Legal malpractice. The appellant Riddle seeks the reversal of a grant of summary judgment to attorney Driebe based upon the running of the statute of limitation. The rather convoluted facts of this case show that Executive Equities, Inc. unsuccessfully attempted to borrow $2,000,000 in order to purchase land. Appellant Riddle, becoming aware of the difficulty, prevailed upon Georgia International Corp. to act as guarantor for such a loan and Executive Equities was enabled to obtain the loan. As compensation to Riddle for his services, the president of Executive Equities orally agreed to pay Riddle a 10% real estate commission when and if the property was sold. A sale of the property would have provided Riddle with a commission of slightly in excess of
In 1972 or 1973, the property sold. Riddle became aware of the discrepancy in the amount of commission and on or before October 5, 1973, sought the services of an attorney other than Driebe to assist him (Riddle) in collecting his 10% sales commission. This attorney communicated with Executive Equities and, referring to the sales agency agreement, indicated that Riddle would insist upon his 10% commission. After some negotiation, on October 10, 1973, the attorney for Executive Equities took the position that the $100,000 commission provided in the purchase option agreement took precedence over the 10% provision in the exclusive sales agency agreement and indicated, in effect, that if Riddle insisted upon the 10% figure, no commission would be paid until the discrepancy was resolved by litigation. Upon advice of counsel, on October 1,1974, Riddle accepted the $100,000 and executed a full release to Executive Equities. Riddle offered evidence by deposition that Driebe had continued to insist in early 1974, a period of several months after the dispute arose with Executive Equities’ attorney as to which of the two agreements was enforceable that the exclusive sales agency agreement was a valid and enforceable document. It is these protestations by Driebe that Riddle contends amounted to fraud on the part of Driebe and tolled the statute of limitation. Riddle filed the present complaint on October 20, 1977, over 5-1/2 years after the last document was prepared by Driebe, over four years after Riddle made demand for the 10% commission and was told that such payment would not be made because of the precedence of the purchase option
In Georgia legal malpractice is based upon the breach of a duty imposed by the attorney-client contract of employment, and as such, the applicable statute of limitation is four years. Code Ann. § 3-706;
Gould v. Palmer,
Appellant Riddle attempts to avoid the consequences of the late filing by arguing first that he did not discover the impropriety of the documents until October, 1974, when the settlement on the $100,000 commission occurred. However, it is undisputed that Riddle was informed by letter dated October 12, 1973, that his claim for the 10% commission was disputed because of the signed purchase option agreement that he would accept $100,000 as his commission. At no time did Riddle bring suit against Executive Equities to attempt to establish the validity of the sales agency agreement, which well he might have done considering the apparent original desire of the president of Executive Equities that the sales agency agreement rather than the purchase option agreement express the true intent of the parties. At best Riddle can argue that there was an unresolved question
Nevertheless, in his second ground of attack, Riddle avers that Driebe’s continuing promises that the sales agency agreement was valid amounted to knowingly fraudulent statements and that these statements deterred Riddle from becoming aware that the sales agency agreements were legally defective and deterred him from bringing suit. This assertion is made in the face of the fact that Driebe no longer represented Riddle, and at a time when Riddle was following the advice of another attorney. If Riddle is speaking of being deterred from bringing suit against Executive Equities, the assertion is meaningless for Riddle never brought suit against Executive Equities nor attempted to do so. If Riddle is arguing that he was deterred from bringing suit against Driebe, his argument also lacks force. There is no assertion by Riddle that Driebe rendered any such opinions as to the validity of the sales agency agreement after early 1974. Yet Riddle did not bring his complaint against Driebe for over 3-1/2 years thereafter. Riddle does not contend that Driebe sought in any way to prevent Riddle from bringing suit either against Executive Equities or Driebe himself. At most Driebe merely contended that, in his opinion, the 1971 agreement was legally enforceable. This opinion has never been put to test.
The fraud which will relieve the bar of the statute of limitation must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action.
Anderson v. Foster,
Judgment affirmed.