Tucker v. Rogers

334 Ga.App. 58

778 S.E.2d 795

TUCKER et al.

v.ROGERS.

No. A15A0770.

Court of Appeals of Georgia.

Oct. 1, 2015.

Michael Glenn Frick, Madeline Jane Mitchell, Brunswick, for Appellant.

Linley Jones, Atlanta, Jennifer Suzanne Ivey, for Appellee.

Opinion

BARNES, Presiding Judge.

Alan David Tucker and Alan David Tucker, Esq., P.C., appeal the trial court's grant of partial summary judgment on liability to Tucker's former client James Rogers in this legal malpractice case. For the reasons that follow, we reverse.

“To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law.” (Citation omitted.) Duke Galish v. Arnall Golden Gregory,288 Ga.App. 75, n. 1, 653 S.E.2d 791 (2007). We view the evidence in the light most favorable to the respondent, as the non-moving party. Peters v. Hyatt Legal Servs.,211 Ga.App. 587, 592(2)(b), 440 S.E.2d 222 (1993).

So viewed, the evidence establishes without dispute that Rogers was on his motorcycle stopped at a stop sign on November 24, 2006, when a car turned onto the street where Rogers was waiting and struck him head-on. Rogers initially attempted to negotiate a settlement with the other driver's liability carrier but signed a contingency fee contract with Tucker on December 10, 2007 because he was dissatisfied with the carrier's $7,500 offer of settlement.

The contract provided that Rogers retained Tucker's firm “to prosecute, settle, compromise or litigate all claims arising” from the November 24, 2006 incident, “as a result of which [Rogers] may have an action for damages against [the other driver.]” It authorized Tucker “to fully investigate the facts and law relative to the Matter” and gave him “the discretionary right to determine whether or not it is feasible to pursue the Matter.” If Tucker determined it was feasible to pursue the claim, he would be entitled to a contingent fee of one-third of the sum recovered if the claim was settled before suit was filed, 40 percent if suit was filed, and 45 percent if any judgment was appealed or post-judgment collection proceedings were required. Tucker was not authorized to settle or compromise the client without Rogers' specific approval, and if a lawsuit did not end favorably, Rogers would owe no attorney fees to Tucker, although Rogers would remain responsible for paying fees and costs. Finally, the contract contained a disclaimer noting that Tucker had no control over the length of time it would take to reach a resolution of the case once he filed a lawsuit.

Rogers began obtaining treatment from a physician recommended by Tucker. After Rogers finished treating with that physician, Tucker sent a demand letter on October 3, 2008, to the other driver's insurer, offering to settle the claim for $100,000. The insurer countered with the same $7,500 it offered to Rogers before he hired Tucker. On October 21, 2008, about a month before the expiration of the statute of limitations, Tucker called Rogers' home number and found it had been changed, then called Rogers' cell phone number twice and Rogers did not answer. Tucker testified that although he had Rogers' work number in his file, he did not call it because it was a work number and “[r]ather than bother him at work,” he chose to write Rogers a letter instead and send it by regular mail.

In the letter, Tucker stated that the insurer had offered to settle the claim for $7,500 and advised Rogers that he thought the claim was worth more than that. He advised Rogers to decline the settlement offer and allow him to file suit. The letter continued,

However, the decision to file suit or take their offer is totally up to you. Please remember that the “Statute of Limitation” runs on your claims against [the other driver] on November 23, 2008. If you want me to file suit, you must authorize me to do so priorto November 23, 2008. Please advise me as to how you wish to proceed. I have tried to call you several times and have been unable to reach you.

Tucker made no further efforts to contact Rogers and did not hear back from him. He did not know for certain that Rogers had received the letter or whether Rogers was incapacitated in any way. The statute of limitation ran on November 24, 2008, without suit being filed. On December 15, 2008, Tucker testified, he picked up Rogers' file, “noticed [Rogers] hadn't called,” and closed it. Then, although he did not have Rogers' permission to settle the case, Tucker decided to contact the insurance adjuster to see if he “could at least get [Rogers] his $7500” since the statute had already run. Tucker sent the adjuster a letter on December 18, 2008, accepting her October 21, 2008, offer to settle Rogers' claims for $7,500. When asked why the insurer agreed to honor the settlement offer even though the statute of limitation had expired, Tucker theorized that perhaps the insurer did so due to Tucker's “long working relationship” with the adjuster.

Shortly afterward, someone from the insurance company called Tucker's office and asked his assistant if Rogers were married, and if so, was she a party to the settlement and for her name and social security number. The assistant tried calling the three telephone numbers in Rogers' file, and reached Rogers on his cell phone. The cell phone number was written on a post-it note in the file and had been in the file folder since the file was created on December 10, 2007. When Rogers asked why the assistant wanted the information, she responded that the insurance company had asked for it and she thought it had something to do with a check. Rogers asked the assistant what she was talking about, and she said all she knew was that the adjuster called and asked her for the name and social security number of Rogers' wife.

Rogers came to Tucker's office to ask about his case. Tucker told him he had a check “for $7,000 and some change,” but Rogers protested that the insurer had already offered him $7,500 and he would not take it, which is the reason he hired Tucker. Tucker then told Rogers that the statute of limitation had run and it was too late to file suit. Rogers testified that the first time he had ever seen Tucker's October 21, 2008, letter was the day he went to Tucker's office in December 2008. Rogers obtained a copy of his file and subsequently sued Tucker for legal malpractice, breach of fiduciary duty, breach of contract, punitive damages, and attorney fees under OCGA § 13–6–11.

Following discovery, Rogers moved for partial summary judgment as to liability for legal malpractice, based on two separate violations of the standard of care: (1) Tucker's failure to file suit before the expiration of the statute of limitations, and (2) Tucker's settlement of Rogers' claim without permission. Rogers further sought summary judgment as to proximate cause, arguing that Tucker's failure to file suit before the statute expired made Rogers lose his right to pursue a personal injury suit against the driver who hit him. Finally, Rogers sought summary judgment on the liability of the defendant in the underlying case, because Tucker had admitted that it was a clear liability case.

The trial court granted the motion for partial summary judgment and found no genuine issues of material fact regarding liability for legal malpractice, proximate cause, and liability of the other driver in the underlying personal injury case. On appeal, Tucker argues that the trial court erred on each of these issues.

1. To prevail on a claim for legal malpractice, the plaintiff must show three things: (1) that plaintiff employed the defendant attorney, (2) that the attorney failed to exercise ordinary care, skill and diligence, and (3) that this failure proximately caused damages to the plaintiff. Paul v. Smith, Gambrell & Russell,267 Ga.App. 107, 108(1), 599 S.E.2d 206 (2004). In this case, the parties do not dispute that Rogers hired Tucker to represent him in his personal injury claim, but Tucker argues on appeal that genuine issues of material fact exist for a jury to determine regarding the second and third prongs of the malpractice claim: whether his actions breached the standard of care and if so, whether the breach proximately caused damages to the plaintiff.

a. Tucker asserts that the trial court erred in granting summary judgment on the issue of legal malpractice because questions of fact exist for a jury to determine regarding whether he breached the standard of care by failing to file suit before the statute of limitation ran. Tucker also points out that Georgia's Code of Professional Responsibility alone does not determine liability in a legal malpractice action, and argues that, under the circumstances in this case, his failure to file suit before the statute of limitation expired did not make him strictly liable.

Both Tucker's expert and Rogers' expert agreed that an attorney should consult with a client before filing a lawsuit. As Tucker's assistant observed, “A lot of people don't want a lawsuit,” and so standard practice in Tucker's...