Bowen v. Hunter, Maclean, Exley & Dunn

• Decision Date: 18 November 1999
• Docket Number: No. A99A0990.,A99A0990.
• Parties: BOWEN et al. v. HUNTER, MACLEAN, EXLEY & DUNN et al.
• Court: Georgia Court of Appeals

525 S.E.2d 744

241 Ga. App. 204

BOWEN et al. v. HUNTER, MACLEAN, EXLEY & DUNN et al.

No. A99A0990.

Court of Appeals of Georgia.

November 18, 1999.

Reconsideration Denied December 2, 1999.

Certiorari Denied May 1, 2000.

Ronald C. Berry, Savannah, for appellants.

Oliver, Maner & Gray, Patrick T. O'Connor, Timothy D. Roberts, Savannah, for appellees. BARNES, Judge.

Mrs. Robert Sieg, Sr. and Deborah Sieg Bowen sued attorney John Tatum and the law firm of Hunter, Maclean, Exley & Dunn, alleging that Tatum committed professional malpractice, breach of fiduciary duty, negligence, conspiracy, fraud, and conversion. The plaintiffs, mother and sister of the late Robert Sieg, Jr., based their claims on assertions that Tatum should have given them a copy of Sieg's prenuptial agreement, which allegedly barred his widow from inheriting and would have informed them they were entitled to Sieg's entire estate.

The trial court granted summary judgment to the defendants on plaintiffs' legal malpractice and breach of fiduciary duty claims, because the plaintiffs were never the defendants' clients. The trial court also found that under Georgia law the defendants owed no fiduciary duty to the plaintiffs. The trial court then bifurcated the trial of the remaining issues.

In the first phase of the trial, the jury considered whether the prenuptial agreement was valid. If it found the agreement valid, then in the second phase of the trial the jury would consider whether Tatum and the law firm were liable for failing to disclose its contents. Because the jury concluded that the prenuptial agreement purporting to bar the widow from inheriting anything was invalid, the trial court entered judgment for the defendants.

Plaintiffs appeal, alleging the trial court erred in granting summary judgment to Tatum and the law firm on the plaintiffs' fiduciary claims, in bifurcating the trial, in making certain evidentiary rulings, in denying plaintiffs' motion for directed verdict on the widow's failure to rescind the prenuptial agreement, and in declining to give certain jury charges. For the reasons that follow, we affirm.

In February 1990, Robert Sieg, Jr. fell down a set of stairs in his house and died. He had no children and no will. His widow, Lynne Sieg, hired attorney Tatum to help her administer the estate. The probate court appointed her the estate administrator, and she was discharged from those duties in December 1990.

Although Sieg's mother and sister were aware of the existence of a prenuptial agreement before the administration was closed, they waited until May 1991, five months after the discharge, to ask Tatum if Sieg had entered into a prenuptial contract with Lynne Sieg. Tatum responded by letter that he was aware of such a contract (he did not draft it), but could not deliver a copy to them without his client's permission, which Lynne Sieg declined to give. In August 1994, three years after receiving Tatum's letter, the decedent's mother and sister sued Lynne Sieg, asserting she had waived her rights as an heir at law in a prenuptial agreement. The widow responded in defense that the mother and sister had no standing to enforce the prenuptial agreement.

The Supreme Court of Georgia disagreed in Sieg v. Sieg, 265 Ga. 384(2), 455 S.E.2d 830 (1995), holding that the prenuptial agreement "constituted an actual legal settlement under which the rights of the parties vested." (Punctuation omitted.) Id. at 386, 455 S.E.2d 830. Thus, the mother and sister of the decedent had standing to maintain an action against the widow based on the prenuptial agreement. The Supreme Court noted it was not considering the agreement's validity, only the standing issue. Id. at fn. 2, 455 S.E.2d 830. After the case was remitted to the trial court, the parties settled in April 1996, on the eve of trial, agreeing the widow would keep half the estate and give half to the mother and sister.

Nine months after the settlement, in January 1997, the mother and sister sued Tatum and his former law firm, alleging that Tatum should have given them a copy of the prenuptial agreement, or at least told them that they had a potential interest in the estate under that agreement. After numerous motions and orders,¹ including the summary judgment granted to Tatum and his former firm on plaintiffs' claims for malpractice and breach of fiduciary duty, the court bifurcated the trial. The court apparently concluded that the jury had to find the prenuptial agreement valid before the decedent's mother and sister could make any claims against the widow's former lawyer. When the jury concluded the prenuptial agreement was not valid, the trial court entered judgment for the defendants.

