Legacy Homes, Inc. v. Cole
| Decision Date | 15 July 1992 |
| Docket Number | No. A92A0595,A92A0595 |
| Citation | 421 S.E.2d 127,205 Ga.App. 34 |
| Parties | LEGACY HOMES, INC. et al. v. COLE. |
| Court | Georgia Court of Appeals |
Fletcher & McCurdy, W. Phillip McCurdy III, William A. Fletcher, Jr., Norcross, for appellants.
Smith, Gambrell & Russell, Margaret A. Murphy, David A. Handley, Thomas E. McCarter, McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Linda Finley, Atlanta, for appellee.
The trial court granted summary judgment for appellee, an attorney, on appellants' claim for legal malpractice. In their sole enumeration of error, appellants contend summary judgment was erroneously granted because genuine issues of material fact remain.
Appellants Legacy Homes Inc. ("Legacy") and Tina Playford ("Playford"), president and sole owner of Legacy, were builders of upscale houses in East Cobb. Playford had been a real estate agent and broker before becoming a builder. Duane Noel ("Noel") contracted with appellants to purchase one of their newly-built houses in an all-cash transaction. The selling agent scheduled the closing and arranged for appellee to handle it as closing attorney. On the day of the closing, Noel appeared without the certified checks to pay for the house, but represented that he had the funds and would deliver them to appellee immediately after the closing. It is undisputed that by the time the parties sat down at the closing table to sign the papers, all parties--including Playford, who had attended many previous closings as an agent and broker as well as a builder--knew that the purchaser had not brought his cash. Nonetheless, Playford and the others present proceeded with the closing, with the understanding that Noel would go home and get the checks and return with them to appellee's office immediately afterward. Appellants signed the warranty deed and gave it to appellee, who signed it as notary but did not put his seal on it or give it to Noel pending receipt of Noel's checks. Appellee also disbursed the anticipated proceeds of the sale by issuing checks from his trust account, and all parties signed the settlement statement.
Noel never returned with the certified checks, and subsequently fled the jurisdiction. Appellee stopped payment on the checks issued from his trust account, and all were voluntarily returned except one which was issued to appellants in the amount of $18,540 and had been deposited immediately after the closing. After appellants notified appellee they intended to sue him for legal malpractice, appellee brought an action for declaratory judgment and return of the $18,540 retained by appellants, and appellants brought this counterclaim for legal malpractice. Appellants alleged that appellee did not act in accordance with appropriate standards when he allowed the closing to proceed despite the purchaser's failure to have cash in an all-cash transaction, and when he subsequently stopped payment on the checks drawn against his trust account. Appellants further alleged that this "sale" to Noel prevented them from transferring the property to anyone else, ultimately resulting in foreclosure of the property and appellants' inability to obtain any further loans. The trial court granted appellee summary judgment, finding that the record presented no issue of fact regarding the existence of an attorney-client relationship between appellee and appellants.
" Guillebeau v. Jenkins, 182 Ga.App. 225(1), 355 S.E.2d 453 (1987). "[T]he basic question in regard to the formation of the attorney-client relationship is whether it has been sufficiently established that advice or assistance of the attorney is both sought and received in matters pertinent to his profession." Huddleston v. State, 259 Ga. 45(1), 376 S.E.2d 683 (1989) (citing Guillebeau, supra). In Guillebeau, this court held there was no attorney-client relationship between the seller of real property, an 83-year-old widow, and the closing attorney, even though the seller had suggested using the closing attorney's firm, had used the firm for other matters in the past, and paid the closing attorney's fees pursuant to the terms of the real estate contract. We...
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