Rollins v. Smith

• Decision Date: 30 October 2019
• Docket Number: A19A1592
• Citation: 836 S.E.2d 585,353 Ga.App. 209
• Parties: ROLLINS v. SMITH et al.
• Court: Georgia Court of Appeals

353 Ga.App. 209

836 S.E.2d 585

ROLLINS

v.SMITH et al.

A19A1592

Court of Appeals of Georgia.

October 30, 2019

Reconsideration Denied November 14, 2019

The Corbett Firm, Christopher Anthony Corbett, for Appellant. Carlock Copeland & Stair, Johannes S. Kingma, Mark A. Rogers ; Cruser Mitchell Novitz Sanchez Gaston & Zimet, William T. Mitchell, Alexa L. Morris ; Hoffer & Webb, Robyn O. Webb, for appellees.

Mercier, Judge.

Danielle Rollins ("Rollins") filed an action for "common law negligence and professional malpractice" and breach of contract against the attorneys and law firms who represented her in a divorce proceeding against her former husband, Glen Rollins ("ex-husband"). Rollins alleged that the attorneys and law firms - Alvah Smith, Barry McGough, Levine Smith Snider & Wilson, LLC, and Warner Bates & McGough, PC (collectively, the "law defendants") - committed legal malpractice and breach of contract by failing to advise her, by failing to adequately protect her interests, and by pressuring her to agree to a Memorandum of Settlement that was deficient in various respects. Rollins sought general, compensatory, special and punitive damages, as well as attorney fees.¹

The law defendants filed motions for summary judgment. After the court held a hearing on the motions but before it entered a ruling thereon, Rollins filed a "Dismissal Without Prejudice" in the action. The law defendants moved to strike Rollins’s dismissal on the ground that Rollins was precluded from dismissing her case without prejudice after the court announced its intention to grant summary judgment against her. The trial court granted the law defendants’ motions to strike the dismissal and for summary judgment. Rollins appeals. For the reasons that follow, we affirm the order striking the dismissal, and we affirm in part and reverse in part the grant of summary judgment.

1. Rollins contends that the trial court erred by striking her dismissal when she filed it without having actual knowledge of the court’s summary judgment decision and before the court entered its ruling. The contention is without merit.

"To the extent our analysis of the trial court’s order involves mixed questions of law and fact, we review the court’s factual findings for clear error and the accompanying legal issues de novo." First Media Group v. Doe , 312 Ga. App. 84, 85, 717 S.E.2d 277 (2011) (citation omitted).

A plaintiff cannot voluntarily dismiss a case unilaterally after the court has expressed an intention to rule in favor of the defendant. Dillard Land Investments v. Fulton County , 295 Ga. 515, 520 (2)(b), 761 S.E.2d 282 (2014). A statement by the trial court that summary judgment "likely would be granted" also precludes the filing of a voluntary dismissal. Leary v. Julian , 225 Ga. App. 472, 474 (1), 484 S.E.2d 75 (1997) (citation and punctuation omitted).

In this case, the court held a hearing on the motions for summary judgment on May 22, 2018. The trial court did not announce a ruling at that time.² On June 12, 2018, the trial court’s staff attorney sent an e-mail from the trial court to counsel for all parties directing counsel for the law defendants "to draft a proposed order granting your motions for summary judgment including analysis of law and fact." On June 14, 2018, before the trial court entered an order on the summary judgment motions, Rollins filed a "Dismissal Without Prejudice," purporting to unilaterally dismiss the action. On June 15, 2018, the law defendants filed a proposed order granting their motions for summary judgment. On June 20, 2018, the law defendants filed a "Joint Motion to Strike Plaintiff’s Defective Notice of Voluntary Dismissal," arguing that Rollins was precluded from unilaterally dismissing the action without prejudice after the trial court had expressed its intention to grant summary judgment against her.

In its order striking the dismissal, the trial court stated:

After considering the entire record in this case, the Court finds that it clearly communicated its intent to grant Defendants’ Motions for Summary Judgment to both parties in this action prior to Plaintiff’s attempt to file a dismissal.

