Archive for the 'Professional Negligence' Category


Kim Jackson and Sarge “Win” Trial in Floyd County

Facts MeaninglessKim M. Jackson, Partner at Bovis Kyle Burch & Medlin, LLC, and local Rome counsel J. Anderson (Andy) Davis (aka “Sarge”) of Brinson Askew Berry Seigler Richardson & Davis, LLP, tried an accounting malpractice claim to victory in the Superior Court of Floyd County during the week of March 2, 2015.

The jury returned a verdict of only $6,195.00 for the Plaintiffs against one of Rome, Georgia’s largest CPA firms.  The claim arose out of an allegation by the Plaintiffs that they had overpaid certain taxes in 2004, and had to pay to amend returns in 2005-2007, as a result of an alleged error by the CPA firm. 

Plaintiffs’ asserted actual damages of over $70,000.   Plaintiffs also presented an OCGA 13-6-11 claim for attorney fees and expenses of litigation of nearly $300,000, which the jury rejected in its entirety.  The verdict was limited to the fees necessary to amend the 2005-2007 tax returns, which resulted in a refund without audit.  The jury clearly rejected the professional negligence claims against the accounting firm. 

This was actually the second trial of this case.  The first trial resulted in a jury verdict for the Defendant, after which the Judge granted a motion for new trial. 

A motion for fees by the Defendant pursuant to OCGA 9-11-68 is expected.

Kim Jackson was quoted after the trial as saying, “Of the non-metro Atlanta cities in Georgia in which I have tried cases, Rome has been my favorite.”


HPTY Adds To SuperLawyers

The tights of justice are a bit tingly.

Numerous Hawkins Parnell Thackston & Young, LLP attorneys were added to the Georgia SuperLawyers for 2012.  Named specifically in the Professional Liability Defense category were Kim M. Jackson and Christine L. Mast

Other HPTY attorneys that belong in the Attorney Defender category who were named SuperLawyers (but primarily identified in other categories) were H. Lane Young, IIT. Ryan Mock, Jr. and Michael J. Goldman

SuperLawyers also named multiple HPTY attorneys as Rising Stars, including Attorney Defenders Matthew F. Barr and M. Elizabeth O’Neill.

Kim M. Jackson was named one of the Top 100 Lawyers in Georgia.

Christine L. Mast was  named one of the Top 50 Women Lawyers in Georgia.

H. Lane Young, II and Christine L. Mast were also named to the Best Lawyers In America, 2012 in the categories of Professional Malpractice Law and Legal Malpractice Law, respectively.  They were two of fourteen HPTY attorneys named to Best Lawyers in America, 2012.


If it quacks like a duck …

A number of cases have found exceptions to the application of OCGA 9-11-9.1 in lawsuits against professionals, e.g., this one.  The primary exception is the allegations of “intentional” torts such as fraud or breach of fiduciary duty. 

I know ducks and sailors when I see them!

In a recent Court of Appeals decision, the trial court dismissed a lawsuit against a law firm on the basis that the Plaintiff failed to include an affidavit of merit as required by OCGA 9-11-9.1 even though the complaint alleged fraud, RICO and negligent misrepresentation.  This was not a change in the law however.  The Court held that although Plaintiff labeled his claims as intentional torts, the asserted facts alleged solely professional negligence claims.

Significantly, all of the allegations in [Plaintiff’s] complaint … concern [Defendants’] legal advice and actions taken as [Plaintiff’s] legal representative in the underlying lawsuit and bankruptcy.  …  Although [Plaintiff’s] complaint purports to state various causes of action, the substance of his allegations raise only claims of professional negligence against [Defendants].

The Court further held that the allegations in the Complaint failed to state a claim of fraud.  The new case was defended by Hawkins Parnell Thackston & Young, LLP, including the author here

At times, the distinction between what claims must comply with OCGA 9-11-9.1 seem trivial.  Nonetheless, there is case law that provides for a basis of obtaining dismissal despite the effort to raise intentional torts as exceptions to the affidavit of  merit statute. 

This opinion provides the first legal malpractice application of the holding in Goodin v. Gwinnett Health Sys., Inc., 273 Ga. App. 461, 615 S.E.2d 129 (2005).  In that case, the Court of Appeals held that OCGA 9-11-9.1 applied to an intentional tort claim of false imprisonment against a psychiatrist where the basis for the claim was the application of medical judgment in having a patient committed.

