SECOND DIVISION MILLER, P. J., MERCIER and COOMER, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
October 7, 2020
In the Court of Appeals of Georgia A20A0846. PADGETT et al. v. COLLINS MOBILE HOME SALES, INC.
MILLER, Presiding Judge.
In this interlocutory appeal, Jeremy Todd Padgett and Todd Padgett Mobile
Home Sales, Inc. (collectively “Padgett”), appeal from the trial court’s order granting
Collins Mobile Home Sales, Inc.’s (“Collins”) motion to disqualify Padgett’s counsel.
On appeal, Padgett argues that the trial court (1) erred in its determination that Collins
had standing to raise the issue of disqualification; (2) erred by failing to consider
whether Collins waived its right to seek disqualification; and (3) erred by finding that
a particular statement made by Padgett’s counsel violated the Georgia Rules of
Professional Conduct without affording notice or the opportunity to be heard.
Because the trial court failed to consider whether Collins waived the opportunity to move for disqualification, we vacate the order of disqualification and remand the case
to the trial court to conduct a waiver analysis.
The record shows Padgett was an employee of Collins, a company that sells
new and used mobile homes and arranges the financing for the sale of mobile homes.
According to Collins, Jeremy Padgett created and formed his own company in 2018,
Todd Padgett Mobile Home Sales, Inc., and began diverting customers from Collins
to his company. Collins alleged that Jeremy Padgett, along with his agents or
employees, went to Collins’ headquarters and took numerous files including contracts
from 29 individual customers and also removed various office supplies and
equipment. Collins further alleged that Jeremy Padgett contacted a number of Collins’
customers to convince them to renege on their contracts with Collins and to purchase
mobile homes from his company.
Collins filed a complaint for an injunction and temporary restraining order
against Jeremy Padgett individually and as CEO of his company, and also against his
company, seeking a return of the property allegedly taken and to prohibit him from
contacting its customers. Collins subsequently amended its complaint, adding claims
for breach of fiduciary duty and loyalty and usurpation of a corporate opportunity,
and requesting a permanent injunction, punitive damages, and fees for litigation
2 expenses. Padgett, represented by William E. Callaway Jr. from the law firm of
Callaway, Neville & Brinson, answered the complaint and denied the accusations.
Collins later filed a motion to disqualify attorney Callaway and his law firm because
he and his firm had served as the closing attorney on many of its sales involving its
mobile homes and had also assisted Padgett in starting his company. Padgett objected
to the motion to disqualify, arguing in part that Callaway and his firm had never
represented Collins in any capacity.
Following the hearing, the trial court entered an order granting Collins’ motion
to disqualify Callaway and his law firm and determined that Callaway and his firm
had violated the Georgia Rules of Professional Conduct. Specifically, the trial court
found that Callaway had violated Rule 1.7, which prohibits a lawyer from
representing or continuing to represent a client if there is a significant risk that the
lawyer’s interest or the lawyer’s duty to another client or third person would
adversely affect the representation of the client. The trial court also found that
Callaway had violated Rule 1.9 by representing Padgett in a matter that was related
to his former representation of Collins and that Padgett’s interests were materially
adverse to Collins’ interests. The trial court further determined that Callaway had
violated Rules 3.3 (a) (1) and (4) by falsely asserting that he had never represented
3 Collins at any time with regard to any matter and that Callaway’s disqualification also
disqualified Callaway’s law firm under Rule 1.10. This interlocutory appeal followed.
1. Padgett argues that the trial court erred in granting the motion to disqualify
Callaway without first determining whether Collins waived its opportunity to move
for Callaway’s disqualification prior to granting the motion.1 We agree and conclude
that the trial court erred in granting the motion to disqualify Callaway without first
determining whether Collins waived the opportunity to move for Callaway’s
disqualification.
“We review a [trial] court’s decision on a motion to disqualify counsel for an
abuse of discretion.” Zelda Enterprises, LLLP v. Guarino, 343 Ga. App. 250, 253
(806 SE2d 211) (2017).
First, we recognize that the right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution. Indeed, disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, which inevitably causes delay. Furthermore, when an attorney is disqualified, the client may suffer the loss of time and money in finding new counsel and may lose the benefit of its longtime
1 We address Padgett’s enumerations of error in a different order than that which appears in the brief to this Court.
4 counsel’s specialized knowledge of its operations. Thus, because of the right involved and the hardships brought about, disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly.
