Littleton v. Stone

• Decision Date: 12 March 1998
• Docket Number: No. A97A1869,A97A1869
• Citation: 231 Ga.App. 150,497 S.E.2d 684
• Parties: , 98 FCDR 1181 LITTLETON et al. v. STONE.
• Court: Georgia Court of Appeals

Page 684

497 S.E.2d 684

231 Ga.App. 150, 98 FCDR 1181

LITTLETON et al. v. STONE.

No. A97A1869.

Court of Appeals of Georgia.

March 12, 1998.

Beltran & Associates, Frank J. Beltran, Charlotte K. Perrell, Atlanta, for appellants.

Shapiro, Fussell, Wedge, Smotherman, Martin, Robert B. Wedge, Mary L. Hahn, Atlanta, Thomas H. Baxley, Augusta, for appellee.

SMITH, Judge.

In this legal malpractice case, Billy J. Littleton and Linda Faye Littleton appeal from the trial court's grant of summary judgment to William S. Stone, the attorney who represented them in a medical malpractice action. In the medical malpractice suit ("the underlying action"), the Littletons sought recovery for the allegedly negligent delivery of their infant daughter, who died shortly after she was born. ¹ This legal malpractice action arose out of the dismissal by Stone of the Littletons' medical malpractice action in superior court and its subsequent refiling in state court. The principal issue presented in this appeal is whether Stone was guilty of malpractice in dismissing and refiling that action pursuant to OCGA §§ 9-11-41(a) and 9-2-61(a), when both the dismissal and the renewal took place after the expiration of the applicable statute of ultimate repose but before the issuance of this Court's opinion in Siler v. Block, 204 Ga.App. 672, 420 S.E.2d 306 (1992). We conclude that he was not, and we affirm the trial court's grant of summary judgment in his favor.

1. The Littletons contend the trial court erred in determining that Stone's voluntary dismissal and renewal of the underlying action did not constitute legal malpractice. The Littletons' medical malpractice cause of action arose on the date their child was delivered, April 6, 1986. The original medical malpractice action was timely filed on March 31, 1988, the applicable statute of limitation being two years. OCGA § 9-3-71(a). It was dismissed without prejudice by Stone in superior court on April 16, 1992, and refiled in state court on May 20, 1992. The renewal statute, OCGA § 9-2-61(a), expressly contemplates that its use will avoid the procedural bar of applicable statutes of limitation; it does not mention statutes of ultimate repose. Siler, supra, represents the first Georgia appellate decision holding that "the renewal provisions of OCGA § 9-2-61(a) may not be used to avoid the bar of the statute of repose." Id. at 674(1), 420 S.E.2d 306. Siler was decided by this Court on May 20, 1992, over a month after Stone had dismissed the underlying action in superior court and the very same day it was refiled in state court.

Subsequently, on March 15, 1993, the Supreme Court of Georgia addressed this issue for the first time in Wright v. Robinson, 262 Ga. 844, 426 S.E.2d 870 (1993). The Court in Wright held that "[a] statute of repose stands as an unyielding barrier to a plaintiff's right of action," destroying "existing rights so that, on the expiration of the statutory period, the cause of action no longer exists. [Cit.]" Id. at 845(1), 426 S.E.2d 870. Because a renewal action is a new action, rather than a continuation of the original case, and a new action cannot be based upon a "nonexisting cause of action," a renewal action cannot be brought after dismissing a prior action after the expiration of the statute of repose. Id. at 846(1), 426 S.E.2d 870. The law is now clear in this regard.

At the time the underlying suit was dismissed and refiled in this case, however, the law was not so clear. Siler, supra, was this Court's first pronouncement on this issue. We cannot agree with the Littletons that the holding in Siler was "foreshadowed" by the holding in Hill v. Fordham, 186 Ga.App. 354, 367 S.E.2d 128 (1988). Although this Court relied on Hill in its decision in Siler, Hill was relied on as authority only for the distinction between statutes of limitation and statutes of repose. Siler, supra at 673, 420 S.E.2d 306. Wright, moreover, was decided by a divided Supreme Court, with Justice Benham dissenting from "the majority's conclusion that the statute of repose abrogates [a] timely-filed renewal action." Id. at 846, 426 S.E.2d 870 (Benham, Justice, dissenting). ² As pointed out in Justice Benham's dissent, a statute of repose is not "in all cases, the absolute unyielding barrier the majority has erected." Id. at 847, 426 S.E.2d 870. It is subject to some exceptions. Id.

This is important, because attorneys are not ensurers of the results of their efforts on behalf of clients. They will not be held to have breached applicable standards of care except in cases of wilful or negligent failure to apply well-known and accepted legal principles and procedures, either because they are ignorant of them, or because they have failed to act reasonably to protect clients' interests. Jones, Day, Reavis & Pogue v. American Envirecycle, 217 Ga.App. 80, 83(2), 456 S.E.2d 264 (1995). "Unless the law is so well settled, clear, and widely recognized, an attorney acting in good faith and to the best of his knowledge will be insulated from liability for adverse results." (Citation and punctuation omitted.) Id. at 83-84(2), 456 S.E.2d 264. See also Berman v. Rubin, 138 Ga.App. 849, 853, 227 S.E.2d 802 (1976) (evidence of "professional custom" necessary to show acceptability of particular conduct).

In this case, Stone presented his own affidavit in support of his motion for summary judgment. He stated in it that based upon his experience and knowledge as a practicing attorney, "[i]t was the general practice at that time to rely upon the renewal statute regardless of whether a statute of limitations or a statute of repose had expired as of the time of the dismissal of a case, provided that the original case was filed in a timely fashion." Although the Littletons produced the affidavit of their own expert in opposition to the motion and that expert opined that Stone was negligent, the Littletons' expert did not contradict Stone's opinion in this particular. Stone's assertion regarding the prevailing practice at the time of the dismissal and refiling of the Littletons' action therefore stands uncontradicted.

We now know that the renewal statute may not be used to avoid the expiration of the statute of repose, but for purposes of this action, it stands uncontradicted that at the time Stone dismissed the Littletons' medical malpractice action and refiled it, this principle was not "well settled, clear, and widely recognized." Jones, Day, Reavis & Pogue, supra. Rather, it was the general view that the renewal statute could be used to avoid both statutes of limitation and statutes of repose. It follows that it could not have been a breach of the accepted standard for Stone to use the renewal statute in an attempt to avoid the bar created by the expiration of the statute of repose. The trial court therefore did not err in determining that Stone's voluntary dismissal and refiling of the underlying action did not constitute malpractice.

2. The Littletons contend the trial court erred in finding that Stone's failure to research the law, his failure to advise them of known risks inherent in dismissing the underlying action, and his failure to advise them of the voluntary dismissal did not constitute legal malpractice.

We note that contrary to the implication inherent in these enumerations, the trial court did not "find" that Stone failed to research the law, to advise the Littletons of known risks in dismissing the underlying action, or to advise them of the dismissal. These alleged failures were simply contentions of the Littletons below. When the trial judge reached a decision on Stone's motion for summary judgment, he notified the parties' counsel of his decision by letter, requesting Stone's counsel to draw a proposed order, and listing these contentions and his decision that they were not meritorious.

After receiving the letter, Stone's counsel expressed concern that the trial court's letter not be misconstrued as...