Coleman v. Hicks
| Decision Date | 17 June 1993 |
| Docket Number | No. A93A0493,A93A0493 |
| Citation | 209 Ga.App. 467,433 S.E.2d 621 |
| Parties | COLEMAN v. HICKS et al. |
| Court | Georgia Court of Appeals |
Karen K. Daniels, Macon, for appellant.
Lovett & Hicks, L. Robert Lovett, Frederick V. Massey, Macon, for appellees.
On May 5, 1992, plaintiff Cathy Coleman brought suit against defendants William E. Hicks and Karen Jenkins Rice in the Superior Court of Laurens County. She alleged that defendants represented her in a medical malpractice action that she filed previously against Dr. Channing S. Jun; that she agreed to settle the medical malpractice case on January 9, 1990; that under the terms of the settlement agreement she was to receive a cash payment of $110,000 and monthly payments of $400 for 20 years; and that the total present worth of the settlement package was $206,000. She also alleged that after she settled the medical malpractice case, she underwent six additional surgical procedures; that defendants settled the medical malpractice case prematurely; and that defendants' settlement of plaintiff's medical malpractice case "fell below the standard of representing clients with the reasonable care, skill and diligence required of all licensed attorneys in Georgia...." In addition, plaintiff alleged that defendants failed to exercise reasonable care by "improperly calculating and taking as attorney fees one-third of the total worth of the settlement package rather than one-third of the ... present value of the structured settlement."
Plaintiff claimed that as a direct and proximate result of defendants' negligence, she is "forever barred from collecting compensation for future physical and mental impairments and complications ... [and] suffer[s] great pain and anguish of both mind and body." She sought damages for "pain and suffering ... resulting from ... extreme anxiety, stress and depression." She also sought "monetary damages" resulting from the "improper evaluation of the value of [her] medical malpractice case" and the "improper calculation and collection of attorney fees...."
Plaintiff did not attach an expert's affidavit to the complaint. However, she alleged that the period of limitation was to expire within ten days of the filing of the complaint and that, because of time constraints, an expert's affidavit could not be prepared. Plaintiff added that she would supplement the complaint with such an affidavit pursuant to OCGA § 9-11-9.1(b).
On May 12, 1992, plaintiff amended her complaint, alleging that in March 1990, she filed a complaint with the State Bar of Georgia in which she claimed that defendants charged excessive attorney fees; that on May 7, 1990, she met defendants to discuss the State Bar complaint; and that defendants fraudulently misled plaintiff "by telling her that she would have to spend a lot of money to hire an attorney to represent her before the State Bar and that she would have to pay their attorney fees if she lost." She also alleged that defendants "used their position to mislead, intimidate and confuse" plaintiff; and that because she "could not afford to spend any more money and ... was sick, weak and taking strong medications, she signed a release for $3,500.00 [and agreed] to dismiss her complaint before the State Bar with prejudice."
Defendants answered the complaint, denied liability and asserted a statute of limitation defense. They also asserted, inter alia, that plaintiff was not entitled to rely upon any exception to OCGA § 9-11-9.1 and that plaintiff failed to comply with the provisions of that Code section. Thereafter, defendants moved for summary judgment.
Plaintiff responded to defendants' motion by filing the affidavit of Foy R. Devine. He deposed that, as a practicing attorney, he participated in the settlement of many cases involving structured settlements; that he reviewed the records in this case and the underlying medical malpractice case; and that, in his opinion, defendants deviated from the requisite degree of care and skill in their representation of plaintiff. More particularly, Mr. Devine opined that defendants breached the standard of care "by calculating their fees upon the basis of the total amount of money expected to be paid to the client, including all future payments." In that regard, Mr. Devine added that the "proper method of calculating fees on future payments is based on the present value of future payments, generally best evidenced by the actual cost of the annuity purchased by the tortfeasor to make the future payments."
Following a hearing, the trial court granted defendants' summary judgment motion. Plaintiff appeals. Held:
1. " Cheeley v. Henderson, 197 Ga.App. 543, 546-547, 398 S.E.2d 787, rev'd on other grounds in 261 Ga. 498, 405 S.E.2d 865. See Kilby v. Shepherd, 177 Ga.App. 462, 463, 339 S.E.2d 742.
In our view, plaintiff's complaint sounds in both tort and contract. After all, she seeks damages for pain and suffering, as well as damages for monetary loss. See Cheeley v. Henderson, 197 Ga.App. 543, 546-547, 398 S.E.2d 787, supra. To the extent that plaintiff's claim sounds in tort, it is barred by the applicable two-year statute of limitation. OCGA § 9-3-33; Ballard v. Frey, 179 Ga.App....
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