TITSHAW v. GEER

907 S.E.2d 835, 320 Ga. 128

• Court: Supreme Court of Georgia
• Decided: October 22, 2024
• Docket: S23G1124
• Status: Published

Opinion

320 Ga. 128 FINAL COPY

S23G1124. TITSHAW et al. v. GEER et al.

COLVIN, Justice.

After a bankruptcy proceeding went awry, the plaintiffs in this

case filed suit against lawyers and law firms who had advised them

to file for bankruptcy. The plaintiffs asserted tort claims for legal

malpractice and claims for breach of written contracts for legal

services, alleging, among other things, that the lawyers committed

legal malpractice in executing their duties under the contracts. The

defendants moved to dismiss both sets of claims as barred by OCGA

§ 9-3-25’s four-year statute of limitation. And although the trial

court only granted those motions as to the tort-based legal-

malpractice claims, it later granted a summary-judgment motion

filed by a subset of the defendants on the ground that the breach-of-

contract-for-legal-services claim against those defendants was also

barred by OCGA § 9-3-25. On appeal, the Court of Appeals likewise

concluded that the tort-based legal-malpractice claims were barred by OCGA § 9-3-25’s statute of limitation. See Titshaw v. Geer, 368

Ga. App. 266, 268-269 (1) (888 SE2d 301) (2023). And the Court of

Appeals further concluded that the breach-of-contract-for-legal-

services claims were due to be dismissed as “duplicative” because

they were based on the same conduct underlying the tort-based

legal-malpractice claims. See id. at 269-270 (2), (4).

We granted certiorari to address which statute of limitation

applies to a claim for breach of a contract for legal services — OCGA

§ 9-3-24’s six-year statute of limitation for “actions upon simple

contracts in writing” or OCGA § 9-3-25’s four-year statute of

limitation for “actions . . . for the breach of any contract not under

the hand of the party sought to be charged, or upon any implied

promise or undertaking.” And we further granted certiorari to

determine whether the Court of Appeals erred in concluding that a

claim for breach of a contract for legal services should be dismissed

if it is based on the same conduct underlying a tort-based legal-

malpractice claim that the court has concluded is barred by the

statute of limitation.

2 As explained below, we conclude that a breach-of-contract-for-

legal-services claim can be governed by either OCGA § 9-3-24’s six-

year statute of limitation or OCGA § 9-3-25’s four-year statute of

limitation, and that which statute of limitation applies must be

determined under the framework set out in Newell Recycling of

Atlanta v. Jordan Jones and Goulding, Inc., 288 Ga. 236 (703 SE2d

323) (2010). We further hold that, in Division 4 of its opinion, the

Court of Appeals erred in concluding that a claim for breach-of-

contract-for-legal-services was due to be dismissed as “duplicative”

of a legal-malpractice claim that it had concluded was barred by

OCGA § 9-3-25’s statute of limitation. Titshaw, 368 Ga. App. at 270

(4). As explained below, the Court of Appeals erred in failing to apply

the well-established motion-to-dismiss standard to determine

whether, under Newell Recycling’s framework, it was possible for

the plaintiffs to prove that OCGA § 9-3-24’s six-year statute of

limitation applied to the breach-of-contract-for-legal-services claim.

Accordingly, we vacate the Court of Appeals’ judgment, and we

3 remand for further proceedings consistent with this opinion.1

1. David Titshaw is the majority owner and managing

member of Taylor Investment Partners II, LLC, TIP II — Ansley,

LLC, and TIP II — Suburban, LLC (the “TIP entities”), which

operate restaurants in Atlanta and Decatur under franchise

agreements. After the TIP entities filed a Chapter 11 bankruptcy

petition, giving the franchisor grounds for terminating the franchise

agreements, Titshaw and the TIP entities (collectively, “Plaintiffs”)

filed suit against defendants Will B. Geer and the Law Office of Will

B. Geer, LLC (collectively, “Geer”), and Cohen Pollock Merlin

Turner, P.C. (“CPMT”), who had advised Plaintiffs to file the

Chapter 11 bankruptcy petition. Plaintiffs asserted tort claims for

legal malpractice and claims for breach of the separate contracts for

legal services that Plaintiffs had entered into with Geer and CPMT.

The trial court granted Geer’s and CPMT’s motions to dismiss

the legal-malpractice claims as barred by OCGA § 9-3-25’s four-year

statute of limitation but summarily denied their motions to dismiss

1 We thank Georgia Watch, Inc., for its amicus brief in this case.

4 the breach-of-contract claims on the same grounds.2 On summary

judgment, the trial court concluded that the breach-of-contract claim

against Geer was likewise governed by, and barred under, OCGA §

9-3-25’s four-year statute of limitation.

On appeal, the Court of Appeals affirmed in part and reversed

in part. As relevant here, in Division 1 of its opinion, the Court of

Appeals affirmed the trial court’s dismissal of Plaintiffs’ tort claims

for legal malpractice against both Geer and CPMT as barred by

OCGA § 9-3-25’s four-year statute of limitation.3 See Titshaw, 368

2 It does not appear that there was any dispute in the trial court as to

which statute of limitation applied to the tort-based legal-malpractice claims. Relying on case law that cited OCGA § 9-3-25, the defendants argued in their motions to dismiss that those claims were governed by a four-year limitation period, and Plaintiffs did not argue otherwise in their briefs opposing the motions to dismiss. 3 The Court of Appeals followed the trial court’s lead in applying OCGA

§ 9-3-25’s four-year statute of limitation to the tort-based legal-malpractice claims. In doing so, the Court of Appeals did not address the body of Court of Appeals case law stating that legal-malpractice claims sounding in tort are instead governed by the shorter limitation periods provided for in OCGA § 9- 3-33. See, e.g., Coleman v. Hicks, 209 Ga. App. 467, 468 (1) (433 SE2d 621) (1993) (noting that a legal-malpractice claim can sound in either contract or tort and that a tort-based legal-malpractice claim is governed by OCGA § 9-3- 33’s “one-year and/or two-year limitation [period]”). See also OCGA § 9-3-33 (providing in relevant part that “actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of

5 Ga. App. at 268-269 (1). As to Plaintiffs’ breach-of-contract-for-legal-

services claims, the Court of Appeals affirmed the trial court’s grant

of summary judgment to Geer in Division 2 of its opinion and

reversed the trial court’s denial of CPMT’s motion to dismiss in

Division 4 of its opinion. See id. at 269-270 (2), (4). The court

employed the same reasoning in both divisions. Specifically, in

Division 2 of its opinion, the Court of Appeals concluded that the

trial court properly granted summary judgment to Geer on

Plaintiffs’ breach-of-contract claim because the claim was “based

upon the same conduct that form[ed] the basis of the legal

malpractice claim” (namely, the defendants’ conduct in negligently

advising Plaintiffs to file for bankruptcy), and the breach-of-contract

claim was therefore “duplicative” of the tort-based legal-malpractice

claim. Id. at 269 (2). And in Division 4 of its opinion, the Court of

action accrues”). As noted below, whether the Court of Appeals correctly determined that the tort-based legal-malpractice claims were barred by OCGA § 9-3-25’s four-year limitation period is outside the scope of the questions posed by this Court in our order granting certiorari. Accordingly, we express no opinion on whether the Court of Appeals applied the correct statute of limitation to Plaintiffs’ legal-malpractice claims sounding in tort. 6 Appeals concluded that the trial court should have dismissed

Plaintiffs’ breach-of-contract claim against CPMT “[f]or the reason[ ]

stated above in Division 2 of this opinion.” Id. at 270 (4).

