Watkins & Watkins, PC v. Williams

• Court: Georgia Court of Appeals
• Writing for the Court: JOHNSON, Chief.
• Citation: Watkins & Watkins, PC v. Williams, 518 S.E.2d 704, 238 Ga. App. 646 (Ga. App. 1999)
• Decision Date: 26 May 1999
• Docket Number: No. A99A0283.,A99A0283.
• Parties: WATKINS & WATKINS, P.C. et al. v. WILLIAMS.

518 S.E.2d 704

238 Ga. App. 646

WATKINS & WATKINS, P.C. et al. v. WILLIAMS.

No. A99A0283.

Court of Appeals of Georgia.

May 26, 1999.

Reconsideration Denied June 24, 1999.

Catherine V. Ryan, for appellants.

Watkins & Watkins, John D. Watkins, Atlanta, pro se.

Duffy, Feemster & Lewis, George L. Lewis, Savannah, for appellee.

JOHNSON, Chief Judge.

Rosa Belle Williams hired John D. Watkins and his law firm, Watkins & Watkins, P.C. (collectively "Watkins") to handle a variety of legal matters from 1971 through 1997. On October 1, 1993, October 8, 1993, and December 1, 1993, Watkins asked Williams to loan him $30,000, most of which he said he needed in order to handle other clients' cases. The loans were not committed to writing, although at trial Watkins admitted borrowing the money. Watkins told Williams he would repay her when the cases were settled and gave her shares of stock in the law firm as collateral. The loans were never repaid.

In 1995, Watkins told Williams she owed him $20,000 for his services. He explained that $12,500 of that amount was for drafting her husband's will and for representing her in a minor car accident for which she was not cited or sued. Watkins told her that $7,500 was for taking her to the bank and to the nursing home to visit her husband. Williams, who was 74 years old and disabled, paid Watkins the requested fee.

On October 2, 1997, Williams sued Watkins, alleging he charged her excessive attorney fees, violated rules of professional conduct by soliciting loans from her and giving her an ownership interest in the firm, breached a fiduciary duty to her, committed fraud, failed to repay the money he borrowed from her, and kept money he should have forwarded to her. The jury returned a verdict in Williams' favor, awarding her general damages, attorney fees, litigation expenses, and punitive damages. Watkins appeals from the judgment entered on the verdict.

1. The trial court did not err in denying Watkins' motion for directed verdict. Watkins claims the statute of limitation expired on the tort claims and there was no evidence regarding the loans or excessive attorney fees. We disagree.

The only discussion we find in Watkins' brief regarding the statute of limitation says the fraud and legal malpractice actions are barred by two-year statutes of limitation. In Georgia, legal malpractice is based upon the breach of a duty imposed by the attorney-client contract of employment and, therefore, the applicable statute of limitation is four years. Riddle v. Driebe, 153 Ga.App. 276, 279, 265 S.E.2d 92 (1980). Fraud claims are also subject to four-year statutes of limitation. See Washburn v. Sardi's Restaurants, 191 Ga.App. 307, 311(6), 381 S.E.2d 750 (1989). Watkins does not argue or show that the claims were more than four years old when the suits were filed. Thus, the evidence did not demand a verdict in his favor on that basis.

Similarly, his claim that there is no evidence regarding the loans or excessive fees is belied by the record. Williams testified as to the circumstances surrounding the loan agreements and the fees she paid for various services. Two attorneys testified that the fees were unreasonable in light of the services Watkins provided. Because the evidence did not demand a particular verdict, Watkins' motion for directed verdict was properly denied. See Fowler v. Smith, 230 Ga.App. 817, 819(1)(b), 498 S.E.2d 130 (1998).

2. Watkins complains the trial court erred in allowing an attorney to testify regarding the Code of Professional Responsibility when the Code does not establish civil liability or remedies and when there was no evidence of professional negligence. There was no error.

To be admissible, evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. OCGA § 24-2-1. Rules of the State Bar of Georgia, while not determinative of the standard of care applicable in a legal malpractice case, may be considered along with other facts and circumstances to determine whether an attorney treated his client with the requisite degree of skill and care. Allen v. Lefkoff, Duncan, &c., P.C., 265 Ga. 374, 377(2)(c), 453 S.E.2d 719 (1995). In her complaint, Williams alleged, among other things, that Watkins committed professional negligence, fraud and breach of fiduciary duty. In the context presented here, each of these claims is part of a legal malpractice claim. See McMann v. Mockler, 233 Ga. App. 279, 280(1), 281-282(3), 503 S.E.2d 894 (1998). And, contrary to Watkins' contention, there was evidence of professional negligence. See, e.g., DR 2-106(A) (lawyer shall not charge clearly excessive fee); DR 3-103 (lawyer shall not form law partnership with non-lawyer). The State Bar Rules were relevant. See generally Allen, supra.

3. Watkins complains that the trial court also erred in allowing an attorney to testify as an expert regarding attorney fees. He seems to argue that the attorney, Thomas Tucker, who had been practicing law for nearly 23 years and served on a bar grievance committee, was not an expert. However, the only objection Watkins made at trial regarding Tucker's testimony was that the State Bar Rules were irrelevant; as discussed above, the Bar Rules were relevant. We will not consider on appeal grounds not presented to the trial court. Ga. Farm Bureau &c. Co. v. Blackburn, 223 Ga.App. 423, 424, 480 S.E.2d 848 (1996).

Watkins' separate but similar enumeration claiming the trial court erred in allowing Tucker to testify as to whether attorney fees and litigation expenses were reasonable was not preserved since Watkins did not object at trial to the testimony. See generally Joiner v. Lane, 235 Ga.App. 121, 125(3)(b), 508 S.E.2d 203 (1998).

4. In several enumerations, Watkins argues the trial court should not have charged the jury on fraud, punitive damages, conversion, and the Code of Professional Responsibility. However, after charging the jury, the trial court asked Watkins if he had any exceptions to the charge. Watkins replied "[o]nly the exceptions that iterated [sic] at the beginning, Your Honor, when we were going over them." A review of the charge conference transcript, however, shows that Watkins made no exceptions to any of these charges, even though the trial court expressly gave him an opportunity to review and object to Williams' requests. Although Watkins claims he was prevented from objecting, the record shows otherwise. When the trial judge instructed Watkins to sit down, it was in response to Watkins' complaints about not having a copy of Williams' revised requests to charge. The trial judge immediately thereafter secured for Watkins a revised copy and told him to review it and inform the court when he was ready to continue. The trial court then asked Watkins if he had any comments on the requests, to which he responded "[n]o, sir." The trial court continued to entertain both parties' comments as to the remaining charges.

In a civil case, a party may not complain of the giving of a jury instruction unless he objects to it before the jury returns its verdict and distinctly states an objection and the grounds for it. The failure to except before verdict generally is a waiver absent a substantial error blatantly apparent and prejudicial, resulting in a gross miscarriage of justice. Moody v. Dykes, 269 Ga. 217, 219(3), 496 S.E.2d 907 (1998). There being no such result here, the arguments regarding these charges were waived.

5. Contrary to Watkins' contention, the trial court did not err in failing to strike all portions of Williams' pleadings pertaining to tort claims, punitive damages, attorney fees and the Code of Professional Responsibility. Although in his brief Watkins cites ...