Archive for July, 2013

18
Jul
13

Notary Statute Does Not Create Civil Claim Against Attorney

In Anthony v. American Gen. Fin. Servs., 287 Ga. 448, 697 S.E.2d 166 (2010), Georgia’s Supreme Court held that Georgia’s notary statute did not create a civil cause for violations of its criminal provisions.  That case involved a financial institution that allegedly overcharged for notary fees in violation of a statutory limit on such fees.

On July 16, the Court of Appeals applied Anthony to a claim against a lawyer.  In the case, a lawyer was accused of providing a bank forged guarantees that had been forged as part of a commercial real estate closing.  Although the bank had originally brought claims for legal malpractice, breach of contract and negligent misrepresentation, it dismissed those claims and pursued only a claim for “breach of public duty” under OCGA 51-1-6 by violating notary statute OCGA 45-17-8(d).  The attorneys then moved for summary judgment, relying on the Anthony decision.  The trial court agreed.

I swear!

Kim M. Jackson tried the legal malpractice issues and gave the closing argument[/caption]The Court of Appeals affirmed the trial court’s summary judgment. 

The case does stand for the proposition that a notary is free of potential liability if a signature that is not genuine is notarized.  The Court of Appeals stated that while a claim for negligent misrepresentation or legal malpractice might have been viable, those claims had been abandoned.  Since the plaintiff was proceeding solely on a claim arising out of a violation of the notary statutes, Anthony precluded such a civil claim.  Had a common law claim for fraud, negligence, or a similar general tort theory been pursued, the claim may have been potentially viable.

The attorneys in this case were represented by H. Lane Young and Kim M. Jackson.  Oral argument was handled by Kim M. Jackson.

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