Tuten v. Joel

• Court: South Carolina Court of Appeals
• Writing for the Court: FEW, C.J.
• Citation: Tuten v. Joel, 410 S.C. 104, 763 S.E.2d 54 (S.C. App. 2014)
• Decision Date: 27 August 2014
• Docket Number: No. 5268.,5268.
• Parties: Julie TUTEN, Respondent, v. David Charles JOEL, individually and d/b/a Joel & Associates, P.A. and/or Joel & Associates; David C. Joel, Attorney at Law, P.C.; and Heather A. Glover, Defendants, Of whom David Charles Joel is the Appellant. Appellate Case No. 2012–211915.

410 S.C. 104

763 S.E.2d 54

Julie TUTEN, Respondent

v.David Charles JOEL, individually and d/b/a Joel & Associates, P.A. and/or Joel & Associates; David C. Joel, Attorney at Law, P.C.; and Heather A. Glover, Defendants

Of whom David Charles Joel is the Appellant.

Appellate Case No. 2012–211915.

No. 5268.

Court of Appeals of South Carolina.

Heard April 8, 2014.

Decided Aug. 27, 2014.

Rehearing Denied Dec. 17, 2014.

Certiorari Denied May 7, 2015.

Harvey MacLure Watson, III and Desa Allen Ballard, Ballard & Watson, both of West Columbia; and Stephanie Nichole Weissenstein, of Gilbert, for Appellant.

Tom Griffin Woodruff, Jr., of Aiken, for Respondent.

Opinion

FEW, C.J.

David Charles Joel appeals from a $275,000 jury verdict against him for legal malpractice in connection with his representation of Julie Tuten. Joel argues the trial court erred in: (1) granting a partial directed verdict for Tuten; (2) denying his directed verdict motion; and (3) denying his motion for a new trial nisi remittitur. We affirm.

I. Facts and Procedural History

Joel is an attorney licensed in Georgia. Starting at least in 1993, he maintained a personal injury law practice in Atlanta. In 1996, he opened an office in Columbia, South Carolina. He advertised extensively in the yellow pages of phonebooks all over South Carolina under the name Joel & Associates. The ads purported to offer prospective clients “All the Help the Law Allows.” Joel was never licensed in South Carolina.

On October 18, 2003, Tuten sustained severe injuries in a motor vehicle accident in Aiken County while riding as a passenger in a car driven by Clifton Still. After she recovered, she saw Joel's ad in the Aiken phone book. Joel was the only attorney named and pictured in the ad. Tuten called the telephone number listed in the ad, and a non-lawyer investigator came to Tuten's home. The investigator interviewed her and provided her a contingency fee agreement, which she signed. The agreement provided, “Client ... hires Joel & Associates, P.A.... to represent us as legal counsel for all purposes in connection with claims for damage arising out of” her accident, and stated, “ Client will pay [Joel & Associates] an attorney fee of 33 1/3% of the total money recovered....” When asked at trial whom she “ultimately decide[d] to hire as a lawyer,” Tuten testified, “Joel. Mr. Joel.”

On December 15, 2003, Joel's firm sent Tuten two letters on Joel & Associates letterhead, one of which thanked her “for retaining Joel and Associates to pursue a recovery in your claim for personal injury.” That letter was signed by Heather Glover, an attorney then licensed in South Carolina whom Joel employed in his Columbia office.¹ There is no evidence Tuten was aware of Glover's involvement in her case until she received this letter.

In May 2006, Joel decided to close his Columbia office. Joel tried to get another attorney to take all his South Carolina cases, but no attorneys were interested.

Glover sent Joel an email dated May 14, 2006 stating, “I talked to two other attorneys ... about taking the cases and neither one of them is willing to take all the cases.” She wrote:

The only way I see this office closing on the 24th like you want is if I keep the cases and work on them on my own. It is not my first choice and I would not be permanently opening an office on my own. But what I am willing to do is take all the current cases and work them to conclusion, giving you 1/3 of the generated fees.

She wrote that unlike the attorneys who declined to take the cases, she could “handle them without having to get permission from the clients.” This approach gave them, she explained, “the better chance we won't loose [sic] them all together [sic].” (emphasis added). Finally, she offered that if Joel could not “get out of paying the phone bill” for the “1–800” number, “I would take any new cases generated on the same arrangement of giving you 1/3 of any fees generated.”

Glover sent Tuten a letter dated May 24, 2006 on Joel & Associates letterhead stating:

I am sending this letter to let you know that David Joel is retiring from his South Carolina office. Since I have been the attorney handling your case and will continue to handle your case to conclusion, this change should not affect you in any way. The Stat [sic] Bar does require that I send you this letter advising you of the situation and also advising you that Mr. Joel will receive 1/3 of all attorney's fees generated on your case even though he will no longer be open in South Carolina. The split in attorney's fees does not in any way affect the amount of money you will receive.

