# Opposition Brief — Rolleston v. Cherry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2324%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1107 ## Text 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. * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2324%3A2. Public record. Not legal advice.