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Zelda Enterprises, LLLP et al. v. Guarino et al.

In granting appellees' motion to disqualify appellants' counsel, the trial court failed to first assess whether appellees waived the opportunity to move for disqualification of counsel before granting the motion; accordingly, the Court vacated the order granting the motion and remanded for further proceedings.

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Dillard, Chief Judge.Zelda Enterprises, LLLP, Tony Lamar McCall, and Gene Arlon McCall, Sr. (“appellants”) appeal from the trial court’s grant of a motion to disqualify counsel, which was filed by Tracy McCall Guarino, Angie McCall Sumpter, and Charles Wesley McCall, Jr. (“appellees”) in the underlying action between the parties. The appellants argue that the trial court committed reversible error in granting the motion by (1) applying Rule 1.6 and Rule 1.7 (c) (2) of the Rules of Professional Conduct to find that there was a conflict of interest between the appellants’ counsel and the appellees; (2) failing to assess whether the appellees waived the opportunity to move

for disqualification of counsel; (3) failing to consider the harm that the appellants would suffer by the disqualification of counsel; and (4) adopting the facts as presented by the appellees’ proposed order, and admitting evidence that was presented in the context of a proposed settlement. Because the trial court failed to first assess whether the appellees waived the opportunity to move for disqualification of counsel before granting the motion, we vacate the trial court’s order and remand for further proceedings consistent with this opinion.This Court attempted to transfer this case to the Supreme Court of Georgia consistent with what was, at the time, that court’s jurisdiction over cases in equity.[1] But our Supreme Court determined that jurisdiction was more properly in this Court

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