2. Before turning to the merits of this appeal, we briefly

address the scope of our review in this case. This case comes to us

by way of two appeals from the trial court that resulted in two

judgments of the Court of Appeals. See Titshaw, 368 Ga. App. at 270

(4). In the first appeal (Court of Appeals Case No. A23A0410),

Plaintiffs challenged the trial court’s order dismissing the tort-based

legal-malpractice claims against Geer and CPMT, as well as the trial

court’s order granting Geer’s motion for summary judgment on the

claims against Geer for breach of contract and attorney fees. The

Court of Appeals’ rulings as to the first appeal appear in Divisions 1

through 3 of its opinion. See id. at 268-269 (1)-(3). In the second

appeal (Court of Appeals Case No. A23A0439), CPMT challenged the

trial court’s order denying its motion to dismiss Plaintiffs’ claim

against CPMT for breach of contract for legal services. The Court of

Appeals’ ruling as to the second appeal appears in Division 4 of its

7 opinion. See id. at 270 (4).

Our order granting certiorari included both Court of Appeals

case numbers and thus both judgments of the Court of Appeals. But

our certiorari questions concerned only the Court of Appeals’ rulings

on the breach-of-contract claims, that is, the rulings in Divisions 2

and 4 of the Court of Appeals’ opinion. See Titshaw, 368 Ga. App. at

269-270 (2), (4). And while the case was pending before us, Plaintiffs

and Geer settled the case between them, rendering the first appeal

(Court of Appeals Case No. A23A0410) moot as to the dispute

between Plaintiffs and Geer over the breach-of-contract claim

addressed in Division 2 of the Court of Appeals’ opinion. Cf. WMW,

Inc. v. American Honda Motor Co., 291 Ga. 683, 685 (2) n.1 (733

SE2d 269) (2012) (noting that a settlement generally moots an

appeal).

As a result, we confine our merits review to Division 4 of the

Court of Appeals’ opinion, which addressed Appellants’ breach-of-

contract-for-legal-services claim against CPMT. See Titshaw, 368

Ga. App. at 270 (4). As explained below, we vacate that division. And

8 because the Court of Appeals based its ruling in Division 4 on its

reasoning in Division 2, a conflict in precedent would arise if we

vacated the former division but not the latter. Accordingly, we

exercise our discretion to vacate Division 2 of the Court of Appeals’

opinion as well. See WMW, 291 Ga. at 685 (2) n.1 (relying on U. S.

Bancorp Mtg. Co. v. Bonner Mall Partnership, 513 U. S. 18, 25 (III)

(115 SCt 386, 130 LE2d 233) (1994), to explain how settlement on

appeal generally affects a judgment under review). See also U. S.

Bancorp Mtg. Co., 513 U. S. at 29 (III) (noting that “equitable”

principles underlie an appellate court’s decision whether to vacate a

judgment under review, and that, although “mootness by reason of

settlement [generally] does not justify vacatur of a judgment under

review[,] . . . exceptional circumstances may conceivably counsel in

favor of such a course”).

3. Turning to the merits, in the instant case, Plaintiffs

raised tort claims for legal malpractice and breach-of-contract

claims based on alleged breaches of written contracts for legal

services. See Villanueva v. First American Title Ins. Co., 292 Ga.

9 630, 631-632 (740 SE2d 108) (2013) (noting that, although “[a] claim

of legal malpractice may . . . sound in tort,” a legal malpractice

action “based upon the breach of a duty imposed by the contract of

employment between the attorney and the client” generally “sounds

in contract”). As to the latter claims, and as relevant here, Plaintiffs

alleged that CPMT had breached the implied promise to perform

professionally under a written contract for legal services and had

also breached specific provisions of that written contract. We

granted certiorari to determine which statute of limitation governs

claims for breaching contracts for legal services, like those asserted

by Plaintiffs in this case. As explained below, we conclude that the

framework set out in Newell Recycling for determining which

statute of limitation applies to a claim for breaching a contract for

professional services applies with equal force to breach-of-contract-

for-legal-services claims. And as further explained below, we

conclude that applying Newell Recycling in this manner does not

contradict statements we have made in other cases about the

limitation period applicable to such claims.

10 (a) As a general matter, breach-of-contract actions in Georgia

are governed by OCGA § 9-3-24’s six-year statute of limitation if

they are premised on a written contract with the defendant and by

OCGA § 9-3-25’s four-year statute of limitation if they are premised

on an oral or implied contract with the defendant. See OCGA § 9-3-

24 (“All actions upon simple contracts in writing shall be brought

within six years after the same become due and payable.”); OCGA

§ 9-3-25 (“All actions upon open account, or for the breach of any

contract not under the hand of the party sought to be charged, or

upon any implied promise or undertaking shall be brought within

four years after the right of action accrues.”).

In Newell Recycling, we granted certiorari to determine

whether “a professional malpractice claim premised on a written

contract is governed by the four-year statute of limitation in OCGA

§ 9-3-25” or “the six-year statute of limitation in OCGA § 9-3-24.”

Newell Recycling, 288 Ga. at 237. We concluded that the latter

statute of limitation applied, reasoning that OCGA § 9-3-25’s “plain

terms” showed that its four-year statute of limitation “only applies

11 where no sufficiently written contract exists and a cause of action

can therefore be based solely on the breach of an express oral or

implied promise,” and that “the Legislature and this Court have

made clear that” OCGA § 9-3-24’s six-year statute of limitation

applies where a breach of contract action is pursued based on “a

complete written contract.” Id. at 237-238.

“In determining which statute of limitation applies,” we

explained, “the threshold inquiry is to determine whether a written

agreement actually exists between the parties such that any implied

duties sued upon would have grown directly out of the existence of

the written contract itself.” Newell Recycling, 288 Ga. at 238. We

clarified that, where an “enforceable, written contract” between the

parties exists and the breach-of-contract claim stems from a duty

arising, “not remotely or ultimately, but immediately . . . from [the]

instrument[ ] of writing,” OCGA § 9-3-24’s six-year statute of

limitation applies. Id. at 237-238 (citations and punctuation

omitted). And this is so, we said, “regardless of whether the alleged

breach stems from the express terms of the agreement or duties that

12 are implied in the agreement as a matter of law,” such as “an implied

promise to perform professionally pursuant to a written agreement

for professional services.” Id. We further clarified that, “[w]here the

agreement is incomplete, such that the writing does not form a

contract or the promise allegedly broken stems from a purely oral

agreement, the four-year statute of limitation of OCGA § 9-3-25

applies.” Id. at 238.

