                              FOURTH DIVISION
                                BARNES, P. J.,
                            RAY and MCMILLIAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                    October 1, 2015


In the Court of Appeals of Georgia
 A15A0770. TUCKER et al. v. ROGERS.

      BARNES, Presiding Judge.

      Alan David Tucker and Alan David Tucker, Esq., P.C., appeal the trial court’s

grant of partial summary judgment on liability to Tucker’s former client James Rogers

in this legal malpractice case. For the reasons that follow, we reverse.

      “To prevail on summary judgment, the moving party must show that no

genuine issues of material fact remain to be tried and that the undisputed facts,

viewed in the light most favorable to the nonmovant, warrant summary judgment as

a matter of law.” (Citation omitted.) Duke Galish v. Arnall Golden Gregory, 288 Ga.

App. 75, n. 1 (653 SE2d 791) (2007). We view the evidence in the light most

favorable to the respondent, as the non-moving party. Peters v. Hyatt Legal Servs.,

211 Ga. App. 587, 592 (2) (b) (440 SE2d 222) (1993).

      So viewed, the evidence establishes without dispute that Rogers was on his

motorcycle stopped at a stop sign on November 24, 2006, when a car turned onto the
street where Rogers was waiting and struck him head-on. Rogers initially attempted

to negotiate a settlement with the other driver’s liability carrier but signed a

contingency fee contract with Tucker on December 10, 2007 because he was

dissatisfied with the carrier’s $7,500 offer of settlement.

      The contract provided that Rogers retained Tucker’s firm “to prosecute, settle,

compromise or litigate all claims arising” from the November 24, 2006 incident, “as

a result of which [Rogers] may have an action for damages against [the other driver.]”

It authorized Tucker “to fully investigate the facts and law relative to the Matter” and

gave him “the discretionary right to determine whether or not it is feasible to pursue

the Matter.” If Tucker determined it was feasible to pursue the claim, he would be

entitled to a contingent fee of one-third of the sum recovered if the claim was settled

before suit was filed, 40 percent if suit was filed, and 45 percent if any judgment was

appealed or post-judgment collection proceedings were required. Tucker was not

authorized to settle or compromise the client without Rogers’ specific approval, and

if a lawsuit did not end favorably, Rogers would owe no attorney fees to Tucker,

although Rogers would remain responsible for paying fees and costs. Finally, the

contract contained a disclaimer noting that Tucker had no control over the length of

time it would take to reach a resolution of the case once he filed a lawsuit.

                                           2
      Rogers began obtaining treatment from a physician recommended by Tucker.

After Rogers finished treating with that physician, Tucker sent a demand letter on

October 3, 2008, to the other driver’s insurer, offering to settle the claim for

$100,000. The insurer countered with the same $7,500 it offered to Rogers before he

hired Tucker. On October 21, 2008, about a month before the expiration of the statute

of limitations, Tucker called Rogers’ home number and found it had been changed,

then called Rogers’ cell phone number twice and Rogers did not answer. Tucker

testified that although he had Rogers’ work number in his file, he did not call it

because it was a work number and “[r]ather than bother him at work,” he chose to

write Rogers a letter instead and send it by regular mail.

      In the letter, Tucker stated that the insurer had offered to settle the claim for

$7,500 and advised Rogers that he thought the claim was worth more than that. He

advised Rogers to decline the settlement offer and allow him to file suit. The letter

continued,

      However, the decision to file suit or take their offer is totally up to you.
      Please remember that the “Statute of Limitation” runs on your claims
      against [the other driver] on November 23, 2008. If you want me to file
      suit, you must authorize me to do so prior to November 23, 2008. Please
      advise me as to how you wish to proceed. I have tried to call you several
      times and have been unable to reach you.

