Christopher Oehlerich appeals from the trial court’s grant of David Llewellyn’s and Salvatore Serio’s motion for summary judgment on Oehlerich’s claims of legal malpractice. Because the trial court correctly held that Oehlerich failed to show that any alleged malpractice proximately caused his damages, we affirm.
This case arose after Oehlerich was injured on the job at a construction site. Oehlerich was installing HVAC equipment at a house under construction when he fell through an unguarded opening in the foyer. Oehlerich hired Serio to pursue a workers’ compensation claim and also hired Llewellyn to represent him in a potential personal injury claim, signing a contract of employment with both lawyers on November 8, 1999. In April 2000, Oehlerich met with Llewellyn and Serio and was told that Llewellyn had determined that the personal injury claim was not viable. Llewellyn told Oehlerich that because the foyer opening was an open and obvious danger, Oehlerich had equal knowledge of the hazard. Also, because there would be evidence that Oehlerich fell while reaching for a hammer, he would be deemed to have assumed the risk of injury.
On August 22, 2001, Oehlerich terminated Serio from the workers’ compensation claim representation, and on August 31, 2001, Oehlerich hired new counsel to pursue the personal injury claim. Before the running of the statute of limitation, new counsel filed a claim for personal injury against Angel Patron, the subcontractor responsible for building framing for the work site. 1 The case was subsequently dismissed without prejudice on June 28, 2004, because Oehlerich was unable to serve Patron.
Llewellyn and Serio filed a motion for summary judgment, arguing among others, that because Oehlerich was able to file suit before the running of the statute of limitation, he could not show that any alleged negligence was the proximate cause of his damages. The trial court agreed, holding that there was nothing in the record to show when Patron left the jurisdiction. Therefore, it was a matter of speculation as to whether any delay in filing suit affected the opportunity to serve Patron. This appeal followed.
A defendant is entitled to summary judgment if he can show that the evidence is not sufficient to create a jury issue on at least one essential element of plaintiff’s case.
Lau’s Corp. v. Haskins,
1. Here, Oehlerich cannot show that he would have been able to serve Patron had the suit been filed earlier, because there is no evidence when Patron left the jurisdiction. The only evidence of Patron’s presence is that supplied by the process server hired to find Patron on August 31, 2001. Ward, the process server, stated that the only information on Patron was that he was a patient at DeKalb Medical Center in November 2000. Patron appeared to have no credit history, no source of identity, and did not live at either of the addresses given to the process server.
Oehlerich relies on language in Ward’s affidavit which states that, in his experience, when attempting to serve a party years after the incident, addresses become stale, friends and relatives cannot be located, and public information is no longer current. And, “[i]n this case, had I received resident addresses, a social security number, and other information within months of the date of the incident, it is more likely than not that Mr. Patron would have been located and served with Summons.”
But, there is nothing in the affidavit showing that Ward had any personal knowledge of when or even if, Patron had left the area. “Affidavits supporting and opposing summary judgment must be made on personal knowledge and must set forth such facts as would be admissible in the evidence.” (Punctuation omitted.)
Garner v. Rite Aid of Ga.,
Therefore, the trial court correctly concluded that plaintiff could not establish an essential element of his legal malpractice claim. Accordingly, the trial court’s grant of summary judgment to Llewellyn and Serio was not error. See
Houston v. Surrett,
2. Oehlerich also argues that the trial court erred in holding that the breach of contract and breach of fiduciary duty claims were duplications of the malpractice claim. In its order, the trial court stated that the breach of contract and breach of fiduciary duty claims are based on the allegations that defendants failed to investigate fully the claims and failed to advise plaintiff properly. As such, “these allegations clearly call into question the degree of professional skill exercised,” and therefore are duplications of the legal malpractice claim.
We agree. Oehlerich’s claim for legal malpractice is based on the establishment of a fiduciary attorney-client relationship that he claims was breached. His claims for breach of fiduciary duty, breach of contract, and breach of the implied duty of good faith and fair dealing are simply duplications of this legal malpractice claim. See
McMann v. Mockler,
Likewise, Oehlerich cites to
Smith v. Morris, Manning & Martin,
Judgment affirmed.
Notes
Although there is evidence to the contrary, Oehlerich contends that Patron was the person responsible for installing guardrails at the work site.