Although Newell Recycling concerned contracts for professional

engineering services, see Newell Recycling, 288 Ga. at 236, its

reasoning applies with equal force to contracts for other professional

services, including contracts for legal services. As applied to a claim

for breaching a contract for legal services, Newell Recycling provides

that the claim is governed by OCGA § 9-3-24’s six-year statute of

limitation if it is premised on an “enforceable, written contract”

between the parties and the alleged breach concerns a “dut[y] . . .

grown directly out of” the written instrument, meaning that the

complained-of conduct fell within the scope of the legal services that

the defendant agreed to perform under the “written contract itself.”

13 Id. at 237-238 (citation and punctuation omitted).4 And “because an

implied promise to perform professionally pursuant to a written

agreement for [legal] services would be written into the contract for

[legal] services by the law,” a claim alleging a “breach of this implied

obligation . . . [is] governed by the six-year statute of limitation of

OCGA § 9-3-24” so long as the alleged breach “directly” relates to the

legal services that the defendant agreed to undertake pursuant to

the written contract. Id. (punctuation omitted).5 By contrast, when

no written contract for legal services exists, a written contract for

4 Cf. Jenkins v. Prime Ins. Co., No. 1:20-CV-01263-JPB, 2021 U.S. Dist.

LEXIS 39826, *10 (II) (A) (1), WL 807612, at *4 (II) (A) (1) (N.D. Ga. Mar. 3, 2021) (holding that, under Newell Recycling, the six-year limitation period could not apply because “[w]hatever legal advice [the attorney was] alleged to have provided [could not] be considered an agreed upon service rendered pursuant to the Policy,” which was “not an agreement for professional services that set[ ] forth the specific responsibilities [the attorney] . . . agreed to undertake,” and because the “advice was [at best] incidental to the administration of the Policy”). 5 See Julmist v. Prime Ins. Co., 92 F4th 1008, 1019 (III) (B) (1) (11th Cir.

2024) (explaining that, under Newell Recycling, “[t]o determine whether the six-year period applies [to a claim that the defendant breached implied duties in a written contract], courts must look to whether any implied duties that were allegedly breached would have grown directly out of the existence of the written contract itself”; and holding that OCGA § 9-3-25 applied to a claim where the alleged breach “did not grow out of the written contract” at issue, which “was an insurance policy, not a contract for professional services,” and the duty allegedly breached was “[a]t most . . . incidental to the policy” (citations and punctuation omitted; emphasis in original)). 14 legal services is unenforceable, or the alleged breach is only

“remotely” related to the legal services that were the subject of a

written agreement, any breach-of-contract claim is necessarily

premised on an oral contract, and OCGA § 9-3-25’s four-year statute

of limitation applies to that claim. Id.6

(b) Our order granting certiorari in this case highlighted a

possible tension in our precedent. Specifically, we cited Newell

Recycling, which, as discussed above, indicated that a claim for a

breach of a contract for legal services could be governed by either

OCGA § 9-3-24 or OCGA § 9-3-25, depending on the circumstances.

And we cited as a point of comparison our decision in Armstrong v.

Cuffie, 311 Ga. 791 (860 SE2d 504) (2021), where we stated in a

footnote, “ ‘It has long been the law in this state that a cause of action

for legal malpractice, alleging negligence or unskillfulness . . . , is

6 CPMT suggests that, although “[a]dherence to stare decisis is important,” this “Court may want to consider” overruling Newell Recycling and “adopting the approach in many other states — applying the tort statute, OCGA § 9-3-33, to all legal malpractice claims” — because applying a single limitation period to all claims involving legal malpractice would make sense as a matter of public policy. But CPMT has not argued that Newell Recycling was wrongly decided. Accordingly, we decline CPMT’s invitation to reconsider our precedent. 15 subject to the four-year statute of limitation in OCGA § 9-3-25.’ ”

Armstrong, 311 Ga. at 793 (1) n.4 (citation omitted). Taken in

isolation, that language might suggest that all breach-of-contract-

for-legal-services claims are governed by OCGA § 9-3-25, contrary to

our application of Newell Recycling discussed above.

When read in context, however, there is no necessary tension

between Newell Recycling and Armstrong as to which statute of

limitation governs claims for breach of a contract for legal services.

Armstrong addressed only “whether the Court of Appeals properly

identified the accrual date” of a breach-of-contract-for-legal-services

claim alleging legal malpractice in connection with the contract, not

which statute of limitation applied to the claim. Armstrong, 311 Ga.

at 791, 793-794 (1) & n.4 (noting that the Court of Appeals had

determined that the “malpractice suit was a contract action”). And

although the plaintiff in Armstrong had “signed a written contract

for representation” with the defendant attorney “to handle [the

plaintiff’s] claims against the other drivers” involved in a motor-

vehicle accident, it does not appear that the duty the plaintiff alleged

16 the defendant attorney had breached — the duty to “seek [uninsured

motorist] coverage” by timely filing a claim against the plaintiff’s

insurance company — arose directly from that written contract.7 Id.

at 792-793 (1) (citation and punctuation omitted; emphasis

supplied). Because it was undisputed in Armstrong that OCGA § 9-

3-25’s four-year limitation period for oral contracts applied to the

claim, and the opinion does not suggest that the breach-of-contract

claim was premised on the written agreement, Armstrong is most

sensibly read as addressing a claim for breach of an oral contract.

And in that context, Armstrong’s dicta stating that OCGA § 9-3-25’s

four-year statute of limitation governed the breach-of-contract-for-

legal-services claim is consistent with Newell Recycling and with the

line of Court of Appeals’ precedent on which Armstrong relied, which

7 In Armstrong, we noted the parties’ agreement that the defendant attorney, having been engaged to represent the plaintiff “in connection with the motor vehicle accident,” had a general legal duty “to take actions to protect [the plaintiff’s] interests, including preserving a claim for insurance coverage,” and a specific duty to timely present an uninsured-motorist claim to the plaintiff’s insurance company. Armstrong, 311 Ga. at 795 (2). But the opinion does not indicate that the parties believed the written representation agreement was the source of those duties. 17 addressed breach-of-contract claims premised on oral agreements.8

Accordingly, we do not read Armstrong as suggesting that all

breach-of-contract-for-legal-services claims are governed by OCGA

§ 9-3-25, and we disapprove of such a broad interpretation of the

case.