                                           3
      Tucker made no further efforts to contact Rogers and did not hear back from

him. He did not know for certain that Rogers had received the letter or whether

Rogers was incapacitated in any way. The statute of limitation ran on November 24,

2008, without suit being filed. On December 15, 2008, Tucker testified, he picked up

Rogers’ file, “noticed [Rogers] hadn’t called,” and closed it. Then, although he did

not have Rogers’ permission to settle the case, Tucker decided to contact the

insurance adjuster to see if he “could at least get [Rogers] his $7500” since the statute

had already run. Tucker sent the adjuster a letter on December 18, 2008, accepting her

October 21, 2008, offer to settle Rogers’ claims for $7,500. When asked why the

insurer agreed to honor the settlement offer even though the statute of limitation had

expired, Tucker theorized that perhaps the insurer did so due to Tucker’s “long

working relationship” with the adjuster.

      Shortly afterward, someone from the insurance company called Tucker’s office

and asked his assistant if Rogers were married, and if so, was she a party to the

settlement and for her name and social security number. The assistant tried calling the

three telephone numbers in Rogers’ file, and reached Rogers on his cell phone. The

cell phone number was written on a post-it note in the file and had been in the file

folder since the file was created on December 10, 2007. When Rogers asked why the

                                           4
assistant wanted the information, she responded that the insurance company had

asked for it and she thought it had something to do with a check. Rogers asked the

assistant what she was talking about, and she said all she knew was that the adjuster

called and asked her for the name and social security number of Rogers’ wife.

       Rogers came to Tucker’s office to ask about his case. Tucker told him he had

a check “for $7,000 and some change,” but Rogers protested that the insurer had

already offered him $7,500 and he would not take it, which is the reason he hired

Tucker. Tucker then told Rogers that the statute of limitation had run and it was too

late to file suit. Rogers testified that the first time he had ever seen Tucker’s October

21, 2008, letter was the day he went to Tucker’s office in December 2008. Rogers

obtained a copy of his file and subsequently sued Tucker for legal malpractice, breach

of fiduciary duty, breach of contract, punitive damages, and attorney fees under

OCGA § 13-6-11.

       Following discovery, Rogers moved for partial summary judgment as to

liability for legal malpractice, based on two separate violations of the standard of

care: (1) Tucker’s failure to file suit before the expiration of the statute of limitations,

and (2) Tucker’s settlement of Rogers’ claim without permission. Rogers further

sought summary judgment as to proximate cause, arguing that Tucker’s failure to file

                                             5
suit before the statute expired made Rogers lose his right to pursue a personal injury

suit against the driver who hit him. Finally, Rogers sought summary judgment on the

liability of the defendant in the underlying case, because Tucker had admitted that it

was a clear liability case.

       The trial court granted the motion for partial summary judgment and found no

genuine issues of material fact regarding liability for legal malpractice, proximate

cause, and liability of the other driver in the underlying personal injury case. On

appeal, Tucker argues that the trial court erred on each of these issues.

       1. To prevail on a claim for legal malpractice, the plaintiff must show three

things: (1) that plaintiff employed the defendant attorney, (2) that the attorney failed

to exercise ordinary care, skill and diligence, and (3) that this failure proximately

caused damages to the plaintiff. Paul v. Smith, Gambrell & Russell, 267 Ga. App.

107, 108 (1) (599 SE2d 206) (2004). In this case, the parties do not dispute that

Rogers hired Tucker to represent him in his personal injury claim, but Tucker argues

on appeal that genuine issues of material fact exist for a jury to determine regarding

the second and third prongs of the malpractice claim: whether his actions breached

the standard of care and if so, whether the breach proximately caused damages to the

plaintiff.

                                           6
      a. Tucker asserts that the trial court erred in granting summary judgment on the

issue of legal malpractice because questions of fact exist for a jury to determine

regarding whether he breached the standard of care by failing to file suit before the

statute of limitation ran. Tucker also points out that Georgia’s Code of Professional

Responsibility alone does not determine liability in a legal malpractice action, and

argues that, under the circumstances in this case, his failure to file suit before the

statute of limitation expired did not make him strictly liable.

      Both Tucker’s expert and Rogers’ expert agreed that an attorney should consult

with a client before filing a lawsuit. As Tucker’s assistant observed, “A lot of people

don’t want a lawsuit,” and so standard practice in Tucker’s office was to send out a

letter and tell them when the statute will run so that if they want suit filed the clients

can contact Tucker and let him know.

