Engelman v. Kessler, A16A1871

CourtUnited States Court of Appeals (Georgia)
Citation340 Ga.App. 239,797 S.E.2d 160
Docket NumberA16A1871,A16A1872
Parties ENGELMAN v. KESSLER et al. Kessler et al. v. Engelman.
Decision Date16 February 2017

George M. Cabaniss Jr., Tamela Lynn Adkins, for Appellant in A16A1871.

Teresa Elizabeth Lazzaroni, Christine Lupo Mast, Atlanta, for Appellee in A16A1871.

Teresa Elizabeth Lazzaroni, Christine Lupo Mast, Atlanta, for Appellant in A16A1872.

George M. Cabaniss Jr., Tamela Lynn Adkins, for Appellee in A16A1872.

Rickman, Judge.

In these consolidated appeals, we must determine whether the trial court properly granted summary judgment in part, and denied it in part, in this case filed by a client, Andrea Engelman, against her former attorneys, Randall Kessler, Louis Tesser, Darren Tobin, (collectively, "the attorneys") and her former law firm, Kessler, Schwarz and Solomiany, P.C. ("KSS"). The attorneys and KSS represented Engelman in a divorce action. Approximately three years after signing a settlement agreement in her divorce case, Engelman filed a lawsuit against the attorneys and KSS, alleging legal malpractice and breach of fiduciary duty/fraud. The trial court granted summary judgment in favor of the attorneys and KSS on Engelman's claim for legal malpractice. Both parties' motions for summary judgment on Engelman's breach of fiduciary duty/fraud claim were denied.

For the following reasons, we affirm the trial court's grant of summary judgment to the attorneys and KSS on Engelman's claim for legal malpractice. We vacate the trial court's denial of summary judgment on the breach of fiduciary duty/fraud claim and remand for proceedings consistent with this opinion.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant's favor, warrant judgment as a matter of law. We review de novo the trial court's ruling on a motion for summary judgment.

(Citation and punctuation omitted.) Hart v. Sirmans , 336 Ga.App. 212, 784 S.E.2d 67 (2016).

So viewed, the record shows that prior to marrying her former husband, Engelman, a college graduate, signed a prenuptial agreement. At some point during the marriage, Engelman suspected that her former husband planned on seeking a divorce. Engelman did not want a divorce but she met with Tobin because she wanted the attorneys to look at the prenuptial agreement. A few months after their initial meeting, Engelman retained the attorneys and KSS. Engelman signed a one-page legal services employment agreement.

The legal services employment agreement provided that Engelman would pay "$25,000 now as a general retainer to preclude adversaries from hiring KSS in this matter and for KSS to be available and ‘on call’ to represent [Engelman].... Retainers are earned when paid. Refunding funds not accounted for by time or expenses is in KSS' sole discretion." While there is a handwritten note on the agreement that states, "$15,000 to start representation," Engelman actually gave the attorneys and KSS a check for $20,000 to begin representation. The hourly rates for each attorney in the firm were listed in the legal services employment agreement along with the caveat that the rates were "subject to increases."

On the day after Engelman retained the attorneys and KSS, Kessler sent an interoffice e-mail which stated that the attorneys' hourly rates would be increasing. Kessler requested that a memo be sent to all of KSS's clients to inform them of the rate change. Engelman denied that she ever received this memo. Engelman did receive billing statements from KSS and she acknowledged that on the statements the rates for each attorney were clearly listed.

Engelman believed that her former husband was wealthy but she was not aware of his exact income. The attorneys advised Engelman that they would send a businesses valuation expert a copy of the prenuptial agreement in order to get an opinion regarding whether her former husband's new businesses could be considered marital property and, thus, be exempt from the prenuptial agreement. The attorneys and Engelman's former husband's attorney began to communicate about the potential divorce case and the prenuptial agreement; the attorneys expressed an interest in trying to settle the case.