We note that, in Coe v. Proskauer Rose, LLP, 314 Ga. 519 (878

SE2d 235) (2022), we parenthetically quoted the language from

Armstrong discussed above to support a statement that “the statute

of limitation for legal malpractice claims is set out in OCGA § 9-3-

8 See Armstrong, 311 Ga. at 793 (1) n.4 (“ ‘It has long been the law in this

state that a cause of action for legal malpractice, alleging negligence or unskillfulness . . . , is subject to the four-year statute of limitation in OCGA § 9-3-25.’ ” (quoting Royal v. Harrington, 194 Ga. App. 457, 458 (390 SE2d 668) (1990))); Royal, 194 Ga. App. at 458 (“ ‘It has long been the law in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25.’ ” (emphasis omitted) (quoting Ballard v. Frey, 179 Ga. App. 455, 459 (3) (346 SE2d 893) (1984))); Ballard, 179 Ga. App. at 459 (3) (“ ‘It has long been the law in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25 . . . .’ ” (emphasis omitted) (quoting Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 412-413 (1) (306 SE2d 340) (1983))); Hamilton, 167 Ga. App. at 412-413 (1) (“It has long been the law in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four- year statute of limitation in OCGA § 9-3-25 (formerly Code Ann. § 3-706).”). 18 25.” Coe, 314 Ga. at 524-525 (2) (citing Armstrong, 311 Ga. at 793 (1)

n.4).9 But as with Armstrong itself, we do not read Coe as

contradicting our conclusion that, under Newell Recycling, a claim

for breach of contract for legal services can be governed by either

OCGA § 9-3-24 or OCGA § 9-3-25, depending on the circumstances.

Coe referenced the statute of limitation applicable to the plaintiffs’

legal-malpractice claim only by way of background to explain the

Court of Appeals’ belief that a four-year limitation period applied to

both the legal-malpractice claim and the claims for fraud and

negligent misrepresentation, before we turned to the issue at hand

— whether the Court of Appeals had erred in failing to separately

analyze the accrual date for the fraud and negligent

misrepresentation claims. See id. at 524-525 (2). And although a

9 In the instant case, the Court of Appeals relied on Coe’s parenthetical

quotation of Armstrong in determining which statute of limitation applied to Plaintiffs’ tort-based legal-malpractice claims. See Titshaw, 368 Ga. App. at 268 (1). As noted above, however, Division 1 of the Court of Appeals’ opinion falls outside the scope of our certiorari questions, and we take no position on whether the court correctly determined that Plaintiffs’ tort-based legal- malpractice claims were governed by OCGA § 9-3-25’s four-year statute of limitation. 19 written contract for legal services existed in Coe, whether OCGA § 9-

3-25’s four-year statute of limitation applied to the legal-malpractice

claim was not an issue that the parties disputed below or that fell

within the scope of the questions we posed in granting certiorari. See

id. at 521, 524 (1) (explaining that the plaintiffs had argued in the

Court of Appeals about when the claims accrued and whether the

statutes of limitation were tolled, not about which statute of

limitation applied to the claims, and that we had granted certiorari

to consider whether the claims of fraud and negligent representation

were barred by the statute of limitation). Indeed, we expressly

stated in Coe that, because our order granting certiorari focused on

the plaintiffs’ claims for fraud and negligent misrepresentation, we

were not deciding statute-of-limitation issues regarding the

plaintiffs’ legal-malpractice claim. See id. at 524-525 (1) & (2) n.14

(clarifying that the Court of Appeals’ application of the statute of

limitation to the plaintiffs’ legal-malpractice claim “d[id] not fall

within the scope of the questions that we posed on granting the Coes’

petition for certiorari”). Accordingly, Coe’s reliance on Armstrong for

20 the proposition that “the statute of limitation for legal malpractice

claims is set out in OCGA § 9-3-25” is dicta. Id. at 524-525 (2). We

do not read Coe as broadly suggesting that all claims for breach of

contract for legal services are governed by OCGA § 9-3-25, and we

disapprove such an interpretation of the case.

(c) In Division 4 of its opinion, the Court of Appeals

concluded that Plaintiffs’ claim alleging that CPMT breached a

contract for legal services was due to be dismissed because it was

based on the same underlying conduct as, and therefore

“duplicative” of, Plaintiffs’ tort-based legal-malpractice claim

against CPMT. See Titshaw, 368 Ga. App. at 269-270 (2), (4). And,

as noted above, the Court of Appeals had previously concluded in

Division 1 of its opinion that Plaintiffs’ tort-based legal-malpractice

claim against CPMT was barred by OCGA § 9-3-25’s four-year

statute of limitation. See id. at 268-269 (1).

Why the Court of Appeals believed the allegedly “duplicative”

nature of the breach-of-contract claim warranted dismissal is

unclear. When read in context, the court’s opinion is susceptible of

21 two interpretations. But as explained below, regardless of which

interpretation is correct, the Court of Appeals’ reasoning was

flawed.

First, Division 4 of the Court of Appeals’ opinion reasonably

may be interpreted as concluding that Georgia law prohibits

plaintiffs from simultaneously pursuing different causes of action

based on the same underlying conduct. This is because, in

concluding that the breach-of-contract claim was duplicative of the

tort-based legal-malpractice claim, the Court of Appeals cited

Smiley v. Blasingame, Burch, Garrard & Ashley, P.C., 352 Ga. App.

769, 776 (2) (835 SE2d 803) (2019), and Oehlerich v. Llewellyn, 285

Ga. App. 738, 741 (2) (647 SE2d 399) (2007). See Titshaw, 368 Ga.

App. at 270 (4). And Smiley and Oehlerich belong to a line of Court

of Appeals cases holding that Georgia law prohibits a plaintiff from

maintaining separate causes of action where each cause of action is

based on the same conduct, the same damages, and a breach of a

22 duty arising from the same source.10

To the extent that the Court of Appeals concluded that

Plaintiffs were not permitted to maintain separate claims for legal

10 See Smiley, 352 Ga. App. at 776 (2) (“Where, as here, the breach of

fiduciary duty claim arises from the same source as the legal malpractice and misrepresentation claim (the attorney-client relationship), was allegedly breached by the same conduct (the failure to disclose the additional settlement funds), and the damages flowing from each claim are no different from the alleged legal malpractice, Georgia law provides that the claims for breach of fiduciary duty and misrepresentation cannot be asserted separately.”); Stewart v. McDonald, 347 Ga. App. 40, 50 (3) (815 SE2d 665) (2018) (holding that “[the plaintiff’s] claims for damages for fraud and breach of fiduciary duty are factually based upon [the defendant’s] breach of his fiduciary duties to [the plaintiff] in the performance of his duties as a lawyer, so the claims are duplicative of [the plaintiff’s] legal malpractice claim”), disapproved of by Coe, 314 Ga. 519; Anderson v. Jones, 323 Ga. App. 311, 318 (2) (745 SE2d 787) (2013) (affirming a grant of summary judgment against the plaintiff on a breach-of-fiduciary duty claim where “the claim duplicated her legal malpractice claim” in that “the duties arose from the same source (that is, the attorney-client relationship), were allegedly breached by the same conduct, and allegedly caused the same damages”), disapproved of by Coe, 314 Ga. 519; Oehlerich, 285 Ga. App. at 740-741 (2) (holding that the plaintiff could not maintain separate causes of action for “breach of fiduciary duty, breach of contract, and breach of the implied duty of good faith and fair dealing” because they were all “based on the establishment of a fiduciary attorney-client relationship that he claim[ed] was breached” in a legal-malpractice claim and therefore were “simply duplications of this legal malpractice claim”); Griffin v. Fowler, 260 Ga. App. 443, 450 (2) (579 SE2d 848) (2003) (noting that the plaintiff could not have a “separate cause of action for fraud apart from [a] malpractice claim” where “the damages flowing” from those claims were “no different”), disapproved of by Coe, 314 Ga. 519; McMann v. Mockler, 233 Ga. App. 279, 282 (3) (503 SE2d 894) (1998) (holding that the plaintiff could not maintain separate “claims for breach of contract, breach of implied duty of good faith and fair dealing, and breach of fiduciary duty [that] were merely duplications of her malpractice complaint”). These cases are disapproved as stated below. 23 malpractice and breach of contract based on the same conduct, it

