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Burds v. Hipes

Court of Appeals of Georgia

September 23, 2014

BURDS
v.
HIPES et al

Fraud, etc. Fulton Superior Court. Before Judge Lee.

Matthew G. Gebhardt, for appellant.

Hawkins Parnell Thackston & Young, Kim M. Jackson, Bryan M. Grantham, for appellees.

Boggs and Branch, JJ., concur.

OPINION

Page 888

Barnes, Presiding Judge.

Christopher Burds sued his former attorney, Jeanne Bynum Hipes, individually and doing business as Hipes Law LLC, claiming that Hipes fraudulently induced him to enter into a legal services contract with her and that she breached her fiduciary duty to him by misleading him about his case. Burds also sought punitive damages under OCGA § 51-12-5.1. Hipes answered and counterclaimed for $6,427 in unpaid legal fees, plus interest and the costs and expenses incurred in collecting the fees, per their contract. Both parties moved for summary judgment. After a hearing, the trial court denied Burds' motion and granted Hipes' motion for summary judgment. Burds appeals, and for the reasons that follow, we affirm.

Summary judgment is proper " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). To obtain summary judgment, the moving party must demonstrate that he or she is entitled to [329 Ga.App. 113] judgment as a matter of law because no genuine issue of material fact exists for a jury to determine. Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 S.E.2d 779) (2010).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Id. at 624 (1) (a).

Both parties submitted affidavits to support their motions for summary judgment. The affidavits establish that Burds had a dispute with his former employer and consulted

Page 889

several lawyers who declined to take his case on a contingency fee basis before he retained Hipes to represent him. The essence of his claim was that his former employer had " misclassified" him as an independent contractor rather than an employee and was therefore liable to him for wages and other damages. He signed an employment contract engaging Hipes at $300 per hour " to provide legal advice and representation with respect to issues involving [Burds'] independent contractor agreement, and damages recoverable if [he could] under current law be designated an employee rather than an independent contractor." Burds was required to deposit a retainer of $2,500 and agreed to replenish the retainer as it was applied to fees incurred, with any unused balance to be refunded to him once the engagement was complete. Interest of 1.5 percent per month would be assessed on any past-due fees and Burds would be responsible for attorney fees and costs incurred in collecting any unpaid balance. The contract specified that Hipes was working toward a settlement with Burds' former employer and that if it became necessary to file suit to pursue the claim, a different engagement agreement would be required with a different retainer. Hipes was to confer with Burds via e-mail after every ten hours of completed work.

1. Burds contends that the trial court erred in granting summary judgment to Hipes on his fraudulent inducement/misrepresentation claim, which he based on two separate incidents. First, he contended that Hipes fraudulently represented to him that his misclassification claim had a potential value of $448,725 despite there being " no law or statute to support any damage estimates [Hipes] gave beyond minimum wage and overtime under Burds' factual scenario." By failing to disclose to Burds that no law supported a portion of her estimates of [329 Ga.App. 114] his possible damages, he asserts, " her valuation can be proven false and/or misleading as ...


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