (Transcript Excerpts; charges pages
28 and 25)
Over Rolleston’s exceptions to charge (Transcript
Excerpts, charges, page 1), the Court charged the follow-
ing:
E-3
af
. the plaintiffs also contend that they are
entitled to recover any loss suffered as a result
of the recovery of any losses suffered because of
the defendant’s negligence or other acts under
the theory of contribution or indemnity.
(emphasis added). And I charge you that ordi-
narily one person, if one person is compelled to
pay damages because of negligence imputed to
him or her as a result of a tort committed by
another, he or she may maintain an action over
for indemnity or contribution against the person
whose wrong has thus been imputed to him, but
this is subject to the proviso that no personal
negligence of his own has joined in causing the
MY a
“Now ladies and gentlemen, I further charge
you with respect to indemnity and contribution
from the defendant as follows: in order to
recover, ladies and gentlemen, on such a theory,
the plaintiff must prove as follows: that the
plaintiff has a legal liability to compensate a
third party for an injury; that the defendant is
responsible in whole or in part for the injury to
the third party. Consequently, the plaintiff has
the right to receive indemnification or contribu-
tion from the defendant to the extent of damage
for which the plaintiff has been found liable.”
(Transcript Excerpts, Jury charges, p. 23).
“I charge you that the statute of limitations for
contribution and indemnity is 20 years, and all
actions for enforcement of rights occurring to
individuals under the statute must be brought
within 20 years after the right of action accrues.
I further charge you that a claim for contribu-
tion based on tort does not accrue and the stat-
ute of limitations does not start to run until the
E-4
judgment is entered on the principal suit.”
(Transcript Excerpt, Jury charges, page 25).
It is interesting that the jury made the following
request:
“Can we have a recharge and/or explanation on
contribution and indemnity and its statute of
limitations?” (T102)
Then the jury awarded $5,200,000 to match the jury
verdict against the Cherry Estate of $3,800,000 plus inter-
est for four years.
In two recent medical malpractice cases this Court
has held that the basis of the complaint was professional
negligence even though the complaints were couched in
terms of indemnity and contribution. See Kraseath v.
Parker, 212 Ga. App. 525 (1994).
“Although the claim is couched as one for con-
tribution, but for the Statute of Repose would
have been timely, substance prevails over form.
(emphasis added). Recovery is predicted on
proof of Dr. Krasaeath’s professional negligence.
Plaintiff cannot be permitted to do indirectly
what the law does not permit her to directly.”
See Gwinnett Place Associates, L.P. v. Pharr Engineer-
ing, Inc., 215 Ga. App. 53 (1994)
“We hold, therefore, that despite being couched
in terms of indemnification, this claim, like the
contribution claim in Krasaeath, [sic] is within
the contemplation of the statute of repose.”
There may be no indemnity between client and attor-
ney where the client knows what is happening, knows
the facts, approves of the actions of the attorney and
E-5
thereby ratifies them. In the instant case the evidence was
conclusive that Cherry was aware of all material facts and
approved of all the actions of Rolleston, her attorney, as
shown by her affidavits, her depositions, her actions in
court, the Estate’s complaint (Paragraphs 39 through 41
and paragraph 59.) and the very words of the Judge who
presided at the final jury trial in February 1991.
* * +
F-1
APPENDIX F
IN THE COURT OF APPEALS OF THE
STATE OF GEORGIA
CASE NUMBERS
A97A0051 and
A97A0056
MORETON ROLLESTON, JR.
Appellant,
Vs.
ESTATE OF REBECCA WIGHT
CHERRY SIMS, JOHN
RANDOLPH CHERRY,
EXECUTOR
Appellee.
le
REPLY BRIEF OF APPELLANT
SULLIVAN, HALL, BOOTH & SMITH, P.C.
1360 Peachtree Street, N.E.
Suite 800
Atlanta, GA 30309
404-870-8000
Ill
It was error for the Court to charge the jury on
contribution and indemnity as a basis for the Defen-
dant’s liability and the twenty-year statute of limitation
thereon and to deny the Appellant’s Motions for Directed
Verdict on this issue.
Appellee suffered a $3.8 million verdict in the under-
lying action. In this legal malpractice action, over the
F-2
exceptions of counsel, the Court charged (and then
shortly before the verdict was rendered, recharged, (Tran-
script Vol. IV pages 559 and 560) that “(1), the Plaintiff
had a legal liability to compensate a third party for an
injury. (2), the Defendant is responsible in whole or in
part for the injury to the third party. (3), consequently the
Plaintiff has the right to receive indemnification or contri-
bution from the Defendant to the extent of the damages
for which the Plaintiff has been found liable. * * * No. 5,
the defendant shall be liable to indemnify the plaintiff in
the entire amount of the judgment if he is found to be
wholly responsible for the injury. When I say wholly
responsible, if the injury was caused by his acts, whether
it be malpractice or fraud, breach of fiduciary duty, .. . I
charge you that the statute of limitations for contribution
and indemnity is twenty years.” (Transcript Vol. IV, pages
559-560)
Prior to rendering its verdict, the jury specifically
requested and was given a recharge. (Exhibits Vol.IL, p.
1021) Both charge and recharge were excepted to. (Tran-
script, Vol.IV, p. 534, pp. 559-561.)
Given the Court’s charge, if accepted as the law of
Georgia, every verdict against a party allegedly the result
of legal malpractice or breach of fiduciary duty, etc. will
start the statute of limitations running with a twenty-year
time period.