erred. Under Georgia law, plaintiffs are permitted to pursue

alternative theories of relief based on causes of action with different

elements, even when those causes of action arise from the same

underlying conduct. See Coe, 314 Ga. at 528-529 (2) (rejecting an

argument that the plaintiffs could not simultaneously pursue a

legal-malpractice claim and other claims with different elements

that were based on “the same conduct,” “the same damages,” and

“duties ar[ising] from the same source (that is, the attorney-client

relationship)” (citation and punctuation omitted)).11 And we have

already disapproved cases from the Oehlerich/Smiley line of

11 See also Traub v. Washington, 264 Ga. App. 541, 544 (2) (591 SE2d

382) (2003) (rejecting an argument that the plaintiff could not pursue “duplicative” claims for both breach of fiduciary duty and legal malpractice because a plaintiff has “the right to plead alternative theories”); OCGA § 9-11- 8 (e) (2) (“A party may set forth two or more statements of a claim or defense alternatively or hypothetically, . . . [and] may also state as many separate claims or defenses as he has . . . .”); OCGA § 9-11-15 (c) (presuming that more than one claim can “arise[ ] out of the [same] conduct” in providing that new claims asserted in an amended pleading that are based on the same conduct at issue in the original pleading relate back to the date of the original pleading). Cf. Atlanta Women’s Specialists v. Trabue, 310 Ga. 331, 337 (2) (850 SE2d 748) (2020) (noting that a “plaintiff may plead alternative and inconsistent theories in his complaint” (citation and punctuation omitted)). 24 precedent to the extent that they suggest “claims are always

duplicative of legal malpractice claims if based on the same facts.”

Id. at 529 (2). Today, we reiterate that such cases are disapproved.

And we further clarify that plaintiffs are not prohibited from

simultaneously pursuing different causes of action with different

elements simply because the claims involve the same underlying

conduct, the same damages, and duties deriving from the same

source.

Second, Division 4 of the Court of Appeals’ decision reasonably

may be interpreted as concluding that a statute of limitation that

bars one cause of action necessarily bars other causes of action based

on the same conduct, even when those other causes of action have

different elements. Under this reading of the Court of Appeals’

opinion, it concluded in Division 4 that the breach-of-contract claim

was barred by OCGA § 9-3-25 because the claim was “duplicative”

of the legal-malpractice claim that it had concluded in Division 1

was barred by that statute of limitation. Titshaw, 368 Ga. App. at

268-270 (1), (4). But to the extent that this was the Court of Appeals’

25 reasoning, it too was erroneous.

As we have previously explained, claims “based on the same

facts” underlying a legal-malpractice claim will not necessarily “fail

on statute of limitation grounds in the same way as the legal

malpractice claim.” Coe, 314 Ga. at 529 (2). Rather, which statute of

limitation applies to a claim turns on the nature of the cause of

action at issue. See OCGA § 9-3-20 et seq. (specifying the limitation

periods for different types of causes of action). See also Newell

Recycling, 288 Ga. at 238 (explaining how to “determin[e] which

statute of limitation applies” to a breach-of-contract claim based on

the nature of the claim). And even when the same limitation period

applies to more than one claim and the claims “ar[i]se from the same

series of transactions,” each claim must be “analyzed separately to

determine when the right of action accrued for that particular

claim.” Coe, 314 Ga. at 525 (2). See Daniel v. Ga. R. Bank & Trust

Co., 255 Ga. 29, 31 (334 SE2d 659) (1985) (“Various causes of action

in tort arising from the same set of facts may commence running at

different times depending on the nature of the several causes of

26 action involved, and the fact that the statute has run as to one does

not necessarily mean that the statute has run as to all.”).

For these reasons, the Court of Appeals erred in concluding

that, because the breach-of-contract-for-legal-services claim against

CPMT was based on the same underlying conduct as the legal-

malpractice claim against CPMT, the trial court should have

dismissed the breach-of-contract claim.

(d) To determine whether the trial court properly denied

CPMT’s motion to dismiss the breach-of-contract-for-legal-services

claim as barred by the statute of limitation, the Court of Appeals

should have instead considered the two legal questions set out below

under the well-established motion-to-dismiss standard, which

provides that a court may grant a motion to dismiss only if,

tak[ing] the allegations in the complaint as true and resolv[ing] all doubts in favor of the plaintiff[,] . . . (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

27 Wise Bus. Forms v. Forsyth County, 317 Ga. 636, 644 (2) (893 SE2d

32) (2023) (citations and punctuation omitted).

When determining whether to grant a motion to dismiss a

breach-of-contract claim as barred by the statute of limitation, the

threshold question is which statute of limitation applies to the claim.

As explained in Division 3 (a) above, OCGA § 9-3-24’s six-year

limitation period governs a breach-of-contract-for-professional-

services claim premised on a breach of a duty arising directly from

a written contract with the defendant — including a breach of a duty

that is implied from the contract as a matter of law. By contrast,

OCGA § 9-3-25’s four-year limitation period governs a breach-of-

contract-for-professional-services claim premised on a breach of an

oral agreement or a breach of a duty that does not arise directly from

a written contract with the defendant. Thus, to determine which

statute of limitation applies to a plaintiff’s breach-of-contract-for-

professional-services claim at the motion-to-dismiss stage, a court

must ask whether the allegations in the complaint disclose with

28 certainty that the breach alleged by the plaintiff could not be a

breach of any duty directly arising from a written contract with the

defendant. And only if the plaintiff’s allegations show that the

plaintiff could not establish that the breach of contract that the

plaintiff alleges is a breach of a duty arising directly from a written

contract with the defendant should the court apply OCGA § 9-3-25,

rather than OCGA § 9-3-24, to the claim.

After determining which statute of limitation applies to a

plaintiff’s breach-of-contract claim, a court ruling on a motion to

dismiss the claim as barred by the statute of limitation must

consider whether it is possible, within the framework of the

complaint, for the plaintiff to prove that the breach-of-contract claim

was filed within the applicable limitation period. Only if it is certain

that the plaintiff cannot make such a showing should the court grant

the motion to dismiss the breach-of-contract claim as barred by the

statute of limitation. See Wise Bus. Forms, 317 Ga. at 644 (2).

