The Estate of Robert Hunter Nixon v. W. Keith Barber
340 Ga. App. 103
| Ga. Ct. App. | 2017Background
- In April 2013 W. Keith Barber represented Robert Hunter Nixon in criminal charges for selling and distributing marijuana; Barber was terminated in September 2014 and new counsel was retained. Hunter died in an automobile accident on November 7, 2014, before resolution of the criminal matter.
- In March 2015 the Estate of Hunter, Kathy Nixon, and R. Bruce Nixon (collectively, the Nixons) sued Barber for legal malpractice, alleging negligent representation caused delay, stress, mental anguish, and that Hunter could not complete college prior to his death.
- The complaint alleged Barber misrepresented potential sentence, was unprepared at sentencing, made false statements to the family, failed to present character letters, encouraged cooperation with law enforcement, had a conflict as a municipal judge, and mishandled plea negotiations. An expert affidavit accompanied the complaint as required for malpractice claims.
- Barber moved to dismiss for failure to state a claim, arguing (1) Kathy and Bruce lacked standing because they had no attorney–client relationship with Barber, and (2) the Nixons could not prove causation (including an asserted requirement to prove innocence).
- The trial court granted the motion to dismiss in a summary order; the Court of Appeals affirmed, holding Kathy and Bruce failed to plead an attorney–client relationship and therefore lacked standing; the court did not resolve the innocence/causation argument because the Nixons abandoned that enumeration on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kathy and Bruce had an attorney–client relationship with Barber | Kathy and Bruce contend Barber communicated with them, took direction from them, and was paid by them, so an attorney–client relationship existed (express or implied) | Barber argues all communications were in the course of representing Hunter; no undertaking or promise to represent the parents; thus no attorney–client relationship or duty to them | Held: Kathy and Bruce failed to plead an attorney–client relationship or reasonable belief of representation; they lack standing and their claims were dismissed |
| Whether an attorney–client relationship may be implied from conduct/payment | Nixons assert payment of fees, communications, strategy discussions, and firing of Barber establish implied representation of parents | Barber counters that fee payment and parental involvement do not create an attorney–client relationship where representation was solely for Hunter | Held: While payment and conduct can be relevant, the complaint shows communications related solely to Hunter’s defense; no specific undertaking to represent parents — no implied relationship |
| Whether the Estate can proceed given causation/innocence issues | Estate alleges Barber’s negligence caused harms to family and Estate and that expert affidavit supports malpractice; contends causation is adequately pleaded | Barber argued plaintiffs must prove factual or legal innocence (or post-conviction relief) to maintain a criminal-malpractice claim; also argued causation insufficient | Held: Court did not decide the innocence/causation issue on appeal because the Estate abandoned that enumeration by failing to cite authority; dismissal as to parents affirmed on standing grounds |
| Whether dismissal was proper on motion to dismiss standard | Nixons argued pleadings put Barber on notice and could support relief if evidence were introduced | Barber argued complaint could not possibly establish key elements (duty/causation) even if facts alleged were true | Held: Under the motion-to-dismiss standard, the parents’ complaint could not, as pleaded, establish duty via attorney–client relationship; dismissal affirmed as to Kathy and Bruce; other issues not resolved on appeal |
Key Cases Cited
- Cleveland v. MidFirst Bank, 335 Ga. App. 465 (motion-to-dismiss standard; pleadings construed favorably to plaintiff)
- Carmichael v. Barham, Bennett, Miller & Stone, 187 Ga. App. 494 (attorney–client relationship required for malpractice; payment alone insufficient)
- Oswell v. Nixon, 275 Ga. App. 205 (legal-malpractice plaintiff must allege lawyer–client relationship)
- Bobick v. Cmty. & S. Bank, 321 Ga. App. 855 (affirming dismissal under right-for-any-reason doctrine)
- Ga. Insurers Insolvency Pool v. Hulsey Envir. Servs., Inc., 293 Ga. 504 (standing is prerequisite to subject-matter jurisdiction)