Jerry Lipps, Inc. v. Postell
| Decision Date | 08 September 1976 |
| Docket Number | No. 3,No. 52365,52365,3 |
| Citation | 229 S.E.2d 78,139 Ga.App. 595 |
| Parties | JERRY LIPPS, INC. v. G. H. POSTELL et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The relationship of attorney and client is fiduciary in character, but this does not extend beyond the subject matter for which the services of the lawyer have been retained. Where it appears that certain legal specialists in ICC work were employed by a motor carrier strictly on a case by case basis, and where the attorneys had never been informed that the corporation was interested in acting on certain route information furnished it, an agreement to represent an employee desirous of going into business for himself in regard to the subject matter of non-confidential information furnished several months previously, in which the corporation had manifested no interest, and after the attorney-client relation terminated, was not a breach of a fiduciary duty.
The appellee Postell and Hall are attorneys who specialize in motor carrier appearances and litigation, among their clients bring Jerry Lipps, Inc., a corporation largely owned by Jerry Lipps and specializing in large multi-state trucking operations. Between November, 1969, and March, 1971, the corporation had employed the firm in a number of representations involving legal fees of approximately $37,000. The representation was on a case by case basis, it being understood that the corporation first offered its business to a Chicago firm and, on declination, then turned the specific problem over to the appellees, and also it was understood that they in turn were at liberty to represent other motor carriers.
This litigation started when the attorneys sued their former corporate client for a balance on the fee. Jerry Lipps, Inc. then filed a superior court action against Postell, Hall and Jerry Todd (the latter a managerial employee of the company), alleging a conspiracy between them to create a new competing business within Lipps' territory by forming a Florida corporation, obtaining for themselves assignments of operating authorities Lipp was attempting to purchase through the defendants as his agents for the use of the competing firm, failing to negotiate for him in good faith, and otherwise breaching their fiduciary duties as his agents. A restraining order was granted as to the civil court case. Postell and Hall thereafter moved for and were granted summary judgment, and the appeal is from this adjudication.
Levine, D'Alessio & Cohn, Sam F. Lowe, Jr., Atlanta, for appellant.
Long, Weinberg, Ansley & Wheeler, W. Meade Burns, Jr., Dan B. Wingate, Louis F. McDonald, John D. Jones, Atlanta, for appellees.
The record in this case runs over 2,000 pages including lengthy depositions by all parties concerned, and it is clear that there was a full airing of all the facts. We will therefore not concern ourselves with the generally conclusory allegations of the verified complaint. Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga.App. 737, 165 S.E.2d 441. As we view the case, any liability on the part of the attorneys, the only defendants here involved, depends on the simple question of whether they breached a fiduciary duty arising out of their relationship with Jerry Lipps, Inc. which resulted in damage to the latter. This in turn depends primarily on a chronological statement of events to ascertain whether these defendants, while acting as agents for Lipps, acted for themselves to the detriment of their client (Code § 4-204; Smith v. Pennington, 192 Ga. 478, 15 S.E.2d 727) in such manner as to make a profit for themselves from the relationship.
The facts are simple. Postell and Hall also represented Superior Trucking Company of Atlanta, which held various 'operating authorities' or licenses to carry certain cargo to various locations. Still another firm requested information concerning possible assignment of the unused portion of the authority. Nothing developed from this. On April 14 and April 20, 1970, the attorneys wrote Todd, with a copy to Lipps, offer of $25,000 might be made. Postell purchasable, stating the writer felt it would not be worth over $35,000 and possibly an offer of $2k,000 might be made. Postell and Hall swear no interest was expressed, and in May or June Lipps stated he was not interested. Lipps admitted he put the...
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...The retainer expressly delimited representation, and it therefore offers no aid to Plaintiff's claim. See Jerry Lipps, Inc. v. Postell, 139 Ga.App. 595, 595, 229 S.E.2d 78 (1976) (“The relationship of attorney and client is fiduciary in character, but this does not extend beyond the subject......
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...that Tante breached his fiduciary duties. Tante had a fiduciary relationship with the Herrings. OCGA § 23-2-58; Jerry Lipps, Inc. v. Postell, 139 Ga.App. 595, 229 S.E.2d 78. Thus, his first duty was loyalty to them and he was obligated not to put himself in a position where he had interests......
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