Because the Court of Appeals did not apply these legal

principles in reversing the trial court’s denial of CPMT’s motion to

29 dismiss Appellants’ breach-of-contract-for-legal-services claim, we

vacate Division 4 of the Court of Appeals’ opinion. And as explained

above, because a conflict in precedent would arise if we vacated

Division 4 but not Division 2 of the Court of Appeals’ opinion, we

exercise our discretion to vacate Division 2 as well. The cases are

remanded for further proceedings consistent with this opinion.

Judgments vacated and cases remanded. All the Justices concur.

PINSON, Justice, concurring.

When this Court reviews decisions of the Court of Appeals on

certiorari, we often review only a part of the decision below. See, e.g.,

Melancon v. State, 319 Ga. 741 (906 SE2d 725 (2024) (reviewing

conclusion that evidence was sufficient to support conviction, but not

conclusion that trial counsel did not render ineffective assistance).

In those cases, if we conclude that the Court of Appeals erred with

respect to the portion of the decision under review, we typically write

an opinion explaining why we think that, and then issue a judgment

30 that vacates or reverses the Court of Appeals’ judgment and

remands for further proceedings as needed. See id. at 742. In rare

cases, however, we have also said in our opinions that we are

vacating or reversing not only the judgment, but also specific

divisions of the Court of Appeals’ opinion below. Although I have

before joined and even authored opinions that include that

additional language, I have come to believe that such language does

not accurately reflect the effect of our decisions. I write separately

to explain what I think that language actually means, and to suggest

that we use more precise language going forward.

1. That explanation mostly has to do with the different

functions of judgments and opinions, so let’s start there.

Speaking generally, a judgment is the mechanism through

which a court resolves legal disputes. Parties come before a court to

settle a controversy about their relative rights and obligations under

the law, and the court exercises the judicial power to settle those

rights and obligations in a binding way. See Sons of Confederate

Veterans v. Henry County Bd. of Commissioners, 315 Ga. 39, 47-48

31 (2) (a) (880 SE2d 168) (2022). That power is formally exercised —

and thus the parties’ rights and obligations are formally settled —

through the entry of a judgment. See Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 219 (115 SCt 1447, 131 LE2d 328) (1995)

(explaining that “a judgment conclusively resolves the case” because

“a ‘judicial Power’ is one to render dispositive judgments” (quoting

Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev.

905, 926 (1990))). See also, e.g., Judgment, Black’s Law Dictionary

(12th ed. 2024) (defining a judgment as the “final determination of

the rights and obligations of the parties in a case”); 1 Henry

Campbell Black, A Treatise on the Law of Judgments § 1, at 2 (1st

ed. 1891) (“We may therefore define a judgment as the

determination or sentence of the law, pronounced by a competent

judge or court, as the result of an action or proceeding instituted in

such court, affirming that, upon the matters submitted for its

decision, a legal duty or liability does or does not exist.”). Put simply,

when a court enters a judgment granting or denying the relief

sought, it “settle[s] authoritatively what is to be done” about the

32 controversy at issue. Edward A. Hartnett, A Matter of Judgment,

Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 127 (1999)

(alteration in original) (quoting Larry Alexander & Frederick

Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv.

L. Rev. 1359, 1377 (1997)). See also 3 William Blackstone,

Commentaries on the Laws of England *396 (1768) (“The judgment,

in short, is the remedy prescribed by law for the redress of injuries;

and the suit or action is the vehicle or means of administering it.”).

Unlike judgments, opinions do not resolve the controversy

before the court. Instead, an opinion expresses a court’s reasons for

its judgment. See, e.g., Hartnett, 74 N.Y.U. L. Rev. at 126 (“The

operative legal act performed by a court is the entry of a judgment;

an opinion is simply an explanation of reasons for that judgment.”);

Charles A. Sullivan, On Vacation, 43 Hous. L. Rev. 1143, 1155

(2006) (“[T]he judgment is the action the court takes to resolve the

case before it; the opinion explains and justifies the court’s action.”);

Gary Lawson & Christopher D. Moore, The Executive Power of

Constitutional Interpretation, 81 Iowa L. Rev. 1267, 1328 (1996)

33 (“Judgments are often accompanied by opinions, which express the

reasons that lie behind the judgment.”). To use Judge Easterbrook’s

words, a judgment supplies “the binding force of a decision,” while

the opinion supplies “the rule of decision that produced it.”

Easterbrook, 40 Case W. Res. L. Rev. at 926. That function is by no

means unimportant: For the case before the court, disclosing the

reasons for the court’s decision gives guidance to the lower courts

and parties as they move forward with the litigation. And beyond

the case itself, the reasons set out in an appellate opinion that are

necessary to the court’s judgment become holdings that are binding

precedent within the judicial system. See Ga. Const. of 1983, Art.

VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind

all other courts as precedents.”); In the Interest of R. J. A., 316 Ga.

822, 824 (890 SE2d 698) (2023) (Pinson, J., concurring in the denial

of certiorari) (“[T]he universe of things that are potentially

necessary to an appellate court’s decision — and thus make up its

holding — is contained within that court’s opinion.”). But when it

comes to resolving the controversy before the court, it is the

34 appellate court’s judgment, not its opinion, that gets the job done.

2. Given the respective functions of judgments and opinions,

what is this Court doing, and not doing, when it reviews a decision

of the Court of Appeals on certiorari?

First, judgments. Because the entry of a judgment is “[t]he

operative legal act performed by a court,” appellate courts act

through judgments, too. Hartnett, 74 N.Y.U. L. Rev. at 126. So when

this Court reviews the decision of a lower court, including the Court

of Appeals, we are ultimately reviewing and acting on the court’s

judgment, not its opinion. See Sullivan, 43 Hous. L. Rev. at 1155

(“Although our citation system seems to suggest that what is being

affirmed, reversed, or vacated is the opinion of the court being cited,

what is formally at stake is the lower court’s judgment, not its

opinion.”). Indeed, we know this to be true because “when an

appellate court disagrees with a lower court’s opinion, but agrees

with its judgment, it affirms rather than reverses.” Hartnett, 74

N.Y.U. L. Rev. at 131 (emphasis added). And if that’s not enough

evidence, just look to the decretal language at the end of this Court’s

35 opinions, which, with the exception of dismissing an appeal for lack

of jurisdiction, always states what action this Court takes with

respect to the lower court’s judgment — either affirming, modifying,

vacating, or reversing the judgment, in whole or in part. See, e.g.,

supra. See also Sullivan, 43 Hous. L. Rev. at 1156. (“With respect to

this core function of dealing with judgments, . . . the reviewing court

has only five options: dismiss the appeal, which effectively affirms

the judgment below; explicitly affirm that judgment; modify the

judgment; reverse that judgment; or vacate it.”). By issuing a

judgment affirming or rejecting the lower court’s judgment, an

appellate court settles authoritatively whether the lower court

correctly determined the rights and obligations of the parties before

it, and if not, sets the lower court on the right track to doing so.

