Hudson v. Windholz
| Decision Date | 18 February 1992 |
| Docket Number | No. A91A1874,A91A1874 |
| Citation | 202 Ga.App. 882,416 S.E.2d 120 |
| Parties | HUDSON, et al. v. WINDHOLZ. |
| Court | Georgia Court of Appeals |
Michael T. Bennett and Robert J. Morrison, Atlanta, for appellants.
Arnall, Golden & Gregory, Karen B. Bragman, and Frank N. White, Atlanta, for appellee.
Plaintiffs/appellants appeal the order of the trial court granting summary judgment to defendant/appellee in a legal malpractice action.
Until early 1983, plaintiff Susan Hudson was married to Jennings Gordon. The couple continued to see each other romantically even after their divorce, until approximately August 9, 1984. In or about June of 1984, Ms. Hudson met and began a romantic relationship with plaintiff Gary Hudson, her present husband, so that during the summer of 1984, Ms. Hudson was romantically involved with both her ex-husband and Mr. Hudson. When Mr. Gordon discovered Ms. Hudson's relationship with Mr. Hudson, he apparently felt betrayed and began a course of harassment directed towards Ms. Hudson, subjecting her to a series of threatening, harassing and embarrassing acts, too numerous to recount in this opinion.
The course of conduct which gave rise to this litigation involves Mr. Gordon's distribution of copies of a number of extremely sexually explicit photographs that he had taken of Ms. Hudson prior to, during, and after their marriage, portraying Ms. Hudson in various stages of undress. In August of 1984, Mr. Gordon sent Ms. Hudson a sexually explicit photograph and threatened to send a copy to Ms. Hudson's employer and every real estate agency in Atlanta unless Ms. Hudson immediately left Atlanta. Mr. Gordon then sent a nude photograph of Ms. Hudson to two magazines, Gallery and Genesis, along with a fabricated proposed caption for the photograph and a forged model consent form that appeared to indicate that Ms. Hudson had consented to the publication of the photograph in the magazines. Gallery magazine ultimately published the nude photograph of Ms. Hudson in its October 1985 issue.
On August 29, 1985, two weeks before Mr. and Mrs. Hudson were to be married, Mr. Hudson found a copy of the October 1985 issue of Gallery in his mailbox with Ms. Hudson's business card attached to the magazine. On August 30, 1985, Ms. Hudson contacted and met with defendant Mr. Windholz. She was extremely upset and was contemplating cancelling her upcoming marriage to Mr. Hudson. During their conference, Ms. Hudson described the numerous harassing acts committed by Mr. Gordon during the past year and explained to Mr. Windholz that there were numerous, sexually explicit photographs of her still in Mr. Gordon's possession.
Later that day, a copy of Gallery magazine was delivered to the manager of the bank where Ms. Hudson was employed. On September 14, the Hudsons' wedding day, a plant was delivered to their new home with another sexually explicit photograph of Ms. Hudson placed inside the plant. On September 15, Ms. Hudson's mother returned to her home in Florida to find a copy of Gallery magazine and Ms. Hudson's business cards tacked to her door. On September 16, the Hudsons discovered that someone had broken into Ms. Hudson's car and glued yet another nude photograph of her to the dashboard. Following each of these incidents, Ms. Hudson contacted Mr. Windholz, telling him she was getting more and more anxious to put an end to Mr. Gordon's harassment. During subsequent meetings with the Hudsons, Mr. Windholz observed that Ms. Hudson was becoming emotionally distraught, and Mr. Hudson appeared so angry that defendant was concerned that he could become violent. Throughout their discussions with Mr. Windholz, the Hudsons indicated that Mr. Windholz's primary objective should be to stop Mr. Gordon's harassment.
Mr. Windholz initiated an investigation of the potential civil claims against both Gallery and its publisher, Montcalm Publishing Corporation (hereinafter collectively referred to as "Gallery ") and Mr. Gordon. Mr. Windholz determined that the Hudsons' potential claims against Gallery for invasion of privacy were relatively tenuous. Gallery could assert as a defense that it had relied in good faith upon the model consent form that Mr. Gordon had forged, and moreover, had Mr. Gordon not personally distributed the Gallery issue to Ms. Hudson's relatives and employer, she might never have known that it existed, thereby never incurring any damages.
Mr. Windholz also feared that the introduction of the other far more explicit photographs of Ms. Hudson in a suit against Gallery would injure Ms. Hudson's character more severely than had the publication of the relatively innocuous nude photograph in Gallery. Also, Mr. Windholz was concerned that an action against Gallery would be protracted and expensive, even on a contingency fee basis.
Mr. Windholz made a judgment that the most viable of the Hudsons' claims were those that might be asserted against Mr. Gordon. He therefore recommended that the Hudsons focus their attention on stopping Mr. Gordon's continuing harassment. This decision was communicated to the Hudsons orally and in a letter dated October 2, 1985, which detailed his efforts in accumulating evidence to assist the Hudsons in their claims against Mr. Gordon. The letter mentioned Gallery only insofar as it discusses the degree to which Gallery might be able to assist the Hudsons in the accumulation of evidence against Mr. Gordon. The October 2 letter also contained a written retainer agreement between Mr. Windholz and the Hudsons which discussed potential claims against Mr. Gordon and failed to mention Gallery in any respect. The retainer agreement was accepted by the Hudsons.
Thereafter, Mr. Windholz's efforts were directed toward accumulating evidence for use in a criminal prosecution or civil action against Mr. Gordon. Mr. Windholz determined that an important piece of evidence in any legal action against Mr. Gordon was the original model consent form forged and submitted to Gallery by Mr. Gordon. By obtaining the original form, Mr. Windholz could arrange for a handwriting and fingerprint analysis, which he believed necessary to link conclusively Mr. Gordon to the document. Moreover, by securing the original model consent form, Mr. Windholz could determine whether Mr. Gordon had affixed a notary seal on the designated portion of the document, thereby committing fraud in relation to such seal, another avenue for criminal prosecution. Mr. Windholz also determined that any attempt to obtain the original model consent form from Gallery by way of subpoena or other procedural device might be successful only after considerable delay. After having made this analysis and judgment, Mr. Windholz commenced negotiating with Gallery magazine attempting to obtain the original consent form. Gallery, however, indicated that it would not turn over the original document unless the Hudsons executed a release.
Mr. Windholz consulted with the Hudsons, by telephone and in person, and apprised them of his assessment of the relative strengths and weaknesses of their potential claims against both Gallery and Mr. Gordon. In this conversation, Mr. Windholz explained to the Hudsons the legal effect of executing the release that Gallery insisted upon in exchange for the immediate delivery of the original model consent form. Both over the telephone and during a half-hour long conference in his office, Mr. Windholz explained to the Hudsons that execution of the release in favor of Gallery would forever preclude them from bringing any legal action against Gallery in connection with the publication of Ms. Hudson's nude photograph in the magazine.
The Hudsons claim Mr. Windholz, at this point, advised them that execution of the release in favor of Gallery was the only manner in which to gain access to the original model consent form. They also claim that the defendant affirmatively counseled them to execute the release. Even though Mr. Hudson argues that he was concerned that Mr. Windholz was rendering erroneous...
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