Szurovy v. Olderman
| Decision Date | 09 March 2000 |
| Docket Number | No. A99A1919.,A99A1919. |
| Court | Georgia Court of Appeals |
| Parties | SZUROVY v. OLDERMAN et al. |
OPINION TEXT STARTS HERE
Beltran & Associates, Frank J. Beltran, Charlotte K. Perrell, Atlanta, for appellant.
Troutman Sanders, Daniel S. Reinhardt, Carmie L. McCurry, Toni A. Friess, Atlanta, for appellees.
Rebecca Szurovy appeals the grant of summary judgment in her legal malpractice action against the attorneys who represented her in a divorce action: John Olderman, and the law firm of Davis, Matthews & Quigley, P.C. For the following reasons, we reject Szurovy's arguments and affirm.
Szurovy filed a complaint against defendants for legal malpractice and breach of fiduciary duty, alleging that they negligently failed to negotiate an award of alimony for her and failed to preserve her right to seek future alimony from her former husband, Edward Szurovy. She claimed that as a result of defendants' acts she is now barred from pursuing a modification action to seek alimony from Mr. Szurovy as a result of a change in his circumstances and financial wealth. Ms. Szurovy's complaint included counts for negligence, breach of contract, and breach of fiduciary duty; she also set forth a claim for punitive damages and for various expenses of litigation. Contemporaneously with the complaint Ms. Szurovy filed a lawyer's affidavit which stated that defendants' conduct in representing Ms. Szurovy constituted legal malpractice, specifically in their failure to preserve her rights to alimony and to provide her with the correct legal advice as to her right to seek future alimony.
After answering the complaint, defendants filed a motion for summary judgment, arguing that, as a matter of law, Ms. Szurovy did not suffer damages or that her damages were too speculative to recover for malpractice. The court granted the motion, and Ms. Szurovy appealed.
The record contains the following undisputed facts: in July 1993 Ms. Szurovy filed a lawsuit against Mr. Szurovy for divorce, alimony, child support, and equitable distribution of property. The court held a temporary hearing, and Mr. Szurovy was ordered to pay $2,000 per month in support for Ms. Szurovy and the minor children; he never fully complied with that order.
The case was scheduled for trial, but on the trial date, Ms. and Mr. Szurovy negotiated a settlement through counsel. The agreement granted Ms. Szurovy custody of the children; outlined a visitation schedule; required Mr. Szurovy to pay for an SAT course; required Mr. Szurovy to pay child support of $1,500 per month until the children reached the age of 18; required Mr. Szurovy to split the medical and dental costs not covered by insurance; awarded Ms. Szurovy all proceeds from the sale of the marital residence; required Mr. Szurovy to carry life insurance; provided for general indemnification for debts; allowed Mr. Szurovy to claim one child as a deduction for 1993; and required Mr. Szurovy to pay $1,000 of Ms. Szurovy's attorney fees. The terms of the agreement were read into the record and affirmed by both parties and their counsel in open court. Because the parties were later unable to agree upon the written terms of a settlement document, the Divorce Decree incorporated a copy of the trial transcript. The agreement did not mention alimony. Mr. Szurovy did not comply with the divorce decree and did not make child support payments until Ms. Szurovy filed a motion for contempt and Mr. Szurovy spent time in jail. Apparently, Mr. Szurovy still owes about $13,000 in back child support.
The evidence regarding the discussions about alimony which Ms. Szurovy and Olderman had is disputed. In her deposition, Ms. Szurovy admitted that she and Olderman discussed alimony early on, but she claimed that on the day the case was settled, they did not discuss alimony. Ms. Szurovy testified that she wanted alimony and that she did not realize that she had waived her alimony rights by agreeing to the settlement. Ms. Szurovy admitted that she was not present for the settlement negotiations between Olderman and Mr. Szurovy's attorney. On the other hand, Olderman claimed that he and Ms. Szurovy repeatedly discussed alimony and discussed the fact that Mr. Szurovy had repeatedly refused to pay alimony. Olderman testified that he told Ms. Szurovy that, in the absence of any provision for alimony, she was waiving her present and future rights to it. The lawyer who represented Mr. Szurovy also testified that his client repeatedly refused to pay alimony. He recalled that Olderman tried to provide in the agreement for Ms. Szurovy's future right to alimony, but that his client would not agree to these provisions.1 In her sole enumeration of error, Ms. Szurovy argues that the court erred in granting summary judgment because the question of proximate causation was a jury question. She claims that summary judgment would have been appropriate only if defendants could show that there was no possibility that alimony would have been awarded in the underlying legal action. Ms. Szurovy contends that defendants did not meet their burden of proving that there were no damages and they simply showed that damages were difficult to ascertain. See generally Freeman v. Pittman, 220 Ga.App. 672, 469 S.E.2d 543 (1996).
Defendants argue that summary judgment was proper because Ms. Szurovy failed to present any evidence regarding proximate cause or damages. They argue that Ms. Szurovy did not provide any evidence that defendants' conduct caused her to negotiate a less favorable settlement than she otherwise would have and that, accordingly, her argument that she unknowingly waived her alimony rights must fail. In this regard, defendants cite to the settlement agreement between the Szurovys which provided for $1,500 in child support and Ms. Szurovy's possession of the marital residence. They argue that Olderman did discuss alimony with her, and they...
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