Nugent v. Myles

• Decision Date: 13 June 2019
• Docket Number: A19A0162,A19A0871
• Citation: 829 S.E.2d 623,350 Ga.App. 442
• Parties: NUGENT et al. v. MYLES. Warren v. Myles.
• Court: Georgia Court of Appeals

350 Ga.App. 442

829 S.E.2d 623

NUGENT et al.

v.MYLES.

Warren

v.Myles.

A19A0162

A19A0871

Court of Appeals of Georgia.

June 13, 2019

Jackson Anthony Dial, John E. Floyd, Earl W. Gunn, Kenneth Bryant Hodges III, Robert G. Tanner, Michael Brian Terry, Atlanta, for Appellant in Case No. A19A0162.

Christopher Stephen Cohilas, for Appellee in Case No. A19A0162.

George R. Lilly II, Thomasville, for Appellant in Case No. A19A0871.

Christopher Stephen Cohilas, Louis Edward Hatcher, Albany, for Appellee in Case No. A19A0871.

Markle, Judge.

These appeals proceed from the trial court’s orders on opposing motions for partial summary judgment in an action for legal malpractice and other torts. Alexandra Myles sued Kenneth S. Nugent, Kenneth S. Nugent, P. C., and Nugent Law Firm, LLC (collectively, "Nugent"), along with her attorney, Christopher Warren,¹ for allegedly failing to litigate, and ultimately settling without her consent, her claims arising from an automobile collision with a City of Smithville ("City") employee. In Case No. A19A0162, Nugent appeals the trial court’s denial of its motion for partial summary judgment on the issue of the legality of the engagement contract between Kenneth S. Nugent, P. C. ("Nugent, P. C.") and Myles; and the grant of Myles’s motion for partial summary judgment, finding that Myles’s underlying personal injury claims against the City were settled in full. In Case No. A19A0871, Warren appeals the trial court’s order as to the settlement issue only. We consolidated the cases for our review. Finding no error in Case No. A19A0162, we affirm. We likewise affirm the trial court’s order in Case No. A19A0871.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Grizzle v. Norsworthy , 292 Ga. App. 303, 303–304, 664 S.E.2d 296 (2008).

So viewed, the record reflects that, in January 2011, Myles was injured in a vehicle collision with a City employee. Days later, Myles retained Nugent, P. C. to litigate her claims arising from the collision, and signed an engagement contract. The firm assigned one of its attorneys, Warren, to represent Myles.

In March 2011, Warren sent an ante litem notice to the City, as required by OCGA § 36-33-5. In December 2011, Warren sent the City’s insurance adjuster a demand letter, indicating that Myles’s total medical expenses were $10,327.76. Warren and the adjuster negotiated a potential settlement throughout the latter half of 2012, and, in January 2013, the adjuster made an offer in the amount of $10,000.

In March 2013, Warren met with Myles to discuss the pending offer, which Myles expressly rejected. During this meeting, Warren realized that he made a mistake and had not filed a complaint before the two-year statute of limitations had run.² Warren advised Myles that there had been a mistake and ended the meeting. Warren then notified Kenneth Nugent of his error.

Despite Myles’s refusal to settle, and without her permission, a week later, Warren accepted an offer in the amount of Myles’s medical expenses, $10,327.76. Warren asked the adjuster to issue the check immediately, which she did, along with a release of the claims for Myles to sign and return. The check indicated that it was for "full and final settlement of all bodily injury claims," whereas the release covered all claims arising from the accident, including personal injury and property damage. Unaware that Warren had accepted the settlement, Myles hired new counsel and terminated Warren and Nugent’s representation on March 29, 2013. However, in June 2013, Nugent P. C. deposited the check into its escrow account. It is undisputed that Myles did not endorse the check, but that someone at Nugent P. C. signed her name to it. The release was never signed.

Myles sued Nugent and Warren, bringing fifteen claims against them, including legal malpractice, Georgia RICO Act violations, conspiracy, conversion, forgery, fraud and breach of fiduciary duty.³ Viewed in its entirety, the complaint, as amended, attacks Nugent’s business model, including its advertising practices and, as Myles repeatedly characterizes it, the "illegal" engagement contract.

