McClain v. Johnson

Court of Appeals of Georgia

McClain v. Johnson

288 S.E.2d 9, 160 Ga. App. 548, 1981 Ga. App. LEXIS 3091

CourtCourt of Appeals of Georgia

DecidedNovember 2, 1981

Docket62507

StatusPublished

Cited by7 cases

This text of 288 S.E.2d 9 (McClain v. Johnson) 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

McClain v. Johnson, 288 S.E.2d 9, 160 Ga. App. 548, 1981 Ga. App. LEXIS 3091 (Ga. Ct. App. 1981).

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Opinion

Sognier, Judge.

McClain sued Johnson alleging legal malpractice in drafting the property settlement agreement which was incorporated into her divorce decree of July 2, 1964. Appellant’s complaint was filed on February 2,1981 and alleges that a provision that she would receive alimony subsequent to the termination of child support was left out of the agreement by Johnson, her attorney in the divorce action. Appellant discovered the omission when her youngest child reached the age of 18 in 1979 and child support terminated. The trial court granted appellee’s motion to dismiss the action because it was barred by the statute of limitation.

Appellant contends the trial court erred in dismissing the complaint because the statute of limitation should begin to run at the time she discovered her attorney’s error. We do not agree.

The applicable statute of limitation for an alleged breach of duty imposed by the attorney-client contract of employment is four years. Code Ann. § 3-706; Riddle v. Driebe, 153 Ga. App. 276, 279 (265 SE2d 92) (1980). “It is not the special damage or injury resulting from the unskillfulness of an attorney at law in the representation of his client’s interests, but the breach of the duty imposed by the contract of employment, which gives a right of action for damages sustained. *549 The statute of limitations [sic] in such a case runs, therefore, from the date of the breach of duty, and not from the time when the extent of the resulting injury is ascertained.” Gould v. Palmer & Read, 96 Ga. 798 (22 SE 583) (1895); Riser v. Livsey, 138 Ga. App. 615 (227 SE2d 88) (1976). The alleged unskillful act was the drafting of the agreement which was signed by appellant in 1962 and made a final judgment of the court in 1964. Thus, the trial court correctly dismissed the action as being barred by the statute of limitation.

Decided November 2, 1981 Rehearing denied December 1, 1981 Wayne M. Purdom, for appellant. B. J. Smith, for appellee.

Judgment affirmed.

Shulman, P. J., and Birdsong, J., concur.

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Sognier, Judge.

McClain sued Johnson alleging legal malpractice in drafting the property settlement agreement which was incorporated into her divorce decree of July 2, 1964. Appellant’s complaint was filed on February 2,1981 and alleges that a provision that she would receive alimony subsequent to the termination of child support was left out of the agreement by Johnson, her attorney in the divorce action. Appellant discovered the omission when her youngest child reached the age of 18 in 1979 and child support terminated. The trial court granted appellee’s motion to dismiss the action because it was barred by the statute of limitation.

Appellant contends the trial court erred in dismissing the complaint because the statute of limitation should begin to run at the time she discovered her attorney’s error. We do not agree.

The applicable statute of limitation for an alleged breach of duty imposed by the attorney-client contract of employment is four years. Code Ann. § 3-706; Riddle v. Driebe, 153 Ga. App. 276, 279 (265 SE2d 92) (1980). “It is not the special damage or injury resulting from the unskillfulness of an attorney at law in the representation of his client’s interests, but the breach of the duty imposed by the contract of employment, which gives a right of action for damages sustained. *549 The statute of limitations [sic] in such a case runs, therefore, from the date of the breach of duty, and not from the time when the extent of the resulting injury is ascertained.” Gould v. Palmer & Read, 96 Ga. 798 (22 SE 583) (1895); Riser v. Livsey, 138 Ga. App. 615 (227 SE2d 88) (1976). The alleged unskillful act was the drafting of the agreement which was signed by appellant in 1962 and made a final judgment of the court in 1964. Thus, the trial court correctly dismissed the action as being barred by the statute of limitation.

Decided November 2, 1981 Rehearing denied December 1, 1981 Wayne M. Purdom, for appellant. B. J. Smith, for appellee.

Judgment affirmed.

Shulman, P. J., and Birdsong, J., concur.

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288 S.E.2d 9, 160 Ga. App. 548, 1981 Ga. App. LEXIS 3091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclain-v-johnson-gactapp-1981.

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