An argument may be made that despite labeling claims as something other than professional negligence or malpractice, OCGA 9-11-9.1’s affidavit requirement still applies where the alleged facts assert only a claim based on the application of professional judgment.  If it walks like a duck and quacks like a duck ….


What Was Newell Is Now Old Again?

Recycling: turning trash into ... garbage.

As discussed here, a recent professional negligence case against an engineering firm threatened to affect the previously (apparently) settled law that a legal malpractice claim was always subject to the four-year statute of limitations applicable to oral contracts.  See, Newell Recycling of Atlanta, Inc. v. Jordon Jones & Goulding, 288 Ga.  (2010).  On June 1, 2011, the Court of Appeals remanded the case to the trial court to apply the holding of Newell Recycling.  The langauge of the remand order, however, indicated that the change in the law appeared to be, in most cases, semantics. 

The remand order begins with a quote of the language that proponents of a longer statute of limitation liked:

As our Supreme Court explained, “[w]here a complete written contract exists and an action for breach of contract is pursued, the Legislature and this Court have made clear that the six-year statute of limitations of OCGA 9-3-24 applies, regardless of whether the alleged breach stems from the express terms of the agreement or duties that are implied in the agreement as a matter of law.”

The Court then noted what Attorney Defender noted when the case came out:  the Supreme Court’s citation with approval of Jankowski suggests that the change in the law was not that sweeping.

On the other hand, “[w]here the agreement is incomplete, such that the writing does not form a contract or the promise allegedly broken stems from a purely oral agreement, the four-year state of limitations of OCGA 9-3-25 applied.”  As an example of a case in which the written contact or the promise allegedly broken stems from a purely oral agreement, the Supreme Court cited our decision in Jankowski v. Taylor, Bishop & Lee, 154 Ga.App. 752 (269 S.E.2d 871) (1980).  [citation omitted] In Jankowski, we held that a retainer letter did not constitute the entire contract between a law firm and its client because it addressed only two aspects of the relationship between the firm and the client, and we applied the statute of limitations for hte breach of oral promises because the remainder of the contract was in parol.  154 Ga. App. at 754-755(2).

As a breach of contract claim, there were two potential statutes of limitations: four years under OCGA 9-3-25 for express oral promises or implied promises, or six years under OCGA 9-3-24 for simple written contracts.  Prior to Newell Recycling, the Court of Appeals consistently held that legal malpractice claims were always subject to the four-year limitations period as no written attorney-client retainer or representation agreement was ever deemed to be subject to the simple written contract period of OCGA 9-3-24.  As numerous legal malpractice and other professional negligence cases reasoned, the four-year statute applied to professional negligence claims because the contractual duty allegedly breached, i.e., failing to meet the professional standard of care, was not one specified within the written contract itself. Rather, that obligation was imposed by law and therefore implied in the parties’ contract. Thus, cases like Jankowski v. Taylor, Bishop & Lee, 154 Ga. App. 752 (269 S.E.2d 871) (1980), in which a written retainer agreement was admitted, held that a legal malpractice claim was subject to a four-year statute of limitations as there were many implied duties and obligations not contained within the written agreement between the parties.

 When the Court of Appeals held in Jordan Jones and Goulding v. Newell Recycling of Atlanta, 299 Ga. App. 294, 682 S.E.2d 666 (2009), reversed, 288 Ga. 236, 703 S.E.2d 323 (2010), that a professional negligence claim was always subject to a four-year statute of limitation, it was following its own well established precedent. The Supreme Court of Georgia however reversed the Court of Appeals in Newell Recycling of Atlanta v. Jordan Jones and Goulding, 288 Ga. 236, 703 S.E.2d 323 (2010). The holding of the Supreme Court made clear that a professional negligence claim could be subject to the six-year limitations period of OCGA 9-3-24 if the contract.  The more important question for those pursuing and defending legal malpractice claims was under what circumstances the holding in Newell Recycling would result in a longer limitations period.  There is reason to think, especially after the focus of the remand order, not very often.

The remand order and focus on Jankowski is hard to ignore. It appears that absent a merger clause in the attorney client agreement, which is less common than in some other professional services agreements, it is unlikely that the Supreme Court’s opinion will change the outcome of most attorney-client limitation periods.  Jankowski was a holding that applied the four-year limitations period to what would be typical of most attorney-client fee agreements. The Supreme Court, even in its announcement of the possibility of a six-year period, left in place the jurisprudence that lead to the Court of Appeal’s now overly broad four-year rule. The application of the new rule, however, approved of and left in place the ability to reach the same result in nearly all cases.