There is no law on this subject in Georgia other than
this Court’s common sense. However, in Bunker v. Mac-
caro, 437 N.Y.S. 2d 326 (1981) an attorney representing a
party in a divorce proceedings was sued in a third-party
action for indemnity in connection with the settlement
F-3
agreement reached between husband and wife. The New
York court held “a third-party action does not become an
action for indemnity merely because the pleader has so
denominated it.” The court held the claim for indemnity
barred.
The only other case we have found is Griggs v. Nash,
775 P.2d 120 (Idaho, 1989) which was an action against an
attorney seeking indemnity or contribution based upon
an alleged breach of fiduciary relationship and negli-
gence. The court held the claim to be barred by the
statute of limitations in Idaho, two years, and not subject
to the longer statute of limitations in Idaho for contribu-
tion or indemnity.
Appellee cites Marchman v. Nelson, 251 Ga. 475 (1983)
(Brief, p. 22) for the proposition that the fact Appellant
was dismissed from the underlying suit does not prevent
the finding that he was a joint tortfeasor with Appellee.
(Appellee Brief, p. 22) However, Marchman acknowledges
the requirement that contribution or indemnity defen-
dants must be joint tortfeasors before saying that a set-
tling and dismissed defendant is still a joint tortfeasor as
there was no adjudication on the merits. Marchman, supra
at 477. In the underlying case, Appellant was granted
summary judgment (three times) and held not to be a
joint tortfeasor with Appellee.
IV.
Appellant’s Enumeration of Errors No. 10 mistakenly
claimed error that incorrect legal opinions do not consti-
tute negligence. While true, the error complained of is the
refusal to charge defen:'ants Request No. 55 (Record, p.
F-4
1568) which was expected to. (Record, p. 539) The argu-
ment is the same with regard to fraud.
Respectfully Submitted,
SULLIVAN, HALL, BOOTH
& SMITH, P.C.
/s/ Rush S. Smith, Jr.,
RUSH S. SMITH, JR., ESQ.
Georgia Bar Number 663362
Attorneys for Appellant
One Midtown Plaza, Suite 800
1360 Peachtree Street, N.E.
Atlanta, GA 30309 —
404/870-8000
/s/ Moreton Rolleston, Esq.
Moreton Rolleston, Esq.
Georgia Bar Number 613700
G-1
APPENDIX G
IN THE COURT OF APPEALS OF THE
STATE OF GEORGIA
CASE NUMBERS
A97A0051 and
A97A0056
MORETON ROLLESTON, JR.
Appellant,
vs.
ESTATE OF REBECCA WIGHT
CHERRY SIMS, JOHN
RANDOLPH CHERRY,
EXECUTOR
Appellee.
MOTION FOR RECONSIDERATION
SULLIVAN, HALL, BOOTH & SMITH, P.C.
1360 Peachtree Street, N.E.
Suite 800
Atlanta, GA 30309
404-870-8000
Iil.
Although the Court did choose to address the issue
with regard to contribution and indemnity, the Court
misapplied existing case law (Cherry v. Coasthouse Ltd.,
257 Ga. 403 (1987)) and completely failed to address the
important issue as to whether a lawyer can ever be ued
G-2
for contribution or indemnity by a client for claims aris-
ing from the representation. These issues were addressed
in the Appellant’s Brief, p. 20, incorporating pages 8
through 10 of the Reply Brief.
ee are ore is
What the Court has misunderstood in the Cherry v.
Coasthouse Ltd., supra [sic] opinion was explained .n the
Reply Brief to Appellee’s Motion to Dismiss in this action.
It is true that the trial court did not initially dismiss the
pending Yost claim against Mr. Rolleston. This is because,
at the time summary judgment was granted, Coasthouse
[sic] had amended its Complaint to assert yet an addi-
dunt d. Ql LF oie ioe
4
4 tional claim of liability against Mr. Rolleston, individu-
ally, which was not adjudicated on the first summary
: judgment. Because there was still one other claim, in
addition to the Yost claim, pending against Mr. Rolleston
at the time the Supreme Court decided that matter, the
: trial judge was affirmed because Mr. Rolleston was still a
party to that suit. This reasoning is conclusively proven
; because when the case was remanded, a subsequent sum-
mary judgment motion was filed and all other grounds
pending against Mr. Rolleston in the Coasthouse [sic] case
were dismissed, except for the Yost claim. Then, upon
further motion, the trial judge decided that since no other
claims were asserted against Mr. Rolleston other than the
Yost claim, it could not be brought against him since Yost
only applied to a party. And, Judge Eldridge reasoned,
since Mr. Rolleston was no longer a party in the litigation
except as a Yost defendant, then it could not be brought
against him. The Yost claim was then dismissed, prior to
Ms. Cherry’s death and prior to the subsequent dismissal
of the Coasthouse [sic] lawsuit and its refiling. (Note:
While not a part of the Record in this case, because of the
a a
G-3
Court’s apparent misunderstanding of the Appellant’s
Brief, the attached is offered, not for consideration by the
Court but to show that Appellant may have misremem-
bered the time of Judge Eldridge’s orders, he did not
materially misrepresent the overall outcome.) (See
Exhibit A, a copy of the February 9, 1989 Order of Judge
Frank M. Eldridge in Coasthouse [sic], et al. v. Cherry and
Rolleston, Civil Action No. D-27179. That is the reason
that Mr. Rolleston was not named as a party in the new
suit as, by that time, every claim pending against him
including the Yost claim had been adjudicated in his
favor. Hence, Mr. Rolleston could not be held to be a
joint-tortfeasor with Mrs. Cherry and cannot be required
to indemnify her estate.
* *
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.