Graves v. Jones, 74699

• Decision Date: 09 September 1987
• Docket Number: No. 74699,74699
• Citation: 361 S.E.2d 19,184 Ga.App. 128
• Parties: GRAVES v. JONES.
• Court: Georgia Court of Appeals

Page 19

361 S.E.2d 19

184 Ga.App. 128

GRAVES v. JONES.

No. 74699.

Court of Appeals of Georgia.

Sept. 9, 1987.

Arnold B. Graves, pro se.

Eileen M. Golden, Atlanta, for appellant.

Carr G. Dodson, Bradley J. Survant, Macon, for appellee.

CARLEY, Judge.

Appellant-plaintiff filed a complaint, alleging that various acts and omissions of appellee-defendant attorney constituted legal malpractice. Appellee answered, denying the material allegations of appellant's complaint. Appellee subsequently moved for summary judgment, supporting his motion with his own affidavit. In his affidavit, appellee asserted that, at all times during his representation of appellant, he had "exercised the degree of skill, prudence, and diligence as lawyers of ordinary skill and capacity possess and exercise in the State of Georgia and was not negligent in any particular regard in said representation."

In opposition to appellee's motion, appellant filed both his own affidavit and the affidavit of an attorney. In the latter affidavit, the affiant recited his qualifications as an expert and, having further established the parameters of acceptable professional conduct as to one of the numerous instances alleged to constitute legal malpractice in appellant's complaint, concluded that, as to that single instance, appellee had "failed to exercise the degree of skill, prudence and diligence of lawyers of ordinary skill in the State of Georgia generally." Compare Kellos v. Sawilowsky, 254 Ga. 4, 325 S.E.2d 757 (1985).

On this evidence, the trial court granted summary judgment in favor of appellee as to each allegation of legal malpractice except that single instance which had been addressed in the affidavit of appellant's expert. Accordingly, the trial court further ordered that any recovery by appellant would be limited to such damages as had been proximately caused by the single instance of alleged legal malpractice still at issue. Appellant appeals from the trial court's grant of partial summary judgment in favor of appellee.

1. "[E]xcept in clear and palpable cases (such as the expiration of a statute of limitation), expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. [Cits.]" Hughes v. Malone, 146 Ga.App. 341, 345, 247 S.E.2d 107 (1978). See also Rose v. Rollins, 167 Ga.App. 469, 471(2), 306 S.E.2d 724 (1983). None of the instances of alleged legal malpractice attributed to appellee in appellant's complaint falls within the "clear and palpable" exception. Therefore, it would be incumbent upon appellant to produce expert testimony as to those allegations at a trial on the merits, and a recovery based upon appellant's own non-expert testimony would not be authorized.

Appellee, as the movant for summary judgment, had the burden of proving that no genuine issue as to his alleged legal malpractice remained for trial. Since appellant had alleged no instances of "clear and palpable" legal malpractice, appellee met that burden by submitting his own affidavit. "In support of his motion for summary judgment, appellee filed his own affidavit to the effect that his representation of appellant complied with applicable standards of professional competence. Such an affidavit by a defendant in a legal malpractice action, if not contradicted by expert testimony, will authorize summary judgment for the defendant attorney." Thomas v. Carlisle, 179 Ga.App. 315, 316(3), 346 S.E.2d 79 (1986). See also Parker v. Knight, 245 Ga. 782(3), 267 S.E.2d 222 (1980); Mims v. Wardlaw, 176 Ga.App. 891(3), 338 S.E.2d 866 (1985). Contrary to appellant's assertions, appellee's affidavit was not "conclusory." It established that, in appellee's expert opinion, his legal representation of appellant had been in compliance with and did not deviate from the parameters of acceptable professional conduct.

Since appellee met his evidentiary burden as the movant, the burden shifted to appellant to show that a genuine issue of material fact as to appellee's legal malpractice remained for trial. That burden could not be met by appellant's submission of his own affidavit. "[I]n those cases where the plaintiff must produce an expert's opinion in order to prevail at trial, when the defendant produces an expert's opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue...