Estate of Nixon v. Barber, A16A2157

• Decision Date: 26 January 2017
• Docket Number: A16A2157
• Citation: 340 Ga.App. 103,796 S.E.2d 489
• Parties: ESTATE OF Robert Hunter NIXON et al. v. BARBER et al.
• Court: Georgia Court of Appeals

340 Ga.App. 103

796 S.E.2d 489

ESTATE OF Robert Hunter NIXON et al.

v.BARBER et al.

A16A2157

Court of Appeals of Georgia.

January 26, 2017

William Brent Ney, Ney, Hoffecker, Peacock & Hayle, Atlanta, for Appellants.

Kimberly Cofer Harris, Ellis, Painter, Ratterree & Adams, Savannah, for Appellees.

Dillard, Presiding Judge.

The Estate of Robert Hunter Nixon, Kathy Nixon, and R. Bruce Nixon ("the Nixons") appeal from the trial court's grant of W. Keith Barber and W. Keith Barber, P.C.'s ("Barber") motion to dismiss the Nixons' action for legal malpractice. The Nixons argue on appeal that the trial court erred in dismissing their complaint based upon a failure to state a claim upon which relief could be granted because (1) they had an attorney-client relationship with Barber and (2) their claims are not barred by causation issues (as maintained by Barber). For the reasons set forth infra , we affirm.

The record reflects that beginning in April 2013, Barber represented Robert Hunter Nixon ("Hunter"), son of Kathy and R. Bruce Nixon ("Kathy" and "Bruce"), on charges of selling and distributing marijuana. On September 3, 2014, Hunter terminated Barber's representation and retained new counsel.¹ But before a resolution was reached in his criminal prosecution, Hunter was killed in an automobile accident on November 7, 2014.

On March 1, 2015, the Nixons filed suit against Barber and asserted a single claim for legal malpractice. Specifically, the Nixons argued that Barber failed to properly represent Hunter in the criminal proceeding, which caused (1) unnecessary delay; (2) substantial stress; (3) extreme mental anguish; and (4) their son being unable to complete his college education when he subsequently died in a car accident. Among the allegations in the complaint were that Barber (1) negligently misrepresented the sentence Hunter faced; (2) was unprepared at a sentencing hearing; (3) made "numerous false and unsubstantiated statements to the Nixon Family"; (4) lied about being in contact with the prosecutor and working toward a better plea offer for Hunter; (5) had a conflict of interest between his duty as a defense attorney and his role as a municipal court judge; (6) pushed Hunter to work undercover with police and "asked for multiple unnecessary continuances"; and (7) botched his defense of Hunter, and that "had [the] criminal prosecution been handled correctly," Hunter would have been attending Georgia State University rather than returning to Atlanta after working in Savannah (when he was tragically killed in the car accident).

Barber answered and moved to dismiss the complaint on the grounds that it failed to state a claim upon which relief could be granted when (1) the Nixons could not establish that any of the negligence alleged in his representation was the proximate cause of their damages, and (2) Kathy and Bruce, Hunter's parents, lacked standing to sue for malpractice because they did not have an attorney-client relationship with Barber. The Nixons later amended their complaint to assert additional facts in support of finding that they had an attorney-client relationship with Barber. But in a summary order (on May 9, 2016), the trial court granted Barber's motion to dismiss for failure to state a claim upon which relief could be granted. This appeal by the Nixons follows.

It is well established that a motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.²

And when a motion to dismiss is considered, "all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor."³

Moreover, a plaintiff is not required to "plead in the complaint facts sufficient to set out each element of a cause of action so long as it puts the opposing party on reasonable notice of the issues that must be defended against."⁴ And if, within the framework of the complaint, "evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient."⁵ At the appellate level, we review the trial court's ruling on a motion to dismiss de novo .⁶ With these guiding principles in mind, we turn now to the Nixons' specific claims of error.