      Our appellate courts have held that

      an alleged violation of the Code of Professional Responsibility (State
      Bar Rules 3-101 et seq.) or the Standards of Conduct (State Bar Rule
      4-102), standing alone, cannot serve as a legal basis for a legal
      malpractice action. ... This is so because[,] while the Code of
      Professional Responsibility provides specific sanctions for the
      professional misconduct of the attorneys whom it regulates, it does not



                                            7
      establish civil liability of attorneys for their professional misconduct,
      nor does it create remedies in consequence thereof.


(Citations and punctuation omitted.) Allen v. Lefkoff, Duncan, Grimes & Dermer

P.C., 265 Ga. 374 (1) (453 SE2d 719) (1995); Georgia Rules of Professional

Conduct, Chap. 1, Scope (“These Rules are designed to provide guidance to lawyers

and to provide a structure for regulating conduct through disciplinary agencies. They

are not designed to be a basis for civil liability.”). While a violation of the

Professional Code does not per se establish legal malpractice liability, however,

“pertinent Bar Rules are relevant to the standard of care in a legal malpractice action.”

Allen, 265 Ga. at 376 (2) (a).

      Tucker testified that he had no authority to file suit without explicit instructions

from Rogers, and contends that the statute ran without suit being filed because Rogers

failed to inform him that he had changed his home number, failed to answer his cell

phone when called twice in one day, and failed to respond to Tucker’s October 21,

2008, letter seeking permission to file suit. Tucker needed permission from Rogers

to file suit, he testified, because his fee would increase from one-third to 40 percent

and because Rogers would become responsible for paying the costs of filing suit.




                                           8
      Tucker’s expert on legal malpractice testified that the decision whether to file

suit belonged to the client, and that an attorney is not automatically obligated to file

suit solely because he had been retained as counsel. Whether an attorney was entitled

to file suit on behalf of a client depended on whether he was authorized to do so, and

that authority depended on the case, the client, and the understanding between the

attorney and client, the expert said. In the expert’s opinion, the provision in the fee

agreement that Rogers retained Tucker to prosecute or litigate the claims, was just a

“standard sort of language used that any of those possibilities may occur during the

representation,” and did not authorize Tucker to file suit on Rogers’ behalf. Finally,

Tucker’s expert testified that Tucker’s actions in sending a letter via regular mail a

month before the statute, asking Rogers to elect whether to settle for $7,500 or file

suit, and then making no further attempt to contact Rogers before the statute ran, did

not fall below accepted standards of care. Tucker was aware of the date the statute

would run, he informed Rogers, and Rogers “missed the statute if he wanted his

lawsuit filed” by failing to respond to the letter.

      Tucker’s expert would have done things differently, and would have filed suit

with his client’s permission long before the statute was close to expiring. But how

long in advance of the statute’s expiration a suit should be filed, he asserted, was

                                           9
entirely “driven by the communication with your client and your advice given to the

client and your instructions received from the client and there has to be a meeting of

the minds.” Both Tucker and his expert testified that they thought that the parties’ fee

agreement in this case did not authorize Tucker to file suit without Rogers’

permission.

      Roger’s legal malpractice expert was of the opinion that Tucker’s actions fell

below the standard of care because he failed to obtain a response from the client

about whether to accept the settlement offer or file suit before the statute ran. In the

expert’s opinion, “sending a letter to a client that places an affirmative duty on the

client to respond to you and [assuming] that the absence of that response constitutes

an acceptance of the offer you advise they not take” did not meet the standard of care.

And in her opinion, sending the letter in this case with a fairly short time before the

filing deadline was “extremely unusual.” Further, the expert opined, Tucker had the

authority and permission to file suit in the case pursuant to the fee contract, and did

not require further permission to file under Bar Rule 1.2 (a), which provides that a

lawyer is impliedly authorized to do what is necessary to effect the purpose of the

engagement.



