TATYANA ELLIS v. DAVID EDWARD OLES ( 2022 )

FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and PINSON, 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
May 16, 2022
In the Court of Appeals of Georgia
A22A0440. ELLIS v. OLES et al.
MCFADDEN, Presiding Judge.
This case arises from a dispute about an attorney’s representation of the
appellant in a domestic relations matter. Appellant Tatyana Ellis appeals from an
order granting summary judgment to her former attorney, David Oles, and his law
firm, rejecting her tort claims against them and entering a judgment against her on
their counterclaim for fees. Ellis has not shown reversible error. So we affirm.
1. Factual background.
Ellis hired Oles to represent her in certain domestic relations matters. The
engagement was terminated less than six months later.
Ellis filed the instant action against Oles and his law practice (together “Oles”),
alleging intentional breaches of fiduciary duty and fraud. Oles filed a counterclaim
for breach of contract, seeking more than $25,000 in unpaid fees as well as the
recovery of litigation expenses.
The parties filed cross-motions for summary judgment. The trial court granted
Oles’s motion and denied Ellis’s motion. Ellis then filed this direct appeal.
2. The order granting summary judgment was subject to direct appeal.
Ellis argues that the trial court erred by labeling the summary judgment order
“final” because an issue remains pending below: the amount of litigation expenses to
be awarded to Oles. And because the summary judgment order is not a final order,
Ellis argues, the order was not subject to direct appeal, we lack jurisdiction, and we
must remand the case to the trial court. We disagree.1
Regardless of whether the order was final, we nonetheless have jurisdiction
over the appeal. Under OCGA § 9-11-56 (h), orders granting summary judgment,
even if issues remain pending, are directly and immediately appealable. Nugent v.
Myles, 350 Ga. App. 442, 444 (1) n.4 (829 SE2d 623) (2019). See also Edokpolor,
302 Ga. at 735 n.1 (“It is undisputed that the plaintiffs could have immediately
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We previously denied Ellis’s motions to remand or dismiss her appeal on this
ground. We noted that should Ellis choose not to pursue her appeal, she could file a
motion for permission to withdraw it pursuant to Court of Appeals Rule 41 (g) (1),
which we would consider in due course after allowing Oles time to respond. As of
March 14, 2022, Ellis had not filed a motion for permission to withdraw her appeal.
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appealed the order that granted summary judgment to [defendant] even though the
issue of expenses remained pending.”) (emphasis omitted). Contrary to Ellis’s
assertion, we have jurisdiction over this appeal.
3. Lack of a hearing.
Ellis argues that the trial court erred by ruling on the summary judgment
motions without conducting a hearing. We disagree.
In March 2020, Ellis filed a pleading entitled, “Motion to Request Leave of
Court to File a Sur Reply to Defendants[‘] Reply to Plaintiff’s Opposition to
Summary Judgment or in the Alternative Grant an Oral Hearing on the Matter of
Summary Judgment,” in which she requested “leave of court to request an oral
hearing” on the cross-motions for summary judgment. After postponements, the trial
court ultimately scheduled a hearing on the cross-motions for summary judgment for
December 14, 2020. But on December 9, Ellis filed a notice of appeal of an earlier
order, so the trial court, with the parties’ consent, stayed all proceedings effective that
date and cancelled the scheduled hearing.
We dismissed that appeal because of Ellis’s failure to follow the interlocutory
appeal procedure. Less than three months later, without having conducted a hearing,
the trial court entered the order on the cross-motions for summary judgment.
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A trial court shall permit oral argument on a motion for summary judgment
upon written request made in a separate pleading bearing the caption of
the case and entitled “Request for Oral Hearing.” Uniform Superior
Court Rule 6.3. We have held before that the failure to hold a hearing on
a motion for summary judgment is not error if the party requesting a
hearing fails to comply with Uniform Superior Court Rule 6.3, which
requires that any such request be made by a separate and distinct
pleading.
Grot v. Capital One Bank (USA), 317 Ga. App. 786, 792 (5) (732 SE2d 305) (2012)
(citation and punctuation omitted). Ellis has not shown by the record that, after the
trial court cancelled the scheduled hearing—in accordance with the parties’ consent
to stay all proceedings—she complied with Uniform Superior Court Rule 6.3 by filing
a “written request made in a separate pleading bearing the caption of the case and
entitled ‘Request for Oral Hearing’ . . . . “ Grot, 317 Ga. App. at 792 (5) (citation and
punctuation omitted). So she has not shown that the trial court erred by failing to
conduct a hearing on the cross-motions for summary judgment. Cf. Holladay v.