The effect of a decision of this Court on a lower court’s

judgment is fairly straightforward. If we affirm the judgment, that

judgment’s resolution of the controversy at issue — say a grant of

summary judgment — remains in force. On the other hand, if we

vacate or reverse a judgment, that judgment is set aside, and so on

36 remand, the lower court must enter a new judgment consistent with

whatever guidance we have given in our opinion.12

The effect of a decision of this Court on a lower court’s opinion,

however, is different. Because appellate courts review and act on a

lower court’s judgment, not its opinion, our decision — whether it

affirms, vacates, or reverses the judgment below — does not act

12 A judgment is vacated and thus set aside whether it is “vacated” or

“reversed.” A reversal of a judgment is simply a subset of a vacatur that indicates to the lower courts that the higher court has determined that the opposite judgment must be entered instead. Compare, e.g., First Acceptance Ins. Co. of Ga., Inc. v. Hughes, 305 Ga. 489 (826 SE2d 71) (2019), on remand at 353 Ga. App. 320, 320 (836 SE2d 634) (2019) (reversing the judgment of the Court of Appeals, which on remand said that, following reversal, “our decision . . . is vacated” and then adopted “the judgment of the Supreme Court [as] the judgment of this court”), with WS CE Resort Owner, LLC v. Holland, 315 Ga. 691 (884 SE2d 282) (2023), on remand at 368 Ga. App. 873 (891 SE2d 440) (2023) (vacating the judgment of the Court of Appeals, which then remanded to the trial court to apply in the first instance the test articulated by the Supreme Court). See also Hon. Jon O. Newman, Decretal Language: Last Words of an Appellate Opinion, 70 Brook. L. Rev. 727, 728 (2005) (explaining basic difference between reversal and vacatur, but noting disagreement about where to draw the line between one and the other). In cases where an appellate court reviews multiple parts of a lower court’s decision, the court might also issue a judgment that affirms the judgment in part and vacates or reverses the judgment in part. For example, in Martin v. Six Flags Over Ga. II, L.P., 301 Ga. 323 (801 SE2d 24) (2017), the Court of Appeals concluded that a jury was authorized to find the defendant liable for premises liability but that erroneous pretrial rulings on apportionment required a full retrial. On certiorari review, we agreed with the Court of Appeals’ conclusion on liability, but we concluded that the apportionment error required a retrial only as to apportionment, so we affirmed the judgment in part and reversed it in part. See id. at 341 (III). 37 directly on the lower court’s opinion itself, at least not formally. Just

as an affirmance of a judgment does not necessarily stamp a lower

court’s opinion with full approval, see, e.g., WMW, Inc. v. American

Honda Motor Co., Inc., 291 Ga. 683, 683 (733 SE2d 269) (2012)

(“[W]hile we disagree with the rationale of the majority opinion

below, it reached the right result, and we therefore affirm the Court

of Appeals’ judgment.”), vacatur or reversal of a judgment does not

mean that the accompanying opinion itself is set aside. (For evidence

of that conclusion, consult our reporters, where Court of Appeals

opinions that have been vacated or reversed by this Court remain

published and searchable in electronic databases.) Instead, when

this Court vacates or reverses a judgment of the Court of Appeals,

its effect is to strip the opinion accompanying that judgment of

binding precedential effect. See County of Los Angeles v. Davis, 440

U.S. 625, 634 n.6 (99 SCt 1379, 59 LE2d 642) (1979) (“Of necessity

our decision ‘vacating the judgment of the Court of Appeals deprives

that court’s opinion of precedential effect.’”). This makes sense: if

reasoning in an opinion becomes binding precedent because it is

38 necessary to a judgment, that reasoning ceases to be binding when

the underlying judgment no longer exists.13

This understanding of the effect of our decisions also makes

sense in light of our constitutional role. That role, just like every

court in our constitutional system, is limited to resolving the

controversy between the parties who come before us. Sons of

Confederate Veterans, 315 Ga. at 50 (2) (b) (“We recognized early in

our Court’s history that th[e judicial] power is limited to deciding

genuine ‘controversies.’”). We do that job on appeal by reviewing

and, if needed, correcting judgments, not by grading, or modifying,

or erasing opinions. Of course, in reviewing a judgment, we may

express disagreement with the opinion below, or even precedents

from other cases, but even then, we do so only as needed to reach

13 In referring to the precedential effect of the opinion, I mean to address

only whether the holdings of the opinion are binding precedent for future cases, not any effect on law of the case, which binds the parties in the current case. If this Court vacates or reverses a judgment below, but our decision leaves a portion of the Court of Appeals’ decision undisturbed, the courts below would not be free to reconsider that portion of the decision. Instead, on remand, the Court of Appeals would issue a new decision consistent with ours, and the undisturbed portion of the Court of Appeals’ original decision would be law of the case. See, e.g., Sec. Life Ins. Co. of America v. Clark, 273 Ga. 44, 46-47 (1) (535 SE2d 234) (2000). 39 and explain our decision. Indeed, even when a lower court’s opinion

is stripped of its precedential effect, that consequence is generally a

side effect of the core exercise of judicial power in the case, which is

expressed through the vacatur of the judgment below.

In short, when this Court reviews a decision of the Court of

Appeals on certiorari, we formally review and act upon the judgment

below, not the opinion. If we agree that the judgment that the Court

of Appeals ultimately reached is correct, we affirm the judgment. If

we disagree with the judgment, we vacate or reverse it, in whole or

in part, and we remand the case to the Court of Appeals for further

proceedings. And when a judgment of the Court of Appeals is

vacated or reversed, the opinion below is deprived of its precedential

effect, but it is not erased or set aside.

3. This brings me to the language we use to describe the effect

of our decisions reviewing decisions of the Court of Appeals. In the

lion’s share of such decisions, we include decretal language at the

end of the opinion that properly reflects the effect of the decision on

the judgment below — affirming, modifying, vacating, or reversing

40 that judgment, in whole or in part — and gives further direction for

remand as needed. But sometimes, we will include somewhere in our

opinion a separate statement purporting to “vacate” or “reverse” a

specific “division” of the Court of Appeals’ opinion. I’ll offer some

thoughts on how best to understand this language and what, if

anything, it might be doing.

To begin with, I hope the discussion above makes clear enough

what I think this “vacating divisions” language does not mean.

Because judgments are the operative legal act through which we

exercise core judicial power, our decisions formally address the

judgments of lower courts, not any opinions that may accompany

their judgments. And although vacating or reversing a judgment

below deprives an accompanying opinion of precedential effect, it

does not somehow erase or set aside that opinion. So I don’t think

this additional language can be taken literally to mean that this

Court is formally modifying, revising, erasing, or setting aside

specific divisions of the Court of Appeals’ opinion, or even ordering

as much.

41 So what might this language mean instead? It may be that this

language has been used on occasion not to describe the formal effect

of our decision on the Court of Appeals’ decision, but instead as a

shorthand for what portions of the Court of Appeals’ decision we

have addressed — the idea being to guide the Court of Appeals on

remand. If that is the aim, we should take care in when and how we

give such guidance.