1. The Nixons first argue that the trial court erred in granting the motion to dismiss on the basis that they lacked standing to maintain an action against Barber in the absence of an attorney-client relationship with him. Unfortunately, the court's summary order lacked any analysis to support the dismissal. Nevertheless, we may affirm a dismissal if it is right for any reason.⁷ And here, as to Kathy and Bruce, the motion to dismiss was properly granted because they failed to state a claim upon which relief can be granted when they did not have an attorney-client relationship with Barber. For this same reason, Kathy and Bruce also lacked standing to bring a legal malpractice action against Barber.⁸

In a legal-malpractice case, a plaintiff has the burden of proving the three elements of such an action: (1) employment of the defendant attorney (i.e. , the plaintiff had an attorney-client relationship with the attorney); (2) failure of the attorney to exercise ordinary care, skill, and diligence; and (3) that the attorney's negligence was the proximate cause of the plaintiff's damages.⁹

As to the first requirement, generally, an attorney-client relationship "must be demonstrated before a plaintiff may recover in a legal malpractice suit"¹⁰ because such a relationship is "essential in establishing the element of duty that is necessary to every lawsuit based upon a theory of negligence."¹¹ Although attorney-client relationships are typically matters of express contract, such a relationship can also be implied from the parties' conduct.¹² And the employment of an attorney is sufficiently established when it is shown that "the advice or assistance of the attorney is sought and received in matters pertinent to his profession."¹³ Additionally, while the payment of a fee is relevant to the inquiry and may in some circumstances be controlling,

an attorney-client relationship may be found to exist [when] no fee is paid, and the payment of a fee does not necessarily demonstrate the existence of the relationship. All that is necessary is a "reasonable belief" on the part of the would-be client that he or she was being represented by the attorney. A reasonable belief is one which is reasonably induced by representations or conduct on the part of the attorney.¹⁴

In support of their allegations that an attorney-client relationship was formed with Barber, Kathy and Bruce assert in their amended complaint that

[a]lthough Defendants were counsel of record only to Hunter, they provided legal representation, assistance and advice directly to Mr. and Mrs. Nixon. Defendants were paid by the Nixons, took direction from the Nixons, communicated with and reported to the Nixons, engaged in strategy discussions with the Nixons and were ultimately fired by the Nixons. The Nixons employed Defendants, had an attorney-client relationship with Defendants and reasonably believed that Defendants were acting on their behalf as well as on behalf of Hunter.¹⁵

But again, an attorney-client relationship cannot "be created unilaterally in the mind of a would-be client; a reasonable belief is required."¹⁶ And here, the allegations of the complaint evince that all communications between Kathy, Bruce, and Barber were made for the purpose of and related to Barber's representation of Hunter in defense against his criminal prosecution.

At the very outset of the complaint, in describing the nature of the action, the Nixons explain that it is "an action for professional malpractice arising from Defendants' improper handling of Robert Hunter Nixon's criminal defense" because Barber "failed to properly evaluate and defend Robert Hunter Nixon...." The Nixons then continue to describe the nature of the action by alleging that Barber (1) made misrepresentations about the sentences faced by Hunter; (2) was unprepared at Hunter's sentencing hearing; (3) misinformed the family about his communications with the prosecution and efforts to obtain a better plea offer for Hunter "[t]hroughout his representation of Hunter"; and (4) failed "to properly represent Hunter Nixon" such that it "caused unnecessary delay[,] ... substantial stress[,] and extreme mental anguish." Later in the complaint, in setting forth the factual basis for the claim of legal malpractice, the Nixons alleged that

• "Hunter retained [Barber] to represent him in his criminal defense."

• Barber discussed his representation of Hunter with the family.

• Barber recommended that the family obtain letters of Hunter's good character in advance of the sentencing hearing.

• Barber communicated with the family regarding the prosecution's plea offer, his efforts to obtain a better offer, and his recommendation that Hunter work with law enforcement in hopes of receiving a better offer.

• Barber communicated with the family about lining up speakers on Hunter's behalf at another sentencing hearing.

• Barber further informed the family and Hunter about a new plea offer, which "the Nixons declined," before Hunter agreed to continue working with law enforcement "against his parents' wishes" after Barber warned that Hunter would "serve time" by declining the offer.

• Barber inquired with the Nixons as to why Hunter stopped assisting law enforcement and warned Hunter and his family that Hunter could face prison if he did not continue to cooperate with the police.

• Barber was fired "as Hunter's counse

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