Jankowski v. Taylor, Bishop & Lee

• Decision Date: 17 December 1980
• Docket Number: No. 36527,36527
• Citation: Jankowski v. Taylor, Bishop & Lee, 273 S.E.2d 16, 246 Ga. 804 (Ga. 1980)
• Parties: JANKOWSKI et al. v. TAYLOR, BISHOP & LEE et al.
• Court: Georgia Supreme Court

Page 16

273 S.E.2d 16

246 Ga. 804

JANKOWSKI et al. v. TAYLOR, BISHOP & LEE et al.

No. 36527.

Supreme Court of Georgia.

Argued Sept. 10, 1980.

Decided Nov. 25, 1980.

Rehearing Denied Dec. 17, 1980.

W. Jan Jankowski, Savannah, for appellants.

Wallace E. Harrell, William P. Tinkler, Jr., Brunswick, for appellees.

CLARKE, Justice.

Defendant law firm and individual attorneys filed a shareholders derivative suit on October 26, 1972, on behalf of Joseph J. Lahiff and others against Euley T. Morgan, the principal officer and director of L.E.P.A. Investments, Inc. They prayed for judgment in the amount of $350,000 for acts of malfeasance-misfeasance and fraud. The applicable statute of limitation on that claim expired April 13, 1975.

On January 28, 1974, the case was called for trial. When counsel for plaintiffs failed to announce ready, the trial court dismissed the action with prejudice for want of prosecution. Counsel for plaintiffs, defendants here, were not present at the calendar call, having requested another attorney to answer the call. After belatedly learning that the case had been dismissed, counsel for plaintiffs refiled the suit on July 10, 1975, in the name of Joseph J. Lahiff, Walter J. Jankowski and others. Morgan answered and raised the statute of limitation found in Code Ann. § 22-714, and counterclaimed. Morgan's motion to dismiss was heard on September 4, 1975, and the court dismissed the complaint, specifically stating that the dismissal did not apply to the counterclaim.

On April 9, 1979, Walter Jankowski, individually and in his capacity as a shareholder and on behalf of L.E.P.A. Investments, Inc., brought the present action for legal malpractice against his former legal counsel, individually and as a professional corporation. Defendants answered and raised the statute of limitation. The trial court sustained defendant's motion to dismiss.

The Court of Appeals, 154 Ga.App. 752, 269 S.E.2d 871, holding that the applicable statute of limitation for an oral contract is four years, Code Ann. § 3-706, affirmed the trial court's dismissal of the malpractice action.

The basic issues to be examined are two. First, when does the statute of limitation begin to run; and, second, does the failure to correct a prior wrongful act constitute a separate breach for which the client has a cause of action?

(1) It has been long recognized and is well established that a statute of limitation begins to run on the date a cause of action on a claim accrues. In other words, the period within which a suit may be brought is measured from the date upon which the plaintiff could have successfully maintained the action. Hoffman v. Insurance Co. of N. A., 241 Ga. 328, 245 S.E.2d 287 (1978); Limoli v. First Georgia Bank, 147 Ga.App. 755, 250 S.E.2d 155 (1978). By statute, Georgia recognizes the accrual of a right of action for a tort when there is a violation of a specific duty accompanied with damage. Code Ann. § 105-104. This statutory rule appears to be compatible with the general rule in most jurisdictions to the effect that both the wrongful act and the damage must exist in order for there to be a cause of action.

At first glance, it would appear that Georgia cases are in conflict with this proposition. In Mobley v. Murray County, 178 Ga. 388, 173 S.E. 680 (1933), this court held that the "true test to determine when the cause of action accrued is 'to ascertain the time when the plaintiff could first have maintained his action to a successful result.' ... A right of action has its inception from the time there has been a breach of duty; and this would entitle the party to file suit for the breach, without regard to whether any actual damage had in fact resulted." In legal malpractice cases, this court has followed the doctrine that a right of action arises immediately upon the wrongful act having been committed, even though there are no special damages. Crawford v. Gaulden, 33 Ga. 173 (1862); Lilly v. Boyd, 72 Ga. 83 (1883); Gould v. Palmer & Read, 96 Ga. 798, 22 S.E. 583 (1895). A closer examination of these authorities alleviates much of the concern over the possible conflict with the general rule and statute. These cases hold that it is not the special damage or injury resulting from the wrongful act which gives rise to a cause of action, but they also hold that the fact that nominal damages may be recovered is sufficient to create a cause of action and therefore result in the statute of limitation's beginning to run. Even...