Calhoun v. Tapley ( 1990 )

Cooper, Judge,

dissenting.

The majority concludes that there was a genuine issue of fact as to whether an attorney-client relationship existed between appellant and appellee. I dissent because I am of the opinion that the evidence did not create a factual issue about the existence of an attorney-client relationship.

It is undisputed that appellee made repeated assurances to appellant that he was handling the matter concerning the insurance proceeds and that because of these repeated assurances, appellant believed that appellee represented her. However, “[a]n attorney-client relationship cannot be created unilaterally in the mind of a would-be client; a reasonable belief is required.” Guillebeau v. Jenkins, 182 Ga. App. 225, 231 (2) (355 SE2d 453) (1987). Appellant may have had a reasonable belief that appellee was handling the matter, but I cannot conclude that appellant’s belief was reasonable that appellee was representing her as an attorney. Appellant, because she was not a loss payee under the policy, had no independent right of action against the insurance company (Wilson Marine Sales &c. v. Fireman’s Fund Ins. Co., 133 Ga. App. 220 (1) (211 SE2d 145) (1974)), and her only recourse was to recover against Mr. Smith when he stopped making payments as required under the deed to secure debt and promissory note. Because Mr. Smith declined to honor his legal obligations under the security deed and note, appellant, 'who was in the precarious position of being ultimately liable to the bank by virtue of the wraparound transaction, clearly would have benefited by the insurance company’s payment of the proceeds to the bank. However, her indirect benefit from the payment of the proceeds does not give her a cause of action against the insurance company. See Insured LLoyds v. Bobo, 116 Ga. App. 89, 90 (156 SE2d 518) (1967). While I acknowledge appellant’s predicament, I cannot conclude, as the majority does, that the evidence raises questions of fact about whether an attorney-client relationship was formed. Therefore, I respectfully dissent.

I am authorized to state that Presiding Judge Deen joins in this dissent.