This is a discretionary appeal from the grant of new trial to CSX Transportation, Inc., a Virginia corporation in the interstate railroad business, from a jury verdict against it in a FELA case. The grant of the new trial was on the special grounds of conflict of interest between plaintiff’s counsel and an affiliated corporation to CSX; the basis of the alleged conflict in interest was that one of the counsel for the plaintiff had a partner who had represented CSX Intermodal, Inc., a Delaware corporation in the trucking business, in another unrelated case, unebeknownst to plaintiff’s counsel and which representation was not discovered until jury deliberation but which was prior to the verdict and judgment. Finding that the trial court erred as a matter of law in ruling on the special grounds for a new trial that had not been preserved by motion made prior to entry of judgment, we reverse, without the necessity of determining if there actually existed a conflict or if such conflict mandated a new trial. Accordingly, we vacate the order granting a new trial, reinstating the judgment.
On Wednesday, July 11, 2001, the trial commenced; on or before Friday, July 13, 2001, CSXT learned that a purported conflict of interest existed between Ms. Thomas as plaintiff’s co-counsel and her partner, Mr. Michael Goldman, in the large firm of Hawkins & Parnell. Goldman was representing CSX Intermodal, Inc. in separate litigation in which CSXT had been sued in what was, in reality, a Workers’ Compensation case against CSX Intermodal and not a valid suit against CSXT. On Friday, CSXT complained to plaintiff’s counsel about the alleged conflict but neither informed the trial court nor made a motion to the court. Although CSXT knew of the alleged conflict during trial, prior to the return of the verdict, and prior to the entry of judgment, it made no timely motion to disqualify counsel or to have the trial court take any corrective action. Even on Monday, July 16, 2001, when judgment was entered, CSXT remained silent and did not bring the issue before the trial court by motion. However, on July 27, 2001, for the first time in the motion for new trial as a special grounds, some fourteen days later, CSXT raised the issue of conflict of interest of counsel for the first time. On February 7, 2002, the trial court granted a new trial on this special ground of conflict of interest.
