Kellos v. Sawilowsky

322 S.E.2d 897, 172 Ga. App. 263, 1984 Ga. App. LEXIS 2477

• Court: Court of Appeals of Georgia
• Decided: July 10, 1984
• Docket: 68324
• Status: Published

Opinions

Birdsong, Judge.

This is a legal malpractice action wherein the trial court granted summary judgment to the defendant attorney without stating any reason, and the plaintiffs appeal. See Kellos v. Parker-Sharpe, 245 Ga. 130 (263 SE2d 138), which clearly describes the predicament giving rise to this lawsuit by Kellos against his attorney.

1. The plaintiff Kellos retained the appellee to construct an arrangement whereby Kellos would retain silent one-half interest in a newly-formed business corporation. The attorney proposed to do this by having Kellos, through another, lend to the four principals of the corporation, $100,000 of the capital amount secured by one-half of the corporate stock, which by separate written agreements (elections) would be retained by Kellos in lieu of repayment of the loan. The flaw in this arrangement, well described in Kellos v. Sharpe, supra, is the attempt to frustrate the right of redemption of collateral in secured transactions before default in contravention of OCGA § 11-9-506. The separate written “elections” to repay the loan in the stock (which was the collateral) instead of in money, were, according to Sawilowsky, supposed to be executed contemporaneously with the loan document. He wrote the parties to “please be sure [the documents] are properly dated at the proper dates.” However, the loan documents were dated two weeks before the election letters were dated. See Kellos, supra, p. 133, fn. 2.

The presumption that services rendered by an attorney are performed in an ordinarily skillful manner, “may be overcome only by competent, expert testimony showing that the services were not performed in an ordinarily skillful manner.” Hughes v. Malone, 146 Ga. (247 SE2d 107); see Rose v. Rollins, 167 Ga. App. 469 (306 SE2d 724).

“In malpractice actions against lawyers, as in the case against other professionals, it is essential to the maintenance of a cause of action that competent evidence be presented as to the reasonableness of the lawyer’s conduct. ‘Attorneys are very properly held to the same rule of liability for want of professional skill and diligence in practice, and for erroneous or negligent advice to those who employ them, as are physicians, surgeons, and other persons who hold themselves out to the world as possessing skill and qualification in their respective trades or professions.’ [Cits.] Hence, except in clear and palpable cases (such as the expiration of a statute of limitation), expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. [Cits.] The reason for this requirement is simply that a jury cannot rationally apply negligence principles to professional conduct absent evidence of what the competent lawyer would have done under similar circumstances, and the jury may not be permitted to speculate about what the ‘professional custom’ may be. Expert evidence as to the ‘professional custom’ is required in malpractice actions against other professionals. [Cits.] Consistence demands a similar standard for attorneys. Berman v. Rubin, [138 Ga. App. 849, 854 (227 SE2d 802)].” Hughes, supra, pp. 345-346. See also Self v. Executive &c. Ga., 245 Ga. 548 (266 SE2d 168); Sikorski v. Bell, 167 Ga. App. 803, 805 (307 SE2d 701); Killingsworth v. Poon, 167 Ga. App. 653, 655 (307 SE2d 123).

The appellant’s expert evidence did not create an issue of fact according to the above requirements. The expert attorney avowed that Sawilowsky “did not exercise the degree of skill, prudence and diligence as lawyers of ordinary skill and capacity who undertake to represent parties in similar transactions possess and exercise in the State of Georgia ...” rather than in the profession generally.

This affidavit asserts that Sawilowsky did not do what other ordinarily skilled Georgia attorneys in like circumstances would have done, but in so saying does not “establish . . . ‘the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice.’ ” Sikorski, supra, p. 805; Hughes, supra, p. 345; see also Storrs v. Wills, 170 Ga. App. 179, 181 (316 SE2d 758). In the absence of an issue of contestable fact, there is no error in the grant of summary judgment. Holland v. Sanfax Corp., 106 Ga. App. 1 (1) (126 SE2d 442).

2. Any alleged failure of the appellee to properly object to the admissibility of the plaintiff’s expert affidavit is irrelevant, inasmuch as the affidavit fails not because of inadmissibility but merely because it is insufficient evidence to raise an issue of fact and prevent summary judgment. Admissibility and sufficiency of evidence, like admissibility and weight of evidence, are two different things. See, similarly, Storrs v. Wills, supra.

Decided July 10, 1984 Rehearing denied September 27, 1984 Michael T. Turner, Robert W. Beynart, E. Kendrick Smith, for appellants. A. Montague Miller, Thomas W. Tucker, for appellees.

Judgment affirmed.

McMurray, C. J., Quillian, P. J., Banke, P. J., Sognier and Benham, JJ., concur. Deen, P. J., Carley and Pope, JJ., dissent.