Tracy L. Rescigno filed the underlying suit for wrongful eviction and the recovery of personalty against Bizhan Vesali alleging her status as a tenant at will incident to an oral lease. Shortly thereafter Rescigno moved to disqualify Vesali’s attorney, Louis Richard Cohan and Weinstock & Scavo “W&S” or the “firm”, Cohan’s law firm, because Adam M. Gleklen, also of W&S, represented Rescigno in defense of a legitimation and custody complaint filed against her by Michael Massa, the father of Rescigno’s son, which was simultaneously pending in the trial court before another judge. Following the trial court’s denial of Rescigno’s motion to disqualify, Vesali filed his answer denying the material allegations of the complaint and, upon the claim that Rescigno and her children had been his house guests, admitted barring Rescigno from his residence and causing her personalty to be removed therefrom. After an attempt at court-ordered mediation failed, the matter proceeded to a trial which resulted in a jury verdict for Vesali. The trial court’s entry of judgment thereon followed. In Case No. A10A1351, Rescigno appeals from the trial court’s order denying her motion for new trial, contending that the trial court erred i in failing to disqualify Cohan and W&S because Gleklen and W&S also represented her in the legitimation/custody dispute, ii in admitting prejudicial and non-probative testimony regarding her relationship with Massa and the fact of the custody litigation between them, and iii in allowing Vesali to present to the jury portions of the deposition of Annette M. Anochie absent a sufficient showing of unavailability pursuant to OCGA § 9-11-32 a 3 C. By his cross-appeal, Case No. A10A1352, Vesali contends that the trial court erred in denying him attorney fees and expenses under OCGA § 9-15-14. Discerning no error, we affirm both cases.
Viewed in the light most favorable to the jury’s verdict Vega v. La Movida, Inc ., 294 Ga. App. 311 670 SE2d 116 2008, the evidence shows that the legitimation/custody dispute arose between the parties because Massa fathered one Rescigno’s children out of wedlock. When Rescigno’s relationship with Massa broke down, Rescigno and the children moved out of his home. Vesali, who before purchasing his own residence had also lived in Massa’s home, allowed Rescigno and her two minor children, to move in with him as his guest. When Rescigno thereafter went to Florida to participate in a tennis tournament, Vesali, with Rescigno’s consent, placed her property in storage at his expense and locked her out. Vesali testified that he had not understood the legal significance of status as tenant and for that reason dismissed the dispossessory warrant which he had earlier filed against Rescigno. Prior to trial, Rescigno moved to disqualify Vesali’s counsel, as above, and in limine to exclude any evidence of her relationship with Massa and the pendency of the above-referenced legitimation/custody dispute, which motions the trial court denied. Rescigno thereafter filed the instant wrongful eviction action. At trial, the trial court, over Rescigno’s objection upon the claim that Vesali failed to show her unavailability pursuant to OCGA § 9-11-32 a, 3 C, allowed the admission in evidence of portions of Anochie’s deposition. The jury later returned its verdict for Vesali.