For starters, we should be mindful that we have already given

the Court of Appeals guidance on how to address the effect of our

decisions on remand. In Shadix v. Carroll County, 274 Ga. 560, 563

(1) (554 SE2d 465) (2001), we said that “the Court of Appeals, when

considering the effect of a reversal from this Court, should not look

for nomenclature in our opinion to define the scope of our ruling,”

because “[n]o such ‘magic words’ are required to circumscribe our

reversals.” We further explained that when this Court reverses a

decision of the Court of Appeals “without considering or addressing

a division of that opinion” — a common occurrence on certiorari

review — “we do not determine our reversal’s impact upon that

42 particular division,” but instead “leave it to the Court of Appeals to

determine what impact, if any, our reversal has upon that particular

division.” Id. And we concluded with express directions for

addressing the reversal of a decision on remand: (1) “read this

Court’s opinion within the context of the opinion being reversed”; (2)

“determine whether any portions of the opinion being reversed were

neither addressed nor considered by the Supreme Court”; and (3)

“enter an appropriate disposition with regard to those portions that

is consistent with the issues addressed and considered by this

Court.” Id. at 563-564 (1). In other words, we have told the Court of

Appeals not to look for “magic words” that say what parts of their

opinion are implicated; that this Court does not determine the

impact of our decisions on the opinions below (as distinct from the

judgments); and that we leave it to the Court of Appeals to do that

on remand and, in light of that determination, enter an appropriate

disposition. In my view, that guidance is clear and sensible, and it

generally puts responsibility for addressing the effect of our decision

in the right hands: in keeping with this Court’s role as the reviewing

43 court, we review the decision before us and explain whether and how

the Court of Appeals erred, but it is left to the Court of Appeals on

remand to determine what is left in the case at that stage for the

court to consider (or reconsider) and decide.

That said, I do not understand Shadix to preclude this Court

from offering limited and specific guidance as to which portion of the

Court of Appeals’ reasoning is the focus of our decision. We might do

that, for example, in a case like this one, where we have jurisdiction

to review only one of multiple judgments, and so we need to be clear

which decision and reasoning is the subject of our review. But in

such cases, we should be careful to give that guidance using

language that is both precise and consistent with our past guidance

for applying our decisions on remand. Rather than simply

purporting to “vacate” or “reverse” certain divisions of the opinion

below, we might say instead that the judgment below is vacated

because the reasoning in those specific divisions was in error, and

we leave it to the Court of Appeals on remand to determine whether

any of its other holdings must be reconsidered in light of our opinion.

44 One other possible meaning might be ascribed to this “vacating

divisions” language. When the basis for vacating or reversing a

judgment of the Court of Appeals is a disagreement with or

disapproval of reasoning of the Court of Appeals that is contained in

a specific division of its opinion, this Court might say that it is

“vacating” or “reversing” that division to make clear that the

reasoning in that division is no longer binding precedent. I do not

think that language is stripping the division in such a case of

precedential effect as a formal matter because, as I mentioned

above, the accompanying opinion is already deprived of its

precedential effect through vacatur of the judgment.14 But because

14 Although it is thus not necessary to add this language to deprive an

opinion of further precedential effect in cases where this Court is already vacating the judgment below, language similar in kind might well be used to strip a division or opinion of precedential value in a case where we ultimately affirm the judgment. See, e.g., Fulton County v. Ward-Poag, 310 Ga. 289 (849 SE2d 465) (2020) (disapproving of Court of Appeals’ reasoning creating a bright-line rule that a party takes consistent positions, and thus lacks intent to deceive the court system, when the party amends a bankruptcy schedule to include a previously undisclosed asset, but nevertheless affirming the Court of Appeals’ judgment and its ultimate conclusion that summary judgment was unwarranted in the case because genuine issues of fact remained). In such a case, without language that clearly indicates our disagreement with particular reasoning of the Court of Appeals that is within the scope of our review on

45 that precedent-destroying effect of vacatur is implicit, including

such language might be used to signal to readers more clearly just

which reasoning is infirm and should not be relied on. If that is the

purpose for including such language, however, we might again

choose language that does not give the misimpression that our

decision is taking some formal action with respect to the opinion

itself beyond the automatic stripping of its precedential effect that

vacatur already takes care of.

4. That leaves this case. For the reasons above, it would be

better not to say in our opinion here that we are “vacating” certain

divisions of the Court of Appeals’ opinion below, because we are not.

Instead, we should say that we disagree with (or disapprove of) the

reasoning in Division 4 of its opinion because, in reversing the trial

court’s denial of CPMT’s motion to dismiss Titshaw’s breach-of-

contract-for-legal-services claim, the court did not apply the correct

legal principles, which we set out in our opinion. The only thing

certiorari, courts might inadvertently rely on that disapproved reasoning in a future case. 46 related to Division 4 that we are vacating is the judgment in Case

No. A23A0439, which that Division addresses. And because the

same reasoning the Court of Appeals applied in Division 4 appears

in Division 2 of Case No. A23A0410, we are vacating the Court of

Appeals’ judgment in that case as well. (We are exercising our

discretion to vacate that judgment even though the claim against

Geer addressed in Division 2 has been mooted by a settlement

between Titshaw and Geer, because leaving that judgment in place

would leave the Court of Appeals’ opinion as binding precedent in

conflict with our decision in this case. See WMW, Inc., 291 Ga. at

685 (2) n.1 (noting that settlement can moot an appeal but exercising

discretion to vacate the decision below to avoid “a judgment,

unreviewable because of mootness, from spawning any legal

consequences” (quoting United States v. Munsingwear, Inc., 340

U.S. 36, 41 (71 SCt 104, 95 LE 36) (1950)))). I still join the Court’s

opinion because I understand that language to mean what I have

just said here. But in the future, I hope we will avoid such imprecise

language and just say what we mean.

47 *

If you’ve made it to the end of this separate writing, you might

be left with the impression that I’m just quibbling over word choice.

Maybe so. But words uttered by courts have power. Our Constitution

vests courts with the power to settle definitively the rights and

obligations of the parties who appear before us. And although the

words we use in our opinions don’t do that settling as a formal

matter, they justify how those rights and obligations are settled, and

they give rise to precedent that is binding throughout our State’s

judicial system. These functions are central to the rule of law and

thus solemn responsibilities of every appellate court. Given the

stakes, the more care we take with our words, the better,

particularly when ours is the last word.

48 Decided October 22, 2024.

Certiorari to the Court of Appeals of Georgia — 368 Ga. App.

266.

Hotchkiss Hoffecker Peacock, Michael R. Peacock, for

appellants.

Hall Booth Smith, Donald B. Brown, Austin Atkinson, S.

Meghan Pittman; Hawkins Parnell & Young, Christine L. Mast, for

appellees.

Linley Jones, Angela M. Forstie, amici curiae.