On October 17, 2006—the final day for filing a claim before the statute of limitations expired² —Glover filed a summons and complaint on Tuten's behalf against Still in the Aiken County Court of Common Pleas. There is no evidence Joel or Glover served the summons and complaint or took any other action to pursue Tuten's lawsuit. In November 2007, the circuit court dismissed Tuten's case for failure to prosecute.

In October 2009, Tuten sued Joel, his law firm, and Glover for malpractice. Glover, who by that time had left South Carolina, defaulted. Joel's law firm declared bankruptcy before trial and did not participate.

At trial, both Tuten and Joel made directed verdict motions. The trial court granted a partial directed verdict in favor of Tuten, and denied Joel's motion. The jury returned a verdict for Tuten in the amount of $275,000. Joel filed post-trial motions for judgment notwithstanding the verdict, new trial nisi remittitur, and new trial absolute, all of which the trial court denied.

II. Tuten's Partial Directed Verdict Motion

To succeed on her legal malpractice claim against Joel, Tuten was required to prove: (1) she and Joel had an attorney-client relationship; (2) Joel breached his duty to her; (3) Joel's breach of duty proximately caused her some damages; and (4) the amount of her damages. RFT Mgmt. Co. v. Tinsley & Adams LLP, 399 S.C. 322, 331, 732 S.E.2d 166, 170 (2012). The trial court granted a directed verdict for Tuten on the first three elements. We review the trial court's decision—separately as to each element—by applying the same standard as the trial court. 399 S.C. at 331–32, 732 S.E.2d at 171. We view the evidence and all reasonable inferences in the light most favorable to Joel. Id. As to each element, we “must determine whether a verdict for [Joel] would be reasonably possible under the facts as liberally construed in his favor.” Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 463, 629 S.E.2d 653, 663 (2006). “[I]f the evidence yields more than one reasonable inference or its inference is in doubt” as to any one of the first three elements, then the trial court should have submitted the issue to the jury and we must reverse. RFT, 399 S.C. at 332, 732 S.E.2d at 171 ; see also Erickson, 368 S.C. at 463, 629 S.E.2d at 663.

We hold the trial court correctly granted a partial directed verdict for Tuten. Specifically, we find the evidence yields only one reasonable inference as to each of the first three elements—(1) Joel and Tuten had an attorney-client relationship at the time her lawsuit against Still was filed and when it was dismissed; (2) Joel breached his duty to Tuten; and (3) Joel proximately caused at least some of her damages—and it was not reasonably possible the jury would return a verdict for Joel.

A. Attorney–Client Relationship

The first element Tuten was required to prove was the existence of an attorney-client relationship. RFT, 399 S.C. at 331, 732 S.E.2d at 170 ; Rydde v. Morris, 381 S.C. 643, 646, 675 S.E.2d 431, 433 (2009). We readily conclude the trial court correctly directed a verdict for Tuten on this element.

Joel conceded at oral argument that once Tuten signed the fee agreement with Joel's firm, she entered into an attorney-client relationship with Joel, and therefore he was Tuten's attorney at that time. Joel argues, however, he ended the relationship when he closed the Columbia office and allowed Glover to take Tuten's case. We disagree. An attorney may not end an attorney-client relationship, and thus relieve himself of the duties arising under it, by unilaterally deciding to allow another attorney to take responsibility for fulfilling those duties. Rather, at a minimum, an attorney must communicate to his client his desire to withdraw from their attorney-client relationship in such a manner that the client understands her attorney will no longer represent her.³ If the attorney does not take such action, the attorney-client relationship continues.

We find no evidence Joel took any action to end his attorney-client relationship with Tuten. To the contrary, the only communication Tuten received came from Glover. Glover's letter informed Tuten “this change should not affect you in any way.” Significantly, Glover's letter stated, “Mr. Joel will receive 1/3 of all attorney's fees generated on your case.” Glover's letter contains no explanation of how Joel could receive an attorney's fee for not being Tuten's lawyer.⁴

Joel argues Glover's letter informed Tuten that Joel was no longer representing her because it stated, “David Joel is retiring from his South Carolina office.” This statement did nothing more than inform Tuten that her attorney—Joel—would be working only out of his Atlanta office. Joel also argues Glover's sentence, “I have been the attorney handling your case and will continue to handle your case to conclusion,” indicated Joel was no longer her attorney. We disagree because the sentence relates only to Glover. At most, the sentence indicated Glover was also Tuten's attorney. Viewing Glover's entire letter in the light most favorable to Joel, we find the letter did not convey to Tuten that Joel would no longer be her lawyer.

Tuten called retired law professor John P. Freeman as an expert witness. Joel stipulated Professor Freeman was qualified as an expert in numerous specific subjects, including “professional duties in handling...