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Nugent v. Myles

Court of Appeals of Georgia, Fourth Division

June 13, 2019

NUGENT et al.
v.
MYLES. WARREN
v.
MYLES.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Markle, Judge.

         These appeals proceed from the trial court's orders on opposing motions for partial summary judgment in an action for legal malpractice and other torts. Alexandra Myles sued Kenneth S. Nugent, Kenneth S. Nugent, P. C., and Nugent Law Firm, LLC (collectively, "Nugent"), along with her attorney, Christopher Warren, [1] for allegedly failing to litigate, and ultimately settling without her consent, her claims arising from an automobile collision with a City of Smithville ("City") employee. In Case No. A19A0162, Nugent appeals the trial court's denial of its motion for partial summary judgment on the issue of the legality of the engagement contract between Kenneth S. Nugent, P. C. ("Nugent, P. C.") and Myles; and the grant of Myles's motion for partial summary judgment, finding that Myles's underlying personal injury claims against the City were settled in full. In Case No. A19A0871, Warren appeals the trial court's order as to the settlement issue only. We consolidated the cases for our review. Finding no error in Case No. A19A0162, we affirm. We likewise affirm the trial court's order in Case No. A19A0871.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Grizzle v. Norsworthy, 292 Ga.App. 303, 303-304 (664 S.E.2d 296) (2008).

         So viewed, the record reflects that, in January 2011, Myles was injured in a vehicle collision with a City employee. Days later, Myles retained Nugent, P. C. to litigate her claims arising from the collision, and signed an engagement contract. The firm assigned one of its attorneys, Warren, to represent Myles.

         In March 2011, Warren sent an ante litem notice to the City, as required by OCGA § 36-33-5. In December 2011, Warren sent the City's insurance adjuster a demand letter, indicating that Myles's total medical expenses were $10, 327.76. Warren and the adjuster negotiated a potential settlement throughout the latter half of 2012, and, in January 2013, the adjuster made an offer in the amount of $10, 000.

         In March 2013, Warren met with Myles to discuss the pending offer, which Myles expressly rejected. During this meeting, Warren realized that he made a mistake and had not filed a complaint before the two-year statute of limitations had run.[2] Warren advised Myles that there had been a mistake and ended the meeting. Warren then notified Kenneth Nugent of his error.

         Despite Myles's refusal to settle, and without her permission, a week later, Warren accepted an offer in the amount of Myles's medical expenses, $10, 327.76. Warren asked the adjuster to issue the check immediately, which she did, along with a release of the claims for Myles to sign and return. The check indicated that it was for "full and final settlement of all bodily injury claims," whereas the release covered all claims arising from the accident, including personal injury and property damage. Unaware that Warren had accepted the settlement, Myles hired new counsel and terminated Warren and Nugent's representation on March 29, 2013. However, in June 2013, Nugent P. C. deposited the check into its escrow account. It is undisputed that Myles did not endorse the check, but that someone at Nugent P. C. signed her name to it. The release was never signed.

         Myles sued Nugent and Warren, bringing fifteen claims against them, including legal malpractice, Georgia RICO Act violations, conspiracy, conversion, forgery, fraud and breach of fiduciary duty.[3] Viewed in its entirety, the complaint, as amended, attacks Nugent's business model, including its advertising practices and, as Myles repeatedly characterizes it, the "illegal" engagement contract.

         In response to this description of the engagement contract, Nugent moved for partial summary judgment, seeking a determination that the engagement contract was legal. Myles moved for partial summary judgment, seeking a ruling that Warren had settled and released her claims against the City and its employee. Following a hearing, the trial court denied partial summary judgment to Nugent, and granted partial summary judgment to Myles on the ground that Warren had settled Myles's case. These appeals followed.

         Case No. A19A0162

         1. Nugent argues that the trial court erred when it denied Nugent's motion for partial summary judgment on the ground that it was not a proper vehicle to decide whether ...


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