Thomas v. Carlisle

346 S.E.2d 79, 179 Ga. App. 315, 1986 Ga. App. LEXIS 2616

• Court: Court of Appeals of Georgia
• Decided: May 22, 1986
• Docket: 71610
• Status: Published

Opinions

Benham, Judge.

Appellant brought this legal malpractice action against appellee, alleging that appellee’s representation of him in a criminal matter was negligent because appellee did not disclose that he was, at the same time, the City Attorney for the City of Cairo. This appeal is from the grant of summary judgment to appellee.

1. The trial court’s order granting summary judgment to appellee and denying appellant’s cross-motion for summary judgment recited that the trial court had taken judicial notice of the record of the criminal case in which appellee represented appellant and cited Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984), as authority for that action. Appellant asserts that the application of that authority to cases prosecuted by pro se litigants deprives such litigants of their right to access to the courts. Appellant does not, however, explain how his rights are violated by the trial court’s judicial notice of the record of another case, and we see no such violation. Nothing in the language of Petkas indicates that it is to be applied only to the records of civil cases, and we find no harm to appellant in the application of that case to this one.

2. Appellant’s enumeration of error concerning the denial of his petition for a writ of habeas corpus ad testificandum is not supported by argument or citation of authority and is, therefore, deemed abandoned. C & W Land &c. Corp. v. Kaminsky, 175 Ga. App. 774 (5) (334 SE2d 362) (1985).

3. Appellant has enumerated as error the trial court’s grant of appellee’s motion for summary judgment and the denial of appellant’s cross-motion. We find no error.

Appellant’s argument that appellee’s position of City Attorney for the City of Cairo created such an inherent conflict of interest that it demanded judgment in his favor is not in accord with recent pronouncements of the Supreme Court. In Hudson v. State, 250 Ga. 479 (1) (299 SE2d 531) (1983), in which defense counsel was also the solicitor of the state court, the Supreme Court held that a defendant must show an actual conflict of interest. Although appellant filed a brief in the trial court arguing the existence of such a conflict, that argument is not supported by any evidence in the record before us. Consequently, that argument must fail here as it did below.

In support of his motion for summary judgment, appellee filed his own affidavit to the effect that his representation of appellant complied with applicable standards of professional competence. Such an affidavit by a defendant in a legal malpractice action, if not contradicted by expert testimony, will authorize summary judgment for the defendant attorney. Since appellant offered in opposition only his own affidavit, which was largely conclusory in nature, appellee was entitled to judgment as a matter of law. Yates v. Carlisle, 171 Ga. App. 206 (319 SE2d 71) (1984).

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.