In 2018, Francis McQueen hired Clarence Long to represent her in a medical malpractice action against a nursing home. Specifically, McQueen alleged that professional negligence by employees of the facility resulted in her husband’s death. Long filed the nursing home malpractice action in March 2018, but the case was dismissed on October 3, 2019, allegedly on the ground that the complaint failed to include the required expert affidavits.
McQueen filed a legal malpractice lawsuit against Long, alleging Long breached a fiduciary duty when he failed to competently represent her in the earlier nursing home malpractice suit. Long answered and moved to dismiss the complaint, arguing that it failed to include an expert affidavit as required by OCGA § 9-11-9.1. One week later, McQueen moved to disqualify Long’s counsel on the ground that he had also represented her as Long’s co-counsel in the medical malpractice suit. The trial court granted McQueen’s motion to disqualify Long’s counsel and, shortly thereafter, granted Long’s motion to dismiss. McQueen appealed the dismissal.
On appeal, McQueen contended that the trial court erred by failing to issue a written order dismissing the case, granting the motion to dismiss after disqualifying Long’s counsel, and dismissing her complaint for failure to include an expert affidavit.
The Court of Appeals of Georgia stated in its September 23, 2024 opinion: “we agree the trial court correctly ruled on the motion to disqualify Long’s counsel before ruling on Long’s motion to dismiss McQueen’s complaint for failure
to attach an expert affidavit. But despite disqualifying Long’s counsel, the court then proceeded to rule on the dispositive motion filed by that same disqualified counsel. Even so, given the rather cursory nature of the trial court’s ruling on Long’s motion to dismiss, we are unable to discern if it considered the implications of ruling on a motion filed by disqualified counsel or if circumstances not apparent in the appellate record rendered such considerations unnecessary. For instance, given that Long is represented in this appeal by different counsel, had this counsel been substituted prior to the trial court’s ruling on the motion to dismiss? Or did the trial court believe the disqualification was not a cause for great concern in ruling on a dispositive motion that exclusively relied on pleadings?”
“Answering these questions is, of course, not our remit, as we are “a court of review, not of first view.” As a result, we may remand a case for “further factual findings when the trial court’s order lacks sufficient detail to enable meaningful
appellate review.” And this is such a case. So, given that the trial court’s ruling granting Long’s motion to dismiss does not allow us to determine if it considered the implications of such a ruling despite previously disqualifying the counsel who filed it, we vacate and remand for the trial court to address this issue in the first instance.”
Source McQueen v. Long, A24A1165.
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