Kilby v. Shepherd, 339 S.E.2d 742 (Ga. App. 1986)

GA: Underlying matter: Real Estate; Fraud

Student Contributor: Paul Barnhill

FACTS: Client hired attorney in connection with several deeds to real property her late husband had previously conveyed to his sister, claiming fraud and incompetency regarding the conveyance on March 20, 1975. Client did not specify the actions of fraud well enough in the original complaint, so the complaint was dismissed, and client was given thirty days to set forth the specific acts of fraud. Attorney voluntarily dismissed the suit outright on October 14, 1975, and no other amendments or appeals regarding the court’s dismissal were filed. On April 24, 1981, client’s sister-in-law filed a dispossess action against client, and client countered with an action to cancel the deeds at issue. Client’s counterclaim was dismissed because of the voluntary dismissal made on October 14, 1975; this ultimately was affirmed by the Georgia Supreme Court. On June 22, 1984, Client filed a malpractice action against Attorney, and on May 29, 1985, the trial court granted summary judgment for Attorney, citing the statute of limitations. Client then appealed.

ISSUE: Was Client’s malpractice action barred by the statute of limitations?

RULING: The cause of action in a malpractice case in Georgia arises on the commission of a wrongful act, and it can be filed under a tort theory for negligence, which carries a two-year statute of limitations, or under a breach of the employment contract, which carries a four-year statute of limitations. Client’s claim to the property in this case required a successful suit to set aside to deeds of the property in question, and any action relating to this occurred in 1975. Fraud may extend the statute of limitations, but the fraud must rise to a level of moral turpitude and must debar or deter an action by the plaintiff. Therefore, the malpractice suit was filed outside of the statute of limitations and summary judgment for attorney was affirmed.

LESSONS: This case presents another aspect of Georgia’s statute of limitations regarding legal malpractice and the strictness with which it is applied. Alleging fraud on the part of the defendant attorney is also not enough to overcome the rule that allows an extension of the statute of limitations; the fraud must specifically allege some element of moral turpitude and the action itself must debar or deter the plaintiff from filing a legal malpractice action.