In response to this description of the engagement contract, Nugent moved for partial summary judgment, seeking a determination that the engagement contract was legal. Myles moved for partial summary judgment, seeking a ruling that Warren had settled and released her claims against the City and its employee. Following a hearing, the trial court denied partial summary judgment to Nugent, and granted partial summary judgment to Myles on the ground that Warren had settled Myles’s case. These appeals followed.

Case No. A19A0162

1. Nugent argues that the trial court erred when it denied Nugent’s motion for partial summary judgment on the ground that it was not a proper vehicle to decide whether the fee contract was legal.⁴ We discern no error.

(a) OCGA § 9-11-56 (d) provides:

If on motion under this Code section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

Pursuant to OCGA § 9-11-56 (b), a party may move for summary judgment "as to all or any part" of a claim. Thus, under these code sections, "a movant can elect to move for a whole or a partial summary judgment." (Citation omitted.) Kuruvila v. Mulcahy , 264 Ga. App. 626, 627 (2), 591 S.E.2d 491 (2003). However, this provision "does not authorize the initiation of motions the sole object of which is to adjudicate issues of fact which are not dispositive of any claim or part thereof." Robinson v. Franwylie , Inc. , 145 Ga. App. 507, 509 (1), 244 S.E.2d 73 (1978) ; see also Planet Ins. Co. v. Ferrell , 228 Ga. App. 264, 265, 491 S.E.2d 471 (1997). In other words, "[a] motion for summary judgment is designed to test the merits of a claim ." (Citation omitted; emphasis supplied.) Forest City Gun Club v. Chatham County , 280 Ga. App. 219, 221, 633 S.E.2d 623 (2006).

Here, Nugent moved for partial summary judgment, asking the trial court to declare that the engagement contract was legal. Because there was no breach of contract claim raised in the amended complaint, and because the motion failed to address any specific pending claim , the trial court found that Nugent was seeking an impermissible advisory opinion on the legality of the engagement contract. Notably, in its brief before the trial court, Nugent acknowledged that "the issue of an alleged ‘illegal contract’ ... is not remotely relevant to any issue to be decided in this case and is the quintessential red-herring." Nugent then recognized that Myles’s action "has nothing to do with the enforceability of a contract," and that, even if the contract is illegal, it would "not give rise to a separate tort cause of action or criminal indictment." Moreover, twice during the oral argument below, the trial court asked Nugent’s counsel to name the claims to be affected by a ruling on the motion. And, twice, counsel failed to identify any specific claim.

Thus, Nugent’s motion sought only a ruling that the engagement contract was legal, but not a judgment that would be dispositive of any of Myles’s claims. And, because Nugent did not seek to dispose of any claim, in whole or in part, Nugent’s motion for partial summary judgment was not properly before the trial court. See Forest City Gun Club , 280 Ga. App. at 221-222, 633 S.E.2d 623 (a ruling on the proper method of valuation in a condemnation case was not a viable grant of partial summary judgment because it did not reach "the merits of any element of damage"); St. Francis Hosp., Inc. v. Patton , 228 Ga. App. 544 (1), 492 S.E.2d 303 (1997) (in litigation arising from termination of a doctor’s hospital privileges, a determination that the hospital had breached its by-laws was not a proper grant of partial summary judgment because it was "not a ruling that [the doctor] was entitled to recover on his claim."). Accordingly, we find no error in the trial court’s denial of Nugent’s motion.

(b) Before this Court, Nugent explains for the first time that a determination of the legality of the contract would dispose of three claims, namely, the claims for fraud in the inducement, breach of fiduciary duty, and injunctive relief.

The purpose behind summary judgment is to dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial. This purpose is thwarted when a party may withhold meritorious legal arguments until appeal. Allowing a party to raise new arguments also ignores the duties and responsibilities placed on the parties by OCGA § 9-11-56. Each party has a duty to present his best case on a motion for summary judgment.

(Citation omitted.) Lafontaine v. Alexander , 343 Ga. App. 672, 682 (7), 808 S.E.2d 50 (2017). "Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court." Pfeiffer v. Ga. Dept. of Transp. , 275 Ga. 827, 829 (2), 573 S.E.2d 389 (2002) ; see also Lowery v. Atlanta Heart Assoc., P. C. , 266 Ga. App. 402, 404 (2), 597...