We agree that the trial court expressed such an intention. As detailed above, the court’s staff attorney had sent an e-mail from the court to all parties (including counsel for Rollins) directing only counsel for the law defendants to prepare and submit a proposed order; the only order requested was one granting the motions for summary judgment. In addition, the trial court expressly found in its order striking the dismissal that it had clearly communicated its intention to grant the motions for summary judgment to Rollins before she attempted to dismiss the action. Thus, Rollins has not demonstrated that the trial court’s factual determination that it had communicated to her its intention before her filing was clearly erroneous or that the trial court made an error of law by striking her dismissal. See generally First Media Group , supra at 85, 717 S.E.2d 277.

Rollins’s reliance on First Media Group as requiring reversal in this case is misplaced. In First Media Group , the trial court had not communicated to the plaintiff or her counsel its request to the defendant for a proposed order granting the defendant’s summary judgment motion. Id. at 84, 717 S.E.2d 277. Further, the trial court in First Media Group issued an order expressly finding that it had not communicated any intended disposition to the plaintiff or her counsel and that the plaintiff lacked actual knowledge of any decision by the trial court before filing the dismissal. Id. at 85, 717 S.E.2d 277. The court in the instant case made express findings to the contrary. Given the distinctions between the cases, the trial court here did not err by granting the motion to strike Rollins’s dismissal.

2. Rollins contends that the trial court erred by granting the law defendants’ motions for summary judgment on her legal malpractice claim when genuine issues of material fact remain as to whether the law defendants breached the standard of care and whether those breaches were the proximate cause of her damages.³ We hold that as to one aspect of Rollins’s legal malpractice claim (involving a credit for attorney fees paid for the ex-husband from a joint account), the law defendants are not entitled to summary judgment. As to the remaining aspects of the claim, however, summary judgment is proper.

"Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). "A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case." Szurovy v. Olderman , 243 Ga. App. 449, 452, 530 S.E.2d 783 (2000) (citation and punctuation omitted). "On appeal from a grant of summary judgment, we apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant." Hayek v. Chastain Park Condo. Assn ., 329 Ga. App. 164, 764 S.E.2d 183 (2014).

"To prevail on a legal malpractice claim, a client must prove that (1) [s]he employed the defendant attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) this failure was the proximate cause of damages to the client."

Mosera v. Davis , 306 Ga. App. 226, 230 (2), 701 S.E.2d 864 (2010). "With respect to the ‘ordinary care, skill and diligence’ element, the law imposes upon persons performing professional services the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances." Allen v. Lefkoff, Duncan, Grimes & Dermer , 265 Ga. 374, 375 (2) (a), 453 S.E.2d 719 (1995) (citations, punctuation and emphasis omitted).

Proximate cause in a malpractice action requires a plaintiff to demonstrate that but for the attorney’s error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. These requirements also pertain to malpractice suits arising from settlement negotiations.

Szurovy , supra (citations and punctuation omitted). "The defendant attorney is entitled to summary judgment if he [or she] shows that there is an absence of proof adduced by the client on the issue of proximate cause." Mosera , supra at 230-231 (2), 701 S.E.2d 864 (citation and punctuation omitted).

The trial court granted summary judgment to the law defendants based primarily on a finding that Rollins cannot establish proximate cause and damages on her claims. It is undisputed that the law defendants represented Rollins in the divorce action, so the first element of the test is not at issue in this appeal.

Rollins contends that there is evidence that the law defendants breached the standard of care and that those breaches proximately caused her harm. Specifically, she asserts that the law defendants: (a) failed to comply with the trial court’s temporary order in the divorce action that required Rollins to receive credit for fees paid to the ex-husband’s attorneys from the couple’s joint account; (b) failed to advise her of the tax consequences associated with the settlement; (c) failed to secure an equitable division of the marital assets; and (d) failed to have the ex-husband pay for her legal fees in the divorce case.

Because the second element of the test involves answering the question whether certain professional standards have been met, except in clear and palpable cases..., expert testimony is necessary to establish the parameters of acceptable professional conduct for an attorney, a significant deviation from which would constitute malpractice. This does not mean, however, that expert testimony would also be appropriate with respect to the third and final

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