Cumming Family Medicine, 348 Ga. App. 354, 355 (823 SE2d 45) (2019) (appellant
had the right to rely on a summary judgment hearing date, scheduled in trial court’s
rule nisi upon appellee’s request for a hearing, until the trial court vacated or
withdrew the rule nisi).
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4. Motion for recusal.
Ellis argues that the trial court erred by construing her motion to recuse, filed
three days after the trial court had denied her original motion to recuse, as a motion
for reconsideration. Had the trial court properly considered the motion as a motion
to recuse, according to Ellis, the trial court would have considered new facts. Ellis
does not describe what facts she contends the trial court should have, but did not,
consider. She has not shown reversible error.
Ellis also enumerates that the trial court erred by failing to take “all of [her]
arguments as true and [to] evaluat[e] them pursuant to a fair-minded person in ruling
on [her] motion for recusal.” Uniform Superior Court Rule 25.3 does require a judge,
when determining whether recusal is warranted, to assume as true the facts alleged
in an affidavit accompanying a motion to recuse. Unif. Sup. Ct. R. 25.3. But Ellis fails
to describe the facts alleged in the affidavit that she contends the trial court did not
consider as true. And in accordance with the presumption of regularity, we must
presume that the trial court properly performed her duty. Westmoreland v. State, 287
Ga. 688, 696-697 (10) (699 SE2d 13) (2010). Ellis has not rebutted this presumption.
Ellis’s “enumeration[] and brief do not point to distinct errors of law and do not set
forth cogent argument and citation of authorities.” Austin v. Cohen, 251 Ga. App. 5485
(554 SE2d 312) (2001) (citations and punctuation omitted). So Ellis has not shown
reversible error. Id. at 548-549.
5. Trial court’s alleged argumentative conduct.
Ellis enumerates that the trial court erred when “it engaged in argumentative
conduct in responding to summary [judgment].” She argues that “[w]hen the [t]rial
[c]ourt responded to [her] first motion for summary [judgment], by altering, omitting,
and/or recasting [her] pleadings/allegations in her [o]rder on recusal, the [c]ourt
engaged in argumentative conduct contrary to the Rules of USCR 25.” Ellis does not
explain how the trial court’s order denying her motion to recuse had any bearing on
the order on summary judgment. She has not shown reversible error.
6. Expert affidavit.
Ellis argues that the trial court erred by striking her expert affidavit absent a
finding that she had failed to comply with a court order or had failed to supplement
her discovery responses. Pretermitting whether the trial court erred by failing to
consider the affidavit, Ellis has not shown harm.
The trial court declined to consider Ellis’s expert affidavit because Oles “had
no opportunity to respond,” and because Ellis submitted the affidavit after she had
filed her motions for summary judgment and without obtaining leave of court.
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But Ellis filed the affidavit as an exhibit to her brief “in opposition of Oles’s
motion for summary judgment” in which she argued that Oles was not entitled to
summary judgment on either her claims or his counterclaims. (Emphasis supplied.)
We are not aware of a deadline for filing affidavits in opposition to summary
judgment when no hearing is scheduled. Cf. SJN Properties, LLC v. Fulton County
Bd. of Assessors, 296 Ga. 793, 796 (1) (770 SE2d 832) (2015) (“OCGA § 9-11-56 (c)
authorizes a party against whom a summary judgment motion has been filed to serve
affidavits in opposition to the motion at any time ‘prior to the day of hearing.’”). And
a trial court abuses “its discretion by excluding a witness solely because the witness
was identified after the deadline set in a scheduling, discovery, and/or case
management order,” including in the context of summary judgment. Lee v. Smith, 307
Ga. 815, 823 (2) (838 SE2d 870) (2020) (overruling Moore v. Cottrell, Inc., 334 Ga.
App. 791, 794 (2) (780 SE2d 442) (2015), to the extent it held that the trial court did
not abuse its discretion by striking an expert affidavit submitted in opposition to
summary judgment solely because the plaintiffs identified the expert witness after the
deadline in the trial court’s scheduling order).
