Duncan v. Klein

720 S.E.2d 341, 313 Ga. App. 15, 2011 Fulton County D. Rep. 3905, 2011 Ga. App. LEXIS 1068
CourtCourt of Appeals of Georgia
DecidedNovember 29, 2011
DocketA11A1061, A11A1062
StatusPublished
Cited by6 cases

This text of 720 S.E.2d 341 (Duncan v. Klein) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duncan v. Klein, 720 S.E.2d 341, 313 Ga. App. 15, 2011 Fulton County D. Rep. 3905, 2011 Ga. App. LEXIS 1068 (Ga. Ct. App. 2011).

Opinion

Blackwell, Judge.

These appeals arise from a legal malpractice case in which Jeffrey W. Duncan claims that lawyer Daniel M. Klein gave him erroneous advice about whether he could sue his employer for violations of federal employment discrimination laws. Klein allegedly told Duncan that such a lawsuit would not succeed, and believing as a result that he had no recourse against his employer, Duncan later resigned his employment. Duncan then enrolled in law school, where he learned that Klein might have given him bad advice, and he filed a lawsuit against his former employer, which he later settled. Notwithstanding that he eventually sued his former employer, and notwithstanding that he evidently got something out of that lawsuit, Duncan recovered less from his former employer, he says, than he would have recovered if Klein had advised him correctly and he had sued his employer more quickly. Moreover, Duncan contends that his decision to resign his employment was based on the advice he received from Klein, and as a result of his resignation, he had to enroll in law school, which caused him to incur substantial costs and to suffer an extended separation from his family. In the case below, Duncan sought to recover damages from Klein and his law firm, Greene, Buckley, Jones & McQueen, for the value of the claims that Duncan was unable to successfully assert against his former employer and for damages arising out of his enrollment in law school, as well as punitive damages and attorney fees.

Klein and the firm moved for summary judgment, and the court below granted that motion in part. The court determined that Duncan could not recover damages arising out of his enrollment in law school, that he could not recover damages for the value of a constructive discharge claim against his former employer, and that he could not recover punitive damages or attorney fees, and the court awarded summary judgment to Klein and the firm to the extent that [16]*16Duncan sought such damages. The court ruled, however, that Duncan might properly recover damages for the value of any claims against his former employer for back pay that were viable when he consulted with Klein but were barred by the time he eventually sued his former employer. Duncan appeals in Case No. A11A1061 from the award of partial summary judgment, and Klein and the law firm appeal in Case No. A11A1062 from the denial in part of their motion for summary judgment. For the reasons set out below, we see no error and affirm in both appeals.

The standard for summary judgment is settled and familiar. “[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law.” Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted). See also OCGA § 9-11-56 (c).

When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial[,] the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element.

Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011) (citation omitted). On appeal from the grant or denial of a motion for summary judgment, we view the evidence of record in the light most favorable to the party opposing the motion, and we review the decision to grant or deny the motion de novo. Cowart, 287 Ga. at 624 (1) (a).

So viewed, the evidence in this case shows that Duncan, an American citizen, went to work for NGK-Locke, Inc., a subsidiary of a Japanese company, in 1991. By 2001, Duncan had become convinced that NGK treated its Japanese employees better than its American employees. Other American employees of NGK complained about discrimination, and in February 2001, NGK engaged a lawyer to investigate these complaints. In the course of his investigation, the lawyer spoke with Duncan and informed him that a treaty between the United States and Japan permits NGK to discriminate in favor of its Japanese employees, notwithstanding the federal employment discrimination laws.

Sometime in February or March 2001, Duncan asked Klein for advice about NGK and the extent to which he might successfully assert a discrimination claim against it. Duncan told Klein that NGK [17]*17“claimed a legal right to discriminate,’’ and he asked if NGK was correct. Duncan also asked Klein whether he had a viable claim against NGK for discrimination based on national origin, and if so, how he should proceed to assert such a claim. Klein initially advised Duncan that Title VII of the Civil Rights Act of 1964 applied to NGK and that Duncan could file a claim against NGK under the Act. Duncan later discovered, however, a decision of the United States Court of Appeals for the Fifth Circuit concerning the treaty between the United States and Japan, and he asked Klein to review this decision and reconsider his advice. Klein did so, and according to Duncan, Klein advised him in April 2001 that NGK indeed was permitted to discriminate in favor of its Japanese employees and that any claim against NGK would be “completely barred.”

Duncan became more and more dissatisfied with the circumstances of his employment in the following months. NGK was “moving business from [him],” he says, and Duncan concluded that, sooner or later, he would lose his job. Accordingly, Duncan began to consider other options, and he applied to several law schools. He was admitted in July 2001 to the New England School of Law, and he resigned his employment with NGK as of August 2001 and set off for law school. Duncan since has explained that he left his job to attend law school only because he had no recourse, he thought, against NGK for its discriminatory practices. Duncan testified at his deposition that, “if Mr. Klein had given [him] correct legal advice, [he] would not have resigned [his] position .... [He instead] would have filed [a discrimination] claim, and [his employment] would have been protected by federal law.”

While attending law school, Duncan apparently learned that he might have a viable claim against NGK after all. In February 2002, Duncan filed a discrimination claim against NGK with the Equal Employment Opportunity Commission (EEOC), asserting, among other things, that NGK had denied him promotions based on his national origin and race and that he was constructively discharged by NGK. In September 2002, the EEOC issued a right-to-sue letter, and about three months later, Duncan filed a lawsuit against NGK in a federal district court in Maryland. In that lawsuit, Duncan claimed that NGK had unlawfully discriminated against him on the basis of race and national origin, and he sought damages for, among other things, its failure to promote him, unequal pay, a hostile work environment, retaliation, and constructive discharge. Duncan settled with NGK for a sum of money and dismissed his lawsuit in June 2004.

Duncan sued Klein and the law firm in 2005, asserting claims for [18]*18legal malpractice, breach of contract, and breach of fiduciary duty.1 Klein and the firm moved for summary judgment, which the court below granted in part.

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Bluebook (online)
720 S.E.2d 341, 313 Ga. App. 15, 2011 Fulton County D. Rep. 3905, 2011 Ga. App. LEXIS 1068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-klein-gactapp-2011.