Griffin v. Fowler, No. A02A1853.

• Decision Date: 20 March 2003
• Docket Number: No. A02A1853.
• Citation: 579 S.E.2d 848,260 Ga. App. 443
• Parties: GRIFFIN v. FOWLER et al.
• Court: Georgia Court of Appeals

579 S.E.2d 848

260 Ga. App. 443

GRIFFIN v. FOWLER et al.

No. A02A1853.

Court of Appeals of Georgia.

March 20, 2003.

James W. Ott, Atlanta, for appellant. Hawkins & Parnell, Christine L. Mast, Emory L. Palmer, David E. Allman, Atlanta, for appellees.

MIKELL, Judge.

Morris J. Griffin filed the underlying action asserting claims of legal malpractice, breach of fiduciary duty, and fraud against Michael C. Fowler, arising out of estate planning services performed by Fowler on Griffin's behalf. Griffin also sued the individual partners in Fowler's law firm, Bivens, Hoffman & Fowler, LLP, and the firm itself. The trial court granted partial summary judgment to the defendants on Griffin's claims of breach of fiduciary duty and fraud, leaving the legal malpractice claim to be decided by a jury.¹ Griffin appeals. For reasons explained below, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the] plaintiff's case.... Our review of an appeal from summary judgment is de novo.

(Citations omitted.) Vasquez v. Smith, 259 Ga.App. 79, 576 S.E.2d 59 (2003). See also Willett v. Russell M. Stookey, P.C., 256 Ga. App. 403, 410, 568 S.E.2d 520 (2002).

Viewed in favor of Griffin as the nonmoving party, the record shows that he was the primary beneficiary of the substantial estate of his former life partner, William Kerske. Griffin met Fowler when Quinton Hudson, an attorney and longtime acquaintance of both men, referred him to Fowler for estate planning services. Hudson had performed general legal work for Griffin for over 25 years. Additionally, Griffin shared a social relationship with Hudson and with Hudson's life partner, James Richardi, with whom Hudson resided.

There is evidence that beginning as early as 1993, Fowler performed estate planning work for Griffin, including preparing a revocable living trust and other related documents to assist him in managing the bequest from Kerske. In January 1998, Griffin formally retained Fowler to assist him in establishing an estate plan. Griffin signed a retainer agreement and paid Fowler $50,000 for his services. According to Fowler, Griffin's estate planning goals were to establish a plan for an orderly transfer of his assets after his death, to insulate his assets from creditors, and to make certain charitable contributions. Griffin deposed that he also expressed his concerns regarding his ability to effectively manage such a large amount of money, based on his spending habits and past cocaine abuse. Additionally, Griffin, who is HIV positive, wanted to ensure that he would have sufficient funds to cover future medical expenses. In 1998, Griffin received a distribution of approximately $1.4 million from the corpus of the Kerske Estate Trust.

In order to effectuate Griffin's goals for managing the distribution, Fowler utilized several legal devices. He set up a charitable remainder unitrust and the M. J. Griffin Living Trust, and established a limited partnership that would own and operate Griffin's business, providing protection from creditors and allowing Griffin to minimize estate taxes and provide for the transfer of his assets after his death. Fowler also filed incorporation documents for the corporation that served as the general partner of the limited partnership. At Hudson's suggestion, Richardi was named the trustee of both trusts and received commissions for his services based on a fee agreement.

In the eight months following the appointment of Richardi as trustee, Griffin authorized a number of disbursements from the living trust, including a $370,000 loan to Hudson to enable him to purchase a home. There is nothing in the record indicating that Fowler was aware of the loan to Hudson or the other disbursements authorized by Griffin and Richardi. In September 1998, Griffin discovered an unauthorized $5,000 withdrawal from his account by Hudson. Griffin fired Hudson and had Richardi removed as trustee. Griffin filed a lawsuit against Hudson and Richardi on October 6, 1998. A panel of arbitrators awarded Griffin $1,338,803, and the award was made the judgment of the court. Griffin filed the present suit against Fowler and his law firm on January 11, 2000.

