Whitehead v. Cuffie , 185 Ga. App. 351 ( 1987 )

Sognier, Judge.

Hazel Whitehead, Lucinda Amos, and William LeFlore brought a legal malpractice action against their former attorney, Thomas Cuffie. Upon LeFlore’s death, Horace Ward, as executor of the estate, was substituted as party plaintiff. Summary judgment in favor of Cuffie was granted by the trial court in two separate orders. This opinion consolidates both appeals.

After a fire caused by the negligence of Atlas Turnkey Company damaged the homes of the three original plaintiffs in April 1982, they engaged appellee to present their claims to the tortfeasor’s insurance carrier. Although the evidence is controverted as to what representations were made by appellee or what settlement matters were handled by appellee, it is uncontroverted that as of January 1986, when appellants discharged appellee, no agreement had been reached with the tortfeasor’s insurance carrier in regard to appellants’ losses. The attorney subsequently engaged by appellants settled their losses within weeks before the expiration of the applicable statute of limitations period for sums within the tortfeasor’s policy limits. Appellants then brought suit against appellee alleging that because of his wilful and intentional conduct, they were damaged by the delay they experienced in the receipt of settlement sums for their losses, that they suffered mental and emotional stress due to appellee’s neglect of their affairs and that they were forced to accept a lesser settlement sum to avoid litigation costs. Appellant LeFlore additionally asserted that he was damaged by appellee’s failure to pursue a claim against LeFlore’s own insurance company. All appellants sought actual and punitive damages based on the bad faith and wilfulness of appellee.

1. We agree with appellants that to say the least, a question of fact exists whether the general release they signed in favor of the tortfeasor’s insurance carrier discharged appellee as well. Posey v. Medical Center-West, 257 Ga. 55 (354 SE2d 417) (1987).

2. Appellants contend the trial court erred by granting summary judgment to appellee on the alternate ground that appellants sustained no damages proximately flowing from appellee’s conduct. We disagree with appellants that the delay in their receipt of settlement sums from the tortfeasor’s insurance carriers (or, in appellant LeFlore’s case, the failure to receive any sums from his own insurance carrier) constituted damages to them. Although this court has recognized damages for “loss of use of money,” Leon Jones Feed &c. v. Gen. Business Svcs., 175 Ga. App. 569, 570 (333 SE2d 861) (1985), that case involved money originally held by plaintiff who lost the use of that money by unnecessarily paying it out on the incorrect advice of defendant. In the case sub judice, there is no evidence indicating that the insurance carriers would have produced settlement sums at an earlier time had appellee pursued appellants’ claims to their satisfaction. In view of the complete absence of such evidence, a claim that appellants “lost the use” of their personal funds by repairing their damaged properties prior to the receipt of the settlement sums must fail.

We find speculative and conjectural appellants’ claims for damages based on their feelings that they were pressured into a hasty settlement of their claims. The record reflects an absence of any evidence other than appellants’ “feelings” to show an earlier settlement would have resulted in a larger settlement sum. The evidence is thus uncontroverted that in this regard, appellants suffered no loss when they voluntarily settled with the tortfeasor’s insurance carrier within the policy limits prior to the expiration of the statute of limitations.

“A professional malpractice action is merely a professional negligence action . . . .” Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (354 SE2d 872) (1987). “To state a cause of action for negligence in Georgia, the following elements are essential: ‘(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ [Cit.]” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). In particular, this court has held that in a suit for legal malpractice, proof that the attorney’s negligence proximately caused the client’s harm is necessary for recovery. Rogers v. Norvell, 174 Ga. App. 453, 457 (2) (330 SE2d 392) (1985); Parten v. Swan, 183 Ga. App. 364, 365 (358 SE2d 906) (1987). We do not agree with appellants that a cause of action for legal malpractice can be maintained where there is no evidence that the breach of the professional duty proximately caused any harm to the client. Id. Nor do we agree with appellants that Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 806 (1) (273 SE2d 16) (1980) and Spence v. Hilliard, 181 Ga. App. 767 (353 SE2d 634) (1987) support their argument. It is well-established Georgia law that before an action for a tort will lie, the plaintiff must show he sustained injury or damage as a result of the negligent act or omission to act in some duty owed to him. OCGA § 51-1-8; Black v. New Holland Baptist Church, 122 Ga. App. 606, 609 (2) (178 SE2d 571) (1970); Clements v. Hendi, 182 Ga. App. 118, 119 (2) (354 SE2d 700) (1987). Although nominal damages can be awarded where there has been an injury but the injury is small, OCGA § 51-12-4, where there is no evidence of injury accompanying the tort, an essential element of the tort is lacking, thereby entitling the defendant to judgment in his favor. See Meeks v. Coan, 165 Ga. App. 731, 733-734 (2) (302 SE2d 418) (1983). We do not read Jankowski, supra, as eliminating from a cause of action for malpractice the necessity that the breach of the professional’s duty to conform to a certain standard of conduct gives rise, by means of a legally attributable causal connection, to a resulting injury, loss or damage flowing to the plaintiff’s legally protected interest. See generally Bradley Center, supra. Rather, Jankowski recognizes that where a valid cause of action for malpractice exists, with all elements for such an action present, then the statute of limitations for such a cause of action arises as of the time of the breach of the duty because nominal damages “may be recovered” at that time. Jankowski, supra at 806 (1). It stands to reason that if there is no harm resulting from the breach of duty, then no cause of action exists to be the subject of a lawsuit and questions regarding the statute of limitations are rendered moot thereby. Thus, we find no conflict between Jankowski and the line of cases following it, see Spence, supra, and the line of cases following Rogers, supra, see Parten, supra.

This discussion is not dispositive of the issue, however, since appellants also allege appellee wilfully and intentionally acted to mislead and deceive them, which acts caused appellants mental and emotional stress. To state a cause of action for emotional distress in the absence of physical injury, no actual damages need be shown where wilful, wanton, voluntary or intentional misconduct is alleged. Hamilton v. Powell, Goldstein, Frazer &c., 252 Ga. 149, 150 (311 SE2d 818) (1984). The record in this case presents conflicting evidence whether appellee’s conduct regarding appellants’ affairs was the unintentional result of partner and business address changes, as asserted by appellee, or the result of wilful disregard for appellants’ affairs.

Thus, insofar as the allegations regarding appellee’s intentional misconduct are concerned, questions of fact remain for jury determination and the trial court erred by granting summary judgment in favor of appellee on this matter.

Judgments affirmed in part and reversed in part.

Birdsong, C. J., Banke, P. J., Carley, and Benham, JJ., concur. Deen, P. J., McMurray, P. J., Pope, and Beasley, JJ., dissent.