(Citations and punctuation omitted.) Id. at 252-253. Consequently, we have held that
“[a] motion to disqualify should be made with reasonable promptness after a party
discovers the facts which lead to the motion. A failure to make a reasonably prompt
motion to disqualify may result in the conflict being waived.” (Citation omitted.)
Yates v. Dublin Sir Shop, Inc., 260 Ga. App. 369, 372 (2) (579 SE2d 796) (2003). We
have also held that “[i]n determining whether to disqualify, the [trial] court must
consider the length of the delay in light of the circumstances of the particular case,
weighing these factors against the seriousness of the conflict alleged and the extent
to which public confidence in the administration of justice might be affected were the
motion denied.” (Emphasis supplied.) Id. See also Zelda Enterprises, LLLP, supra,
343 Ga. App. at 253-254 (“In considering if a waiver to file a motion to disqualify has
occurred, the trial court must consider four factors: (1) the length of the delay in light
of the circumstances of the case, including when the movant leaned of the conflict;
(2) whether the movant had counsel during the delay; (3) the cause of the delay; and
(4) whether disqualification would cause prejudice to the nonmoving party.
5 Additionally, the [trial] court must weigh these factors against the seriousness of the
conflict alleged and the extent to which the public’s confidence in the administration
of justice would be eroded if the motion was denied.”) (citations and punctuation
omitted).
Here, although the trial court determined that Collins did not waive the right
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SECOND DIVISION MILLER, P. J., MERCIER and COOMER, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
October 7, 2020
In the Court of Appeals of Georgia A20A0846. PADGETT et al. v. COLLINS MOBILE HOME SALES, INC.
MILLER, Presiding Judge.
In this interlocutory appeal, Jeremy Todd Padgett and Todd Padgett Mobile
Home Sales, Inc. (collectively “Padgett”), appeal from the trial court’s order granting
Collins Mobile Home Sales, Inc.’s (“Collins”) motion to disqualify Padgett’s counsel.
On appeal, Padgett argues that the trial court (1) erred in its determination that Collins
had standing to raise the issue of disqualification; (2) erred by failing to consider
whether Collins waived its right to seek disqualification; and (3) erred by finding that
a particular statement made by Padgett’s counsel violated the Georgia Rules of
Professional Conduct without affording notice or the opportunity to be heard.
Because the trial court failed to consider whether Collins waived the opportunity to move for disqualification, we vacate the order of disqualification and remand the case
to the trial court to conduct a waiver analysis.
The record shows Padgett was an employee of Collins, a company that sells
new and used mobile homes and arranges the financing for the sale of mobile homes.
According to Collins, Jeremy Padgett created and formed his own company in 2018,
Todd Padgett Mobile Home Sales, Inc., and began diverting customers from Collins
to his company. Collins alleged that Jeremy Padgett, along with his agents or
employees, went to Collins’ headquarters and took numerous files including contracts
from 29 individual customers and also removed various office supplies and
equipment. Collins further alleged that Jeremy Padgett contacted a number of Collins’
customers to convince them to renege on their contracts with Collins and to purchase
mobile homes from his company.
Collins filed a complaint for an injunction and temporary restraining order
against Jeremy Padgett individually and as CEO of his company, and also against his
company, seeking a return of the property allegedly taken and to prohibit him from
contacting its customers. Collins subsequently amended its complaint, adding claims
for breach of fiduciary duty and loyalty and usurpation of a corporate opportunity,
and requesting a permanent injunction, punitive damages, and fees for litigation
2 expenses. Padgett, represented by William E. Callaway Jr. from the law firm of
Callaway, Neville & Brinson, answered the complaint and denied the accusations.
Collins later filed a motion to disqualify attorney Callaway and his law firm because
he and his firm had served as the closing attorney on many of its sales involving its
mobile homes and had also assisted Padgett in starting his company. Padgett objected
to the motion to disqualify, arguing in part that Callaway and his firm had never
represented Collins in any capacity.
Following the hearing, the trial court entered an order granting Collins’ motion
to disqualify Callaway and his law firm and determined that Callaway and his firm
had violated the Georgia Rules of Professional Conduct. Specifically, the trial court
found that Callaway had violated Rule 1.7, which prohibits a lawyer from
representing or continuing to represent a client if there is a significant risk that the
lawyer’s interest or the lawyer’s duty to another client or third person would
adversely affect the representation of the client. The trial court also found that
Callaway had violated Rule 1.9 by representing Padgett in a matter that was related
to his former representation of Collins and that Padgett’s interests were materially
adverse to Collins’ interests. The trial court further determined that Callaway had
violated Rules 3.3 (a) (1) and (4) by falsely asserting that he had never represented
3 Collins at any time with regard to any matter and that Callaway’s disqualification also
disqualified Callaway’s law firm under Rule 1.10. This interlocutory appeal followed.