1. First, Griffin argues that the trial court erred in granting summary judgment to Fowler and his law partners on the breach of fiduciary duty claim. It is well settled that a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach. Conner v. Hart, 252 Ga.App. 92, 94(1)(a), 555 S.E.2d 783 (2001). See also Willett, supra at 411-412(7), 568 S.E.2d 520; Tante v. Herring, 264 Ga. 694(1), 453 S.E.2d 686 (1994) (attorney breached fiduciary duty by using information gained through the attorney-client relationship to engage in an adulterous relationship with client). It is undisputed that Fowler owed Griffin a fiduciary duty as his attorney. Griffin contends that there were issues of fact regarding whether Fowler breached his fiduciary duty by charging a grossly excessive fee, charging Griffin for estate planning software that he retained for general use in his practice, and failing to inform Griffin that he had concerns about Richardi serving as the trustee of Griffin's trusts. We disagree.

We held in McMann v. Mockler, 233 Ga. App. 279, 503 S.E.2d 894 (1998), that a plaintiff's breach of fiduciary duty claim, as well as claims of breach of contract and breach of implied duty of good faith and fair dealing, merely duplicated her malpractice claim and could not survive summary judgment. Id. at 282(3), 503 S.E.2d 894. We affirmed the trial court's ruling that "the claims were `mere duplications of the legal malpractice claim which itself is based on the establishment of a fiduciary, attorney-client relationship that is breached.'" Id. at 281(3), 503 S.E.2d 894. We reach a similar result in the case at bar. Our review of the complaint reveals that Griffin's allegations of excessive fees, improper charges for software, and Fowler's failure to warn him of concerns regarding Richardi serving as trustee are all contained in the malpractice claim. Accordingly, Griffin's breach of fiduciary duty claim is a mere duplication of the malpractice claim and cannot be maintained. Furthermore, even if Griffin's allegations were not duplicative, they would not have survived summary judgment for the reasons that follow.

(a) Excessive fees. Our Supreme Court has held that a plaintiff's allegation that he was charged excessive legal fees cannot provide the sole basis for a malpractice claim. Davis v. Findley, 262 Ga. 612, 613, 422 S.E.2d 859 (1992). The Supreme Court recognized that prohibitions of clearly excessive legal fees are contained in the Georgia Code of Professional Conduct and the State Bar Rules. Id. at 612, 422 S.E.2d 859. Citing decisions of this Court and of other jurisdictions, the Supreme Court held that a plaintiff cannot base a claim for civil damages solely on duties imposed by the Code of Professional Conduct. Id. at 612-613, 422 S.E.2d 859.

In the case at bar, Griffin contends that the $50,000 fee charged by Fowler was clearly excessive, particularly in light of the fact that Hudson also charged him $50,000. He supports this allegation with expert testimony. However, the record also shows that Griffin voluntarily entered into the retainer agreement and paid Fowler the agreed-upon fees. In light of the Supreme Court's decision in Davis, supra, and based on the evidence in the record, the trial court did not err in granting summary judgment to the defendants on this claim.

Griffin cites Watkins & Watkins, P.C. v. Williams, 238 Ga.App. 646, 518 S.E.2d 704 (1999), and Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 265 Ga. 374, 453 S.E.2d 719 (1995), in support of his argument; however, such reliance is misplaced. In Watkins, a client sued her former attorney for professional negligence, fraud, and breach of fiduciary duty. Watkins & Watkins, supra at 648(2), 518 S.E.2d 704. Evidence was presented that the lawyer charged extremely high fees, solicited loans from his client, and kept money that he should have forwarded to her. Id. at 647, 518 S.E.2d 704. We held that the trial court did not err in allowing evidence of the Code of Professional Responsibility, because " Rules of the State Bar ... may be considered along with other facts and circumstances to determine whether an attorney treated his client with the requisite degree of skill and care." (Citation omitted.) Id. at 647-648(2), 518 S.E.2d 704. We reasoned that "[i]n the context presented here, each of [the plaintiff's] claims is part of a legal malpractice claim." Id. at 648, 518 S.E.2d 704. There is no indication in Watkins & Watkins that the defendant moved for summary judgment on the ground that the excessive fee allegation was improper or that the plaintiff attempted to base a claim for breach of fiduciary duty solely on that allegation. At most, Watkins & Watkins provides that evidence of excessive fees can be considered as part of a legal malpractice claim. In the case sub judice, rather than considering all of Griffin's claims to be part of one legal malpractice claim, the trial court granted summary judgment on the claims that were mere duplications. Griffin retains his legal malpractice claim, and the trial court may determine that evidence of certain bar rules may be presented in connection with that claim. However, Griffin's...