On February 5, 2010, Engelman's former husband's attorney sent Tesser a settlement offer. On February 8, 2010, a KSS paralegal sent an email to Engelman with the settlement offer attached and indicated that after she read the offer she should call Tesser or Tobin to discuss it. On February 10, 2010, Engelman sent an email to Tesser, Tobin, and the paralegal which stated, "I am working on two different agreements for you and I to go over at your earliest convenience." On February 18, 2010, Tesser sent a letter to Engelman which stated that she "should seriously consider accepting the offer." The letter went on to analyze the potential enforceability of the prenuptial agreement and also detailed what the attorneys believed was the strongest argument to have the prenuptial agreement declared invalid. The letter stated that its intent was not to "push" Engelman into accepting the offer and that the attorneys would "zealously advocate" on her behalf should she decide to decline the offer.

On February 23, 2010, at 11:35 pm, Engelman sent the attorneys an email detailing a counteroffer she wanted them to make to her former husband's attorney. Nine minutes later, Kessler sent a reply email to Engelman stating, "We will look at this and talk. We can do as you wish, but given that any response other than ‘accepted’ may remove the offer from the table for good, perhaps we should arrange a meeting/mediation.... I also want to compare your email with their offer very carefully." Engelman responded that she was working on the settlement agreement with the help of her family therapist.

On February 24, 2010, Engelman sent another email to Kessler and attached her proposed counteroffer. The following day, Engelman sent an email to the attorneys in which she expressed her displeasure that she had not received a phone call in the 24 hours since her last email and stated that, "I need for that counter offer to be presented to [her former husband's] lawyer as soon as possible."

After speaking with Engelman and her family therapist on the phone, Tobin sent an interoffice email to Kessler detailing the terms of the offer that Engelman wanted the attorneys to present to her former husband's attorney and noting that Engelman insisted that she be provided with a copy of the offer to review by the following day. Kessler replied to Tobin that he "hate[ed] that so be sure she knows there is risk and my perfrence [sic] is to get all parties together before we counter." Tobin sent an email to Engelman reflecting Kessler's concerns:

We understand your desire to resolve this asap. However, [Kessler] still would prefer that we get [Engelman's former husband] and his attorney to sit down with us and try and negotiate a better deal. We will of course proceed with sending them your proposal but we wanted to make you aware of our preference to try and have a meeting with them first. Who knows, there may be more we can get out of him. [ ] In any event we will draft the offer and have it ready for you tomorrow. A meeting between all of us would allow us to explore all options.

Kessler also sent an email to Engelman urging her to agree to meet with her former husband and his attorney in person. Engelman responded that she wanted the attorneys to "[p]lease send the counter" and noted that "[y]ou all seem to think I can't get better." Kessler responded that "[i]t's not that we can't make a good argument for more, it's just that there is a big risk involved and it would be a significant one." Engelman replied that she "can't risk loosing [sic] this offer."

Tesser sent Engelman an email explaining that the attorneys would draft a proposed settlement offer for her to review and expressed an understanding that she was ready for the divorce to be over. Tesser also stated that, "while I think that there is a possibility that you could do better, by and large, what seems to be on the table significantly beats the terms of the prenup, which we believe would probably be enforced." A proposed settlement agreement was emailed to her and after a back and forth discussion regarding terms with the attorneys she sent an email to the attorneys that stated that the offer was "PERFECT!!!" and requested that they "[g]o for it asap[.]" In the following days, she sent emails to the attorneys stating, "[p]lease let me know you ... are taking care of [an omission from the agreement] ASAP," "Did it go out? Please say yes[,]" and "end this ASAP! I need to close on a house hopefully in 30-45 days."

During the finalization of the settlement agreement, Engelman again stressed that she needed to get the agreement signed because she needed to close on a house. Upon receipt of the proposed final agreement by Engelman's former husband's attorney, Engelman sent an email to Tobin and Tesser expressing her desire to sign the agreement the following day because "I am closing on a house ... and need the money to close." Tobin sent Engelman an email explaining that it was in her best interest to slow down, carefully look at the agreement, and urged her to move back the date of her closing. Tobin concluded the email by stating, "[p]lease do not worry—Tesser and I want to ensure that you get everything that you discussed and that you deserve. Now, I would like you to please print the Agreement, read it and find your questions/revisions."

The billing statements Engelman received from KSS reflect that the attorneys' rates were raised during her case. Engelman was in possession of two final invoices, both bearing the same invoice number. The invoices were dated April 29, 2010 and September 7, 2010. The September invoice reflected a higher amount of money owed than the...

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