1. Padgett argues that the trial court erred in granting the motion to disqualify
Callaway without first determining whether Collins waived its opportunity to move
for Callaway’s disqualification prior to granting the motion.1 We agree and conclude
that the trial court erred in granting the motion to disqualify Callaway without first
determining whether Collins waived the opportunity to move for Callaway’s
disqualification.
“We review a [trial] court’s decision on a motion to disqualify counsel for an
abuse of discretion.” Zelda Enterprises, LLLP v. Guarino, 343 Ga. App. 250, 253
(806 SE2d 211) (2017).
First, we recognize that the right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution. Indeed, disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, which inevitably causes delay. Furthermore, when an attorney is disqualified, the client may suffer the loss of time and money in finding new counsel and may lose the benefit of its longtime
1 We address Padgett’s enumerations of error in a different order than that which appears in the brief to this Court.
4 counsel’s specialized knowledge of its operations. Thus, because of the right involved and the hardships brought about, disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly.
(Citations and punctuation omitted.) Id. at 252-253. Consequently, we have held that
“[a] motion to disqualify should be made with reasonable promptness after a party
discovers the facts which lead to the motion. A failure to make a reasonably prompt
motion to disqualify may result in the conflict being waived.” (Citation omitted.)
Yates v. Dublin Sir Shop, Inc., 260 Ga. App. 369, 372 (2) (579 SE2d 796) (2003). We
have also held that “[i]n determining whether to disqualify, the [trial] court must
consider the length of the delay in light of the circumstances of the particular case,
weighing these factors against the seriousness of the conflict alleged and the extent
to which public confidence in the administration of justice might be affected were the
motion denied.” (Emphasis supplied.) Id. See also Zelda Enterprises, LLLP, supra,
343 Ga. App. at 253-254 (“In considering if a waiver to file a motion to disqualify has
occurred, the trial court must consider four factors: (1) the length of the delay in light
of the circumstances of the case, including when the movant leaned of the conflict;
(2) whether the movant had counsel during the delay; (3) the cause of the delay; and
(4) whether disqualification would cause prejudice to the nonmoving party.
5 Additionally, the [trial] court must weigh these factors against the seriousness of the
conflict alleged and the extent to which the public’s confidence in the administration
of justice would be eroded if the motion was denied.”) (citations and punctuation
omitted).
Here, although the trial court determined that Collins did not waive the right
to move for Callaway’s disqualification, it apparently did so by applying the Rules
of Professional Conduct. Specifically, the trial court concluded, “[i]n this matter,
Collins never waived any conflict nor would it be permitted to do so in these
circumstances. See Rule 1.7 (c) (2) of the Georgia Rules of Professional
Responsibility.” In an identical situation in Zelda Enterprises, LLLP, we explained
that “although our cases speak in terms of waiving the conflict of interest, it is clear
that what we mean is the waiver of the right to move for disqualification due to the
alleged conflict of interest.” Id. at 254 n. 15. Thus, the trial court failed to consider
whether Collins waived the opportunity to move for disqualification. “And without
findings of fact and conclusions of law on this potentially dispositive question, we
cannot determine whether the trial court abused its discretion in granting the motion
to disqualify. Accordingly, we vacate the order of disqualification and remand to the
trial court for it to conduct the waiver analysis discussed supra.” Id. at 254 (vacating
6 and remanding the trial court’s order disqualifying counsel where the trial court failed
to consider whether the appellees waived the opportunity to move for
disqualification).
2. Padgett further argues that the trial court erred by determining that Collins
had standing to raise the issue of disqualification and that the trial court erred by
determining that a statement made by Callaway violated the Rules of Professional
Conduct. In light of our holding in Division 1, however, we decline to address these
enumerations of error. See Zelda Enterprises, LLLP, supra, 343 Ga. App. at 252
(declining to address the appellant’s remaining arguments regarding the trial court’s
grant of the motion to disqualify, where the trial court failed to address the issue of
waiver of the right to move for disqualification).
Judgment vacated and case remanded with direction. Mercier and Coomer, JJ.,
concur.