In re
| Citation | 745 S.E.2d 787,323 Ga.App. 311 |
| Decision Date | 21 October 2013 |
| Docket Number | A13A0509.,Nos. A13A0507,A13A0508,s. A13A0507 |
| Parties | ANDERSON v. JONES, et al. Norton v. Anderson. Jones, et al. v. Anderson. |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
Tony Center, for Anderson.
McKenna, Long & Aldridge, J. Randolph Evans, Oliver Maner, Patrick T. O'Connor, Timothy D. Roberts, for Jones et al.
Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry L. Readdick, for Norton.
Ashden Anderson (formerly Norton) filed suit against her father, Scott Norton, and attorney Billy Jones and Jones' law firm, Jones, Osteen and Jones (collectively “Jones”), alleging that Norton and Jones breached fiduciary duties owed to her and that Jones committed legal malpractice. Norton and Jones filed motions for summary judgment, which the trial court granted. Anderson appeals from that ruling. For reasons that follow, we affirm the trial court's grant of summary judgment in Case No. A13A0507.1
Viewed favorably to Anderson,2 the evidence shows that, on December 20, 1995, five-year-old Anderson and her family were involved in a serious motor vehicle accident with a truck driven by an employee of Del Monte Fresh Produce N.A., Inc. (“Del Monte”). Anderson's injuries included a severed left hand, which was reattached, and a fractured skull. Norton sustained a ruptured spleen, broken ribs, a broken sternum, and a broken foot. Anderson's mother, Lisa Cantey (formerly Norton), sustained broken ribs and a scalp laceration. Anderson's younger brother, Jared Norton, was not injured.
Norton and Cantey retained Jones' law firm to represent the family in their personal injury actions. Under the Retainer Agreements, Jones would be paid 33 1/3 percent of all sums recovered without the filing of a lawsuit, or 40 percent of all sums recovered if suit were filed, plus out-of-pocket expenses. After investigating the case, Jones filed two lawsuits in connection with the accident: one on behalf of Norton and Cantey, as Anderson's parents and natural guardians, for Anderson's injuries and one on behalf of Norton for his own injuries. The parties' attorneys quickly began discussing settlement; an attorney for Del Monte's insurers agreed that the “real issue” was the extent of Anderson's damages.3 Norton and Jones testified that their primary focus in Anderson's settlement was providing for her long term care by obtaining a life annuity that would provide regular payments totaling more than $6.75 million during her lifetime.
Days before trial was scheduled to begin in Anderson's suit, Jones obtained written authority from Norton and Cantey to settle all of the family's claims as follows: $1.75 million for Anderson's injuries; $2.5 million for Norton's injuries; and $300,000 for Cantey's injuries; for a total of $4.5 million. Jones communicated this demand to Del Monte's insurers as his “rock bottom” to settle all of the family's claims, including those asserted in the two pending lawsuits. Jones testified that he had evaluated each family member's case separately, discussed those values with Norton and Cantey, and then negotiated four separate settlements with Del Monte's insurers. On February 28, 1997, the defendants accepted,4 and Jones asked for written confirmation. According to Jones, the insurer's attorney said, The insurer's attorney's letter referenced “a total payment to [Jones'] clients in the amount of 4.5 million dollars,” which Jones testified the attorney reached by adding the four separate figures.
Norton and Cantey petitioned the Superior Court of Liberty County to approve the $1.75 million settlement for Anderson's injuries.5 They requested that the settlement be disbursed as follows: $750,000 to purchase an annuity with specified provisions; approximately $200,000 to providers for outstanding medical bills; $54,000 to Norton and Cantey for medical expenses they had paid; $577,500 (33 1/3 percent) in attorney fees; and the balance to Norton and Cantey as Anderson's natural guardians to be used with court approval for Anderson's benefit, support, and maintenance. From the annuity, Norton and Cantey would receive specified lump sum payments, as well as monthly payments, for Anderson's support until she turned 18. In addition, Anderson would receive specified lump sum payments from the annuity from age 18 to age 50, as well as monthly payments,for life, beginning at age 23, for a total of at least $6.75 million over her lifetime. After a hearing, the court determined that the facts set out in the petition were true, that the $1.75 million settlement was fair, reasonable, just, and made in good faith, and that the proposed settlement was in Anderson's best interest. Accordingly, the court approved the settlement. Norton and Cantey then petitioned to be, and the Probate Court of Liberty County appointed them to be, guardians of Anderson's property, specifically the $1.75 million settlement.
