Randall M. Kessler v. Andrea Engelman
340 Ga. App. 239
| Ga. Ct. App. | 2017Background
- Engelman retained Kessler, Tesser, Tobin and their firm Kessler, Schwarz & Solomiany, P.C. (KSS) in a divorce matter after reviewing a prenuptial agreement; she paid an initial retainer and signed a one-page legal services employment agreement listing hourly rates.
- Opposing counsel made a settlement offer; the attorneys analyzed the prenup, advised Engelman on enforceability and recommended mediation/slow negotiation, but Engelman pushed to present a counteroffer and to finalize a settlement quickly because she needed funds to close on a house.
- Attorneys warned of risks and discussed potentially pursuing discovery and experts to challenge the prenup, but Engelman insisted on accepting/pushing the settlement; she executed the settlement which disclaimed usual discovery and stated she read and obtained satisfactory counsel.
- Engelman sued ~3 years later alleging legal malpractice (failure to explain prenup and review financials) and breach of fiduciary duty/fraud (challenging the retainer agreement and post-contract rate increases), claiming over $4 million in damages.
- Trial court granted summary judgment to attorneys/KSS on malpractice (applying judgmental immunity and finding Engelman’s signing an intervening, informed act) but denied summary judgment on the breach-of-fiduciary/fraud claims; discovery motions became moot as to malpractice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorneys committed legal malpractice by advising settlement without sufficient review | Engelman: attorneys failed to explain prenup and review spouse’s finances, causing poor settlement | Attorneys: advice was an exercise of informed professional judgment; client insisted and signed knowingly | Court: Grant summary judgment for defendants — judgmental immunity protects judgment calls; Engelman’s independent, informed signature was intervening cause |
| Whether expert testimony should create genuine issue on malpractice standard of care | Engelman: experts demonstrate breaches of standard of care | Defendants: plaintiff withdrew one expert and other deponents disavowed malpractice opinions | Court: Plaintiff failed to present admissible expert proof on malpractice; judgment affirmed |
| Whether the legal services employment agreement violated ethics/law (breach of fiduciary duty & fraud) | Engelman: retainer terms, rate increases, and refund language violated Georgia Rules and advisory opinions and caused damages | Defendants: agreement and billing practices were lawful and disclosed; factual disputes exist | Court: Denial of summary judgment vacated on appeal; contract-enforceability is question of law — trial court must decide without relying on expert opinion; remanded for further proceedings |
| Whether motions to compel nonparty discovery remain live | Engelman: needed nonparty discovery for malpractice claim | Defendants: — | Court: Moot because malpractice claim resolved in defendants’ favor |
Key Cases Cited
- Hart v. Sirmans, 336 Ga. App. 212 (discussing summary judgment standard)
- Hudson v. Windholz, 202 Ga. App. 882 (attorney malpractice elements and judgmental immunity)
- Mosera v. Davis, 306 Ga. App. 226 (application of judgmental immunity and malpractice proof)
- Tucker Materials (GA), Inc. v. Devito Contracting & Supply, Inc., 245 Ga. App. 309 (contract construction is question of law)
- Precision Planning Inc. v. Richmark Communities Inc., 298 Ga. App. 78 (contract construction and enforceability as question of law)
- Brandon v. Newman, 243 Ga. App. 183 (retainer agreement/public policy question of law)
- Dow Chemical Co. v. Ogeltree, Deakins, Nash, Smoak & Stewart, 237 Ga. App. 27 (expert testimony cannot resolve pure legal questions)
- White v. Rolley, 225 Ga. App. 467 (supports application of judgmental immunity)