Jaraysi v. Soloway

• Citation: 451 S.E.2d 521,215 Ga.App. 531
• Decision Date: 07 December 1994
• Docket Number: No. A94A2802,A94A2802
• Parties: JARAYSI v. SOLOWAY et al.
• Court: United States Court of Appeals (Georgia)

Page 521

451 S.E.2d 521

215 Ga.App. 531

JARAYSI v. SOLOWAY et al.

No. A94A2802.

Court of Appeals of Georgia.

Dec. 7, 1994.

Edward J. Sullivan, Atlanta, Michael O. Crain, Athens, for appellant.

Troutman Sanders, Daniel S. Reinhardt, Herbert D. Shellhouse, Atlanta, Christopher J. McFadden, Decatur, Hertz & Link, Houston D. Smith III, Atlanta, for appellees.

BLACKBURN, Judge.

This is a legal malpractice case in which the trial court granted summary judgment to appellees/defendants Christopher J. McFadden, David N. Soloway, and the law firm of Frazier, Soloway & Poorak (hereinafter referred to as the law firm). The appellant/plaintiff, Lee F. Jaraysi, also appeals the trial court's denial of his cross-motion for summary judgment.

Soloway handled the trial of a breach of contract action on behalf of Jaraysi. Jaraysi received a judgment in that action; however, he sought to appeal it as insufficient. Although Soloway and the law firm did not represent Jaraysi in his appeal, Soloway did prepare and provide him with a notice of appeal and written instructions on filing an appeal pro se. Soloway also referred Jaraysi to McFadden for assistance with the appeal. Neither Soloway nor McFadden informed Jaraysi that a discretionary application was required pursuant to OCGA § 5-6-35(a)(6). On December 23, 1991, Jaraysi, pro se, filed a direct appeal of the jury's verdict to this Court, and the appeal was subsequently dismissed on January 19, 1993, based upon Jaraysi's failure to file a discretionary application since the judgment entered thereon was less than $10,000. See OCGA § 5-6-35(a)(6).

In the instant action, Jaraysi brought suit against Soloway, McFadden, and the law firm, asserting that they were negligent in failing to discover Soloway's failure to inform him of the appropriate appellate procedure, that Soloway negligently drafted the promissory note in 1987 (the subject of Jaraysi's breach of contract suit), and that McFadden negligently failed to inform him that his appeal was subject to dismissal for the failure to file a discretionary application.

1. Initially, Jaraysi maintains that the trial court erred in granting summary judgment in favor of McFadden, Soloway, and the law firm, and in denying his motion for summary judgment because he would have been successful on appeal in obtaining a reversal of the lower court's judgment.

"In a suit for legal malpractice, proof that the attorney's negligence proximately caused the client's harm is necessary for recovery. In the context of a legal malpractice case in which the negligence alleged is the failure of an attorney to [properly advise a client on] fil[ing] or perfect[ing] an appeal, proximate cause may be established by showing that the appellate court would have reversed and that upon remand to the lower court the client would have obtained a more favorable result." (Citations and punctuation omitted.) Fine & Block v. Evans, 201 Ga.App. 294, 295, 411 S.E.2d 73 (1991). A determination of whether an appeal to this court would have been successful is a question of law, and hence, proper for summary adjudication. Id.

In the underlying breach of contract action, Jaraysi had obtained the services of Soloway to draft all the documents associated with the sale of his gasoline and convenience store business and the lease of the property on which the business was located. The purchasers made a $25,000 down payment on the $135,000 purchase price for the business, and promised to pay Jaraysi the remaining $110,000 balance in monthly installments over a 15-year period as provided in the promissory note. The promissory note was executed by the purchasers in exchange for "value received." They further agreed to lease the premises starting at $2,500 per month for a 15-year period. The purchasers failed to make the first scheduled payment on the promissory note and it was declared in default. Two months later, the commercial building leased to the purchasers of the business was destroyed by fire. The purchasers had made payments pursuant to the lease agreement until the time of the fire.

Jaraysi contends that the trial court erred in failing to rule that the subject promissory note was an unconditional contract as a matter of law, and therefore, its terms could not be altered by parol evidence. We cannot agree. The record viewed in the light most favorable to Jaraysi as the nonmovant shows that the promissory note, the contract for the sale of the business, and the commercial lease of the premises, were executed simultaneously. Under Georgia's Uniform Commercial Code, an instrument may be modified or affected by any other written agreement executed as a part of the same transaction. OCGA § 11-3-119(1). See also Hunter v. McLelland, 143 Ga.App. 746(1), 240 S.E.2d 153 (1977). The promissory note is not complete on its face and is ambiguous as it does not specify the consideration received by Jaraysi in exchange for the note.

Paragraph 7 of the lease agreement provided that the purchasers were responsible for maintaining the leased premises in good order and repair. Jaraysi was responsible for "any...