On March 31, 1997, Norton and Cantey, for themselves individually and as the parents of Anderson and of Jared Norton, executed a “Release of All Claims” arising from the accident, in favor of Del Monte, its employee, and its insurers, and they acknowledged the receipt of “the gross settlement sum” of $4.5 million. The “Release of All Claims” named Del Monte, its employee, and its two insurers as the entities being released and provided that the payment was in full settlement of the two pending lawsuits. Norton and Cantey also executed a “Settlement Agreement and Release” which specified that the $1.75 million settlement for their claims for Anderson's injuries would be paid as follows: $1 million cash to them as Anderson's parents and guardians of her property, and $750,000 for the annuity as provided in the probate court's approval order. This “Settlement Agreement and Release” also named Del Monte, its employee, and its insurers as the entities being released.
A few months after the settlement, Norton filed for divorce from Cantey; he was awarded custody of Anderson. While the divorce was pending, the probate court appointed Thomas Ratcliffe as a guardian ad litem for Anderson. Ratcliffe petitioned for an accounting of the funds from her settlement. In August 2008, the parties reached a settlement to close the accounting proceeding, with Norton and Cantey each agreeing to pay Anderson $3,200. The parties, including Anderson, who had turned 18 on April 8, 2008, executed a document entitled “Consent Order Regarding the Obligations of Lisa Cantey, ... Scott M. Norton and Thomas J. Ratcliffe, Guardian Ad Litem.” In that consent order, entered August 5, 2008, Anderson agreed, inter alia, that “Norton and ... Cantey never knowingly or wrongfully obtained any money from [Anderson's] annuity[.]” In addition, she agreed that Norton's “total monetary obligation” to her was $3,200 and that, upon tender of that amount, all of Norton's financial obligation to her as a result of the accounting proceeding would be fully satisfied.
In April 2012, Anderson filed the instant action, alleging that Norton breached his fiduciary duty as guardian of her interests. In addition, she alleged that Jones breached his fiduciary duty to her and committed legal malpractice in his representation of her. She attached the affidavit of an expert who opined that, once the family's personal injury claims were settled for a lump sum of $4.5 million, Jones had a conflict of interest in representing her, Norton, and Cantey in apportioning the settlement. The trial court granted summary judgment in favor of Norton and Jones.
1. Anderson contends that the trial court erred in granting summary judgment on her legal malpractice claim against Jones.
In a legal malpractice action, the plaintiff must establish three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.... [W]ith respect to the “ordinary care, skill and diligence” element, the law imposes upon persons performing professional services the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances.
(Citation and punctuation omitted.) Leibel v. Johnson, 291 Ga. 180, 181, 728 S.E.2d 554 (2012).
(a) Anderson's malpractice claim is premised, in part, on her contention that Jones negotiated a $4.5 million global settlementwith Del Monte's insurers and then, in concert with Norton, divided the proceeds among the four family members, with Anderson receiving an unfairly small portion, considering her severe and permanent injuries. Anderson contends that Jones had a conflict of interest in representing all four plaintiffs (or potential plaintiffs) in apportioning the settlement, because the family members were then effectively competing against each other for a share of a finite amount of money.
There is no competent evidence in the record, however, to support Anderson's position that Jones negotiated a lump sum settlement and then allocated the proceeds among the four family members. It is undisputed that Jones negotiated the settlements with attorneys for Del Monte's insurers. Jones is the only person who participated in those negotiations who provided sworn testimony in this case. As noted earlier, he testified that he had evaluated each family member's case separately, discussed those values with Norton and Cantey, and negotiated four separate settlements with Del Monte's insurers.
Although Cantey testified that Jones allowed Norton to take most of the settlement, she lacked personal knowledge of the negotiations between Jones and the opposing attorneys.6...
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