1. The decedent's mother and sister contend on appeal that the trial court erred in bifurcating the trial and granting summary judgment to attorney Tatum and his former law firm on the breach of fiduciary duty claims. We disagree.

"Courts are authorized to bifurcate issues to further convenience or avoid prejudice. OCGA § 9-11-42(b). The decision to bifurcate is reviewed for clear and manifest abuse of discretion." Whitley v. Gwinnett County, 221 Ga.App. 18, 19(2), 470 S.E.2d 724 (1996); Cantrell v. Northeast Ga. Med. Center, 235 Ga.App. 365, 368(1)(b), 508 S.E.2d 716 (1998).

Tatum and his former firm moved to bifurcate the trial to determine first whether the mother and sister of the decedent were legal heirs who would have prevailed in their underlying suit against the widow but for the allegedly tortious conduct of the widow's former attorney, Tatum. The mother and sister responded that they had a tort claim against Tatum for his failure to disclose the agreement, from which damages flowed "in the form of fees and expenses to force disclosure." The trial court found that, "in order to avoid undue prejudice, the issue of the enforceability and validity of the prenuptial agreement should be tried prior to and separately from Plaintiffs' claims of fraud, conspiracy, conversion, etc." The trial court had previously granted the defendants' motion for summary judgment on plaintiffs' claims of professional malpractice and breach of fiduciary duty, finding that "no attorney/client relationship existed between Plaintiffs and Defendants" and further finding that

[t]he issue of whether the Plaintiffs were beneficiaries of the estate is a question of fact which hinges on whether or not the prenuptial agreement was valid and enforceable. Genuine issues of material fact remain for jury determination concerning these issues. Regardless of these questions of fact however, the Plaintiffs have conceded in their briefs that "Georgia has not yet specifically addressed whether ... the attorney [of a fiduciary] otherwise owes a fiduciary duty to the beneficiary."

The court then granted defendants summary judgment on the plaintiffs' claims for breach of fiduciary duty.

Appellants cite no case law or statutes supporting their assertion that they had a tort claim against Tatum for his failure to disclose the "voidable" agreement. Whether the agreement was voidable or void, we decline to create such a tort claim here and hold that the trial court did not abuse its discretion in bifurcating the trial.

2. Sieg's mother and sister assert that the trial court erred in granting summary judgment to Tatum and his former law firm on their fiduciary duty claim. According to the trial court and the parties, Georgia has not addressed the issue of whether the attorney of a fiduciary—such as the administrator of an estate—owes a fiduciary duty in turn to heirs at law. In its order granting summary judgment to Tatum and his former firm on this issue, the trial court concluded that "[t]he issue of whether the Plaintiffs were beneficiaries of the estate is a question of fact which hinges on whether or not the prenuptial agreement was valid and enforceable."

However, Sieg's mother and sister argue that Tatum had a fiduciary duty to them as potential or possible heirs, regardless of whether they were actual heirs. They argue without citation that "justifiable reliance eliminates the duty to exert due diligence," but again cite no authority supporting that proposition. Further, while they cite cases holding that a fiduciary cannot divert trust property to his own use and that a person helping a fiduciary divert trust property is equally liable (Hickson v. Bryan, 75 Ga. 392, 395(2) (1885); Ausley v. Cummings, 145 Ga. 750, 89 S.E. 1071 (1916)), none of these cases is applicable to this situation, in which no evidence has shown that the widow Sieg, as the administrator of Sieg's estate, diverted property to herself. In fact, the case law addressing a fiduciary's responsibilities deals with situations in which the aggrieved party was an actual party to a fiduciary relationship, not a potential or possible party to the relationship.

A fiduciary or confidential relationship arises "where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc." OCGA § 23-2-58.

Kienel v. Lanier, 190 Ga.App. 201, 203, 378 S.E.2d 359 (1989); see Physician Specialists v. Wildmon, 238 Ga.App. 730, 732(1), 521 S.E.2d 358 (1999). The party asserting the existence of a fiduciary or confidential relationship bears the burden of establishing its existence. Crawford v. Crawford, 134 Ga. 114, 119, 67 S.E. 673 (1910). Here, Sieg's mother and sister could not argue that a fiduciary duty arose out of any attorney-client relationship and did not in fact appeal the trial court's summary judgment to Tatum on their legal malpractice claim. See Guillebeau v. Jenkins, 182 Ga.App. 225, 231(1), 355 S.E.2d 453 (1987) (an attorney-client relationship cannot be created in the mind of a would-be client).

When a...