But assuming for purposes of this appeal that the trial court erred in excluding
the affidavit of her expert witness, Ellis has not shown that the exclusion was
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harmful. The affidavit concerned two issues: Oles’s alleged breach of the minimum
requisite standard of care in handling a deposition and Oles’s alleged overbilling.
As for the expert’s averments about the breach of the standard of care relating
to the deposition, in her amended complaint, Ellis alleged that Oles committed
intentional breaches of fiduciary duties (aggravated by fraud) by failing to attend the
scheduled deposition without obtaining a protective order from the court. (Ellis
consistently has asserted that all of her allegations of breaches of fiduciary duty are
allegations of intentional torts, not malpractice, and she did not file an expert affidavit
as required under OCGA § 9-11-9.1 to support malpractice complaints.)
But Oles and his law practice presented evidence—attorney Oles’s own
testimony—that he never acted with the intent to breach any duties owed to Ellis. And
in his affidavit, Ellis’s expert does not testify whatsoever about Oles’s intent. See
generally SJN Properties, 296 Ga. at 796 (1) (considering erroneously struck
affidavits in de novo appellate review of the evidence in affirming summary
judgment). So Ellis has not shown that the expert affidavit created a question of
material fact on her claims for intentional breaches of fiduciary duties.
Nor does the affidavit create a question of material fact on Ellis’s claim that
Oles overbilled her. The expert refers in his affidavit to having reviewed
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“documentation,” including “the billing and evidence provided by [Ellis],” and
concludes that the amount of time Oles spent on certain, specific tasks is
unreasonable. But he attaches to his affidavit none of the documentation, billing, or
evidence upon which he relied to reach his conclusion; he does not refer to specific
documents; and there is no indication that the documents upon which he relied were
served with the affidavit. (We observe that included in Ellis’s 817-page filing in
opposition to Oles’s summary judgment motion—the filing that included the expert’s
affidavit—are some documents that may be billing statements and invoices, but they
are included without context or identifying information; it is not clear that they are
the documents to which the expert refers.)
OCGA § 9-11-56 (e) requires that copies of all papers referred to in an affidavit
shall be attached to the affidavit or served therewith. “Where records relied upon and
referred to in an affidavit are neither attached to the affidavit nor included in the
record and clearly identified in the affidavit, the affidavit is insufficient.” Taquechel
v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991) (citation omitted).
“Since the records were not attached to the [expert’s] affidavit or otherwise identified
by their location in the evidence admitted of record, the references to these records
cannot be used to contest the summary judgment motion.” Lance v. Elliott, 202 Ga.
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App. 164, 167 (413 SE2d 486) (1991). “While the documents and information
reviewed by [the expert] may be part of the record, the specific documents and
information relied upon were not listed or otherwise identified in [the] affidavit.
Accordingly, the affidavit[ ] lack[s] probative value [on this issue].” Demere Marsh
Assocs., LLC v. Boatright Roofing & Gen. Contracting, 343 Ga. App. 235, 244 (1)
n.6 (808 SE2d 1) (2017).
So the expert’s affidavit does not create an issue of fact sufficient to defeat
Oles’s entitlement to summary judgment, and any trial court error in refusing to
consider the affidavit was not harmful.
7. Alleged failure to incorporate facts.
Ellis argues the trial court erred by failing to incorporate any of the facts
asserted in her verified “Plaintiff’s Sur Reply to Defendants Response to Plaintiff’s
Opposition to Defendants Motion for Summary Judgment.” She fails to point to
record citations of specific items of evidence that she contends create a question of
material fact. She has thus not shown error.
8. Summary judgment.
Ellis argues that the trial court erred in awarding Oles attorney fees because
Oles “never apprised her of her legal rights regarding attorney fees in Georgia.” She
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does not dispute that she signed a binding contract engaging Oles, which outlined the
fees that would be charged for representing her and explicitly stated that she would
be obligated to pay attorney fees and costs Oles incurred in pursuing collection
efforts. And she points to no law imposing a requirement upon an attorney to
“apprise[ a client] of her legal rights regarding attorney fees” in order for a contract
for legal services to be enforceable. Ellis has not shown reversible error.
Judgment affirmed. Gobeil and Pinson, JJ., concur.
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