                                          10
      The competing expert testimony regarding whether Tucker’s actions fell below

the standard of care or not constitutes a genuine issue of material fact that must be

resolved by a jury.

      b. Tucker also contends that the trial court erred in holding that Tucker violated

the applicable standard of care in accepting the insurer’s offer to settle Rogers’ claim

for $7,500 after the statute ran. We disagree.

      Tucker admitted he had no authority to settle Rogers’ claim without express

permission, and the parties’ contract explicitly required that Tucker obtain approval

from Rogers before agreeing to a settlement. Rogers’ expert testified that accepting

the offer violated not only the parties’ contract but also the Code of Professional

Responsibility. Tucker’s expert testified that telling the insurance company that

Rogers accepted its $7,500 offer without talking to Rogers was “probably a technical

violation.”

      The experts thus agree that Tucker violated the applicable standard of care by

accepting a settlement offer that the insurer was not obliged to pay after the statute

of limitation ran, and the trial court did not err in so finding.

      2. Tucker also argues on appeal that the trial court erred in finding that

Tucker’s breach of the standard of care was the proximate cause of Rogers’ damages.

                                           11
We agree. Based on our conclusion in Division 1 (a) that a jury question exists as to

whether Tucker violated the standard of care by not filing suit before the statute ran,

it follows that the trial court erred in granting summary judgment on the issue of

whether that breach proximately caused damages.

      Further, while the experts agreed that Tucker breached the standard of care in

accepting the insurer’s offer without consulting Rogers, Tuckers’ expert testified that

accepting the insurer’s offer after the statute expired actually benefitted Rogers

because there was no claim left to settle after the statute expired. Whether this breach

proximately caused damages is therefore a factual issue for the jury to resolve.

      3. Finally, Tucker argues that the trial court erred in granting summary

judgment to Rogers on the liability of the at-fault driver in the underlying personal

injury claim.

      An action for the negligence of the attorney in the unskillful conduct and
      management of litigation is for the value of the claim lost through such
      negligence. The claim must be valid, and every fact essential to its
      validity must appear, and it must further appear that the party against
      whom the claim was asserted was solvent.


(Citation and punctuation omitted.) McDow v. Dixon, 138 Ga. App. 338 (226 SE2d

145) (1976). If the plaintiff proves the first two elements of a legal malpractice claim,

                                           12
he must then “show that, but for the attorney’s negligence in the underlying case, the

plaintiff would have prevailed.” (Citation and punctuation omitted.) Leibel v.

Johnson, 291 Ga. 180, 182 (728 SE2d 554) (2012). This phase is “the so-called ‘suit

within a suit,’ to determine whether the client was, in fact, damaged by that

negligence. Thus, the ultimate goal of the ‘suit within a suit’ is to determine what the

outcome should have been if the issue had been properly presented in the first

instance.” Id.

      Here, Tucker testified that the other driver in the underlying incident was

clearly liable for colliding with Rogers as he waited on his motorcycle at a stop sign,

and that he thought that Rogers’ damages claim was worth more than $7,500. He

advised Rogers in his October 2008 letter not to take the offer of $7,500, which was

the amount the insurer had offered Rogers a year before and which resulting in him

hiring Tucker. Tucker further testified that if the insurer had “put [$]25,000 on the

table” he would have told Rogers to consider the offer. And the record contains some

proof that Rogers could have recovered a damages award because the tortfeasor was

insured. The record thus establishes no issue of fact as to the liability of the defendant

in the underlying personal injury claim, and the trial court did not err in this regard.

We note, however, that a question of fact remains regarding the amount of damages

                                           13
a jury would have awarded Rogers if Tucker had filed suit before the statute of

limitation expired and the case had gone to trial.

      In summary, the jury must first determine whether Tucker violated the

applicable standard of care in the events leading up to the expiration of the statute of

limitations without suit being filed. If he did not, then the jury should consider only

whether his violation of the standard of care in settling Rogers’ claim without

consulting him proximately caused damages. On the other hand, if the jury finds that

Tucker did violate the standard of care by allowing the statute to expire without filing

suit, then the jury should consider whether the breach proximately caused damages,

based on the value of his underlying personal injury claim.

      Judgment reversed. Ray and McMillian, JJ., concur.




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