Fine & Block v. Evans

• Decision Date: 09 September 1991
• Docket Number: No. A91A1173,A91A1173
• Citation: 411 S.E.2d 73,201 Ga.App. 294
• Parties: FINE & BLOCK et al. v. EVANS et al.
• Court: Georgia Court of Appeals

Page 73

411 S.E.2d 73

201 Ga.App. 294

FINE & BLOCK et al. v. EVANS et al.

No. A91A1173.

Court of Appeals of Georgia.

Sept. 9, 1991.

Reconsideration Denied Sept. 25, 1991.

Shapiro, Fussell, Wedge & Smotherman, Robert B. Wedge, Adrienne L. Anderson, Atlanta, for appellants.

Walter M. Henritze, Jr., Atlanta, for appellees.

McMURRAY, Presiding Judge.

This is a legal malpractice case predicated upon the defendant attorneys' negligence on the appellate level, specifically an unexcused delay in obtaining the filing of a transcript which resulted in the dismissal of their client's appeal from an adverse result in the trial court. Defendants, Fine & Block, a law partnership, and A.J. Block and Gary Goldsmith, individually as members of the law firm of Fine & Block, admitted that their failure to obtain an extension of the time for filing a transcript of the trial in the underlying case was not in accordance with the standard of care normally exercised by attorneys at law under the same or similar circumstances. Based on defendants' admission, the superior court granted the motion for partial summary judgment of plaintiffs C. Gary Evans and Glen Restaurants, Inc., on the issue of negligence. Thereafter, defendants moved for summary judgment contending that they had not represented plaintiff Evans and that their breach of duty had caused no injury to plaintiffs since the judgment in the underlying lease contract case would not have been reversed had that judgment been appealed to this Court. The superior court denied defendants' motion for summary judgment and we granted defendants permission to file this interlocutory appeal. Held:

1. "[I]n a suit for legal malpractice, proof that the attorney's negligence proximately caused the client's harm is necessary for recovery. Rogers v. Norvell, 174 Ga.App. 453, 457(2) (330 SE2d 392) (1985); Parten v. Swan, 183 Ga.App. 364, 365 (358 SE2d 906) (1987)." Whitehead v. Cuffie, 185 Ga.App. 351, 352, 364 S.E.2d 87 (1989). In the context of a legal malpractice case in which the negligence alleged is the failure of an attorney to file or perfect an appeal, proximate cause may be established by showing that the appellate court would have reversed and that upon remand to the lower court the client would have obtained a more favorable result. Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (1989); Chicago Red Top Cab Assn. v. Gaines, 49 Ill.App.3d 332, 7 Ill.Dec. 167, 364 N.E.2d 328, 329 (1977); Floyd v. Kosko, 285 S.C. 390, 329 S.E.2d 459, 461 (1985); Daugert v. Pappas, 704 P.2d 600, 603 (1985); Cabot, Cabot & Forbes Co. v. Brian, Simon, Peragine, Smith & Redfearn, 568 F.Supp. 371, 372 (E.D.La.1983); Better Homes, Inc. v. Rodgers, 195 F.Supp. 93, 97 (N.D.W.Va.1961).

In the case sub judice, we are particularly concerned with the manner in which the first prong of this test for proximate cause is established. The superior court, citing the dissent in Millhouse v. Wiesenthal, 775 S.W.2d 626, supra, held that the question of legal malpractice is not a matter of law to be decided on a motion for summary judgment, but a matter to be decided by a trier of fact under proper instructions from the court and with the aid of expert testimony. This conclusion is not correct as to the question of whether an appeal would have been successful.

This court is limited to resolving questions of law rather than fact. Gilman Paper Co. v. James, 235 Ga. 348, 349, 219 S.E.2d 447 (1975); Williams v. Terry, 197 Ga.App. 209, 210(4), 398 S.E.2d 239 (1990); Ingram v. Peterson, 196 Ga.App. 888, 889(1), 397 S.E.2d 141 (1990). Consequently, a determination of whether an appeal to this Court would have been successful is a question of law, exclusively within the province of judges, and should have been decided by the superior court in ruling on defendants' motion for summary judgment. The superior court erred in holding otherwise. See Millhouse v. Wiesenthal, 775 S.W.2d 626, 628, supra; Floyd v. Kosko, 329 S.E.2d 459, 461, supra; Daugert v. Pappas, 104 Wash.2d 254, 704 P.2d 600, 603 (1985), supra; Cabot, Cabot & Forbes Co. v. Brian, Simon, Peragine, Smith & Redfearn, 568 F.Supp. 371, 374, supra.

2. We must address the merits of the hypothetical appeal in order to determine whether the superior court's error was harmful. In the underlying lease contract case, Building 5 Associates, Ltd., obtained a judgment against defendants' client, Glen Restaurants, Inc., for rent due under a lease. The judgment was entered by Judge Eldridge following a trial without a jury.

Plaintiffs contend that Judge Eldridge erred in applying the measure of damages stated in Szabo Assoc. v. Peachtree-Piedmont Assoc., 141 Ga.App. 654, 655, 656, 234 S.E.2d 119 (1977), arguing that Szabo Assoc. was disapproved in Piggly Wiggly Southern v. Eastgate Assoc., Ltd., 195 Ga.App. 10, 392 S.E.2d 337. However, in Piggly Wiggly southern, we merely disapproved of certain dicta in Szabo Assoc. concerning what the measure of damages would have been if there had been an anticipatory breach, but did not criticize the measure of damages, taken from Dehco, Inc. v. Greenberg, 105 Ga.App. 236, 238(2), 124 S.E.2d...