Loftin v. Brown

• Decision Date: 10 June 1986
• Docket Number: No. 71801,71801
• Citation: Loftin v. Brown, 346 S.E.2d 114, 179 Ga.App. 337 (Ga. App. 1986)
• Parties: LOFTIN v. BROWN.
• Writing for the Court: BEASLEY; DEEN, P.J., and BENHAM
• Court: Georgia Court of Appeals

Page 114

346 S.E.2d 114

179 Ga.App. 337

LOFTIN v. BROWN.

No. 71801.

Court of Appeals of Georgia.

June 10, 1986.

Dean Covington, Rome, for appellant.

Albert F. Burkhalter, Jr., Rome, for appellee.

BEASLEY, Judge.

Loftin employed attorney Brown to examine title and prepare a title certificate and deed to certain real property owned by a third party. In his subsequent suit against the attorney, Loftin maintained that Brown had given an incorrect land description in the deed and had omitted from the title opinion certain tax liens existing on the property, resulting in a loss to him of $6,815. He sought judgment for that amount, plus attorney fees, alleging that Brown "was negligent in the performance of his duties and did not conform to a standard of conduct raised by law for the protection of plaintiff against unreasonable risk or harm; defendant has breached this standard of conduct; and there is a legally attributable causal connection between this breach by defendant, and the injury as alleged by plaintiff; and there is a loss or damage flowing ... as a result of the alleged breach of duty; ... there has been a loss and damage to plaintiff's legally protected interest as result of the breach of this contract, as expressed in the title certificate from defendant to plaintiff."

Both parties moved for summary judgment. Defendant contended that the contract for legal services had been oral, the defective instruments were produced on January 9, 1979, and the suit filed on January 9, 1985 was untimely as being beyond the four-year statute of limitation for a legal malpractice action. Plaintiff countered that the title opinion and certificate issued by Brown constituted a written contract between himself and Brown so that the applicable statute of limitation was six years for an action on a written contract. He further maintained that Brown had signed a promissory note for $3,000 dated January 14, 1985 in settlement of the suit, and in compliance with the note's terms made a $1,000 payment on it. This, Loftin argued, constituted an acknowledgment of Brown's liability and a renewal of the debt so as to extend the date on which the statute of limitation would begin to run.

The trial court denied summary judgment to the client Loftin and granted summary judgment to the defendant attorney, having concluded that the applicable statute of limitation was four years in that there was no evidence of a written contract of employment between the parties originally and the promissory note did not sufficiently identify itself as a renewal of the debt alleged in the matter but was rather an independent statement of liability arising out of a claimed breach of that contract of employment.

1. Appellant asserts that the trial court erred in applying a four-year statute of limitation.

The gravamen of this suit is a claim of legal malpractice. "In Georgia legal malpractice is based upon the breach of a duty imposed by the attorney-client contract of employment, and as such, the applicable statute of limitation is four years. [OCGA § 9-3-25] ... [A]n action for attorney malpractice accrues and the period of limitations begins to run, from the date of the attorney's breach of duty, that is, from the date of the alleged negligent or unskillful act." Riddle v. Driebe, 153 Ga.App. 276, 279, 265 S.E.2d 92 (1980).

Here it is undisputed that the allegedly defective documents were prepared by the attorney on January 9, 1979, and that the suit was not filed until six years later on January 9, 1985. Appellant claims that the action is based on a written contract, i.e., the erroneous instruments, but that is not the case. The only underlying contractual relationship here is the contract of employment to perform the legal services and such was not a written contract at all but rather an oral one. The instruments in question were not in part or in whole the contract but were the work product or the objective of the contract for services. Moreover, "[t]his is not a suit on a contract but rather a suit based on the tort of negligence." Kirby v. Chester, 174 Ga.App. 881, 884(2), 331 S.E.2d 915 (1985).

All pleadings are to be construed to do substantial justice and to serve the best interests of the pleader. OCGA § 9-11-8(f); Rodgers v. Ga. Tech Athletic Assn., 166 Ga.App. 156, 161(2)(b), 303 S.E.2d 467 (1983). Applying this principle, even if we give plaintiff's pleadings the broadest of constructions to find a breach of contract claim distinct from the legal malpractice claim, the suit would be controlled by a four-year statute of limitation, for the contract at issue is a parol one. OCGA § 9-3-25.

2. Loftin further maintains that the court erred in concluding that the promissory note from Brown to him was a statement of liability independent of the suit and in failing to find that the note and $1,000 payment...