New Georgia Professional Liability Group to Host Seminar – Lane Young and Kim Jackson to speak

Can the aliens prove the case within the case?

The new State Bar of Georgia’s Professional Liability Group is hosting its first CLE program on May 5, 2011, and it figures to be excellent.  Called “Houston … We Have A Problem – Not Your Typical Malpractice Seminar” figures to be … atypical for a malpractice seminar.

The speakers are also a star-studded cast of legal malpractice lawyers on both sides of the “v.”  Included among the speakers are Hawkins Parnell Thackston & Young’s Lane Young and Kim Jackson.  

Mr. Young will be representing the defense in the first of three hypothetical legal malpractice cases.  Mr. Young will also speak on what to do and who to tell when a legal malpractice claim arises. 

Mr. Jackson’s presentation is called “Defending Yourself and Your Law Firm:  Counterbalancing considerations for harm suffered by clients with whom you are or were in a fiduciary relationship.”


Expert witness standards in legal malpractice clarified

In Wilson v. McNeely, 307 Ga. App. 876, 705 S.E.2d 874 (2011), the Court of Appeals addressed a legal malpractice case for the third time, this time on the issue of admissibility of expert testimony.  McNeely represented Wilson in connection with a real estate closing.  Wilson later sued McNeely for malpractice.  At trial, Wilson offered his brother to testify that the standard of care was breached.

Momma always said I was an expert

The Court addressed the test for the admissibility of a professional in a professional liability case, and specifically OCGA § 24-9-67.1 (c). To be admissible, “at the time the act or omission is alleged to have occurred, such expert” must have been “licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time[.]” OCGA § 24-9-67.1 (c).

The Court summarized its analysis of the statute:  “in order to comply with the licensing requirement of OCGA § 24-9-67.1 (c) (1), an expert in a professional malpractice action must be licensed and practicing (or teaching) in one of the states of the United States at the time the alleged negligent act occurred.”  Citing Craigo v. Azizi, 301 Ga. App. 181, 186-187, 687 SE2d 198 (2009).

The Court further explained that the practice or teaching qualification is a legal determination for the trial court subject to an abuse of discretion standard, citing HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641, 642, 697 SE2d 770 (2010) and Moran v. Kia Motors America, 276 Ga. App. 96, 97 (1) (622 SE2d 439) (2005).

The evidence before the Court was as follows:  at the time of the alleged negligence about which the witness would testify, (1) the witness was a member in good standing of the State Bar of Georgia; (2) witness did not have a municipal business license as an attorney; (3) witness did not have malpractice insurance coverage; (4) witness worked in a family wholesale equipment distribution business and described his principal occupation as “merchant;” (5) described himself as “somewhat corporate counsel” for that business; (6) he did not perform typical legal functions such as representing his company or any other litigant in court, drafting or filing pleadings; preparing deeds or other conveyancing documents, or searching property title records or performing the legal tasks inherent in closing real estate transactions.

The Court of Appeals confirmed that OCGA 24-9-67.1(c)(1) applied to all professional negligence experts.  The Court also rejected the trial court’s analogy regarding OCGA 24-9-67.1(c)(2).  That statute, which limits medical malpractice experts to those in areas of speciality about which they are testifying, does not apply outside of medical malpractice cases.  Although the trial court analogized that provision to the rejected attorney witness in the case, the Court of Appeals found the analogy harmless since the evidence supported the finding that the witness did not qualify under OCGA 24-9-67.1(c)(1).

Prior to the enactment of OCGA 24-9-67.1(c)(1), the testimony of an a licensed attorney would likely have been admissible under the facts of this case.  This case provides some clarity as to what may be required to establish an attorney is “practicing law” sufficient to offer expert testimony in a professional liability case.


Professional Liability Section Added to State Bar of Georgia

The professional liability bar is ready

The State Bar of Georgia approved on January 15 a new section – the Professional Liability Section

This section is focused on professional liability litigation dealing with claims against attorneys, accountants, architects, brokers, and other non-medical professionals. 

This new section is a nice addition to the State Bar of Georgia and came about thanks to the hard work of several attorneys.

The chair of the new section will be one of those persons, Stephanie Wright.

The first professional liability CLE event will come in April or May.

Kim Jackson Cleans Up The Mess

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