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Bush v. Eichholz

Court of Appeals of Georgia, Second Division

August 16, 2019

BUSH
v.
EICHHOLZ et al.

          MILLER, P. J., RICKMAN and REESE, JJ.

          MILLER, PRESIDING JUDGE.

         Reginald Bush filed a civil action against The Eichholz Law Firm, P.C. ("the Eichholz firm") and David Eichholz, alleging legal malpractice and fraud. Bush now appeals from the trial court's grant of summary judgment to the appellees. Having reviewed the record, we determine that the trial court properly granted summary judgment because Bush's termination of the appellees severed any potential liability for legal malpractice and Bush's fraud claim fails as a matter of law. We therefore affirm.

         "Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant." (Citation omitted.) Williams v. City of Atlanta, 342 Ga.App. 470 (803 S.E.2d 614) (2017).

         So viewed, the record shows that Bush is a longshoreman by profession, and on May 22, 2014, he was operating a chassis truck at a terminal owned by the Georgia Ports Authority. When Bush pulled the truck into the terminal bay, a group of stevedores began unlocking the pins from the truck so that the crane operator could lift the cargo container from the truck. Bush saw that the stevedores were having difficulties with one of the pins before the "flag guy" directed the crane operator to slowly pick up the container. The crane operator, a Georgia Ports Authority employee, then began lifting the container, but also picked up the truck with Bush sitting inside. The crane operator lifted the truck twice before returning it to the ground, at which point Bush fell from the truck seat and injured his back.

         In July 2014, Bush retained the Eichholz firm to represent him in a workers' compensation action and in connection with any tort claims arising from his injuries. The Eichholz firm sent a letter to the Georgia Department of Administrative Services ("the Department"), dated February 23, 2015, indicating that it had been retained to represent Bush and that the letter served as the ante litem notice required by OCGA § 50-21-26. The ante litem notice explained that a crane had lifted and dropped the truck that Bush had been driving, that Bush would seek to recover for his injuries and damages, and that a claim was being asserted in the amount of $1 million. The Department and the Georgia Ports Authority responded to Eichholz by letter, acknowledging receipt of the ante litem notice and indicating that it had investigated the incident and concluded that the crane operator was not negligent.

         After receiving this letter, the Eichholz firm sought advice from counsel in deciding whether it would litigate Bush's tort claim against the Georgia Ports Authority. A case manager and paralegal at the Eichholz firm averred that in August 2015, she spoke with Bush via telephone, as directed by Eichholz, "and explained to him that [the Eichholz law firm] and Mr. Eichholz would no longer represent [him] in connection with his prospective personal injury claim against the [Georgia Ports Authority]." She also averred that she explained to Bush that the personal injury claim may be subject to a time limitation, and that he should consult another attorney as soon as possible regarding representation if he wished to pursue the claim. She then sent a letter to Bush by certified mail, dated August 25, 2015, indicating that the Eichholz firm was still representing him in his workers' compensation action, but not with regard to his "date of loss." Bush, however, averred that he neither signed for nor received this letter, and he also testified that he did not recall having the above-mentioned telephone conversation.

         Ultimately, Bush grew "[d]issatisfied with Eichholz," and, in either late August or early September 2015, consulted with another firm, Schneider Hammers, LLC, concerning his claims. An attorney with Schneider Hammers averred that when Bush contacted the firm, he asked for assistance with a workers' compensation action and a tort claim against the Georgia Ports Authority. Schneider Hammers sent Bush a "new client package" containing two retainer agreements, one of which was a personal injury retainer agreement for the tort claim. Bush signed the personal injury retainer agreement and returned it to the Schneider Hammers office. Bush's wife also sought and received a disk from the Eichholz firm containing "everything in [Bush's] file."

         Bush testified that Schneider Hammers "wanted to go over the documents to see what Eichholz had" but his wife had misplaced the disk from the Eichholz firm, and neither he nor his wife contacted the Eichholz firm for a replacement disc because he was "fed up with it. . . ."[1] Schneider Hammers reviewed the documents that Bush had sent to the office, assumed that the documents comprised Bush's case file, and when they did not see an ante litem notice, the firm concluded that one had not been sent. Thus, Schneider Hammers elected not to pursue the tort claim against the Georgia Ports Authority, and when Bush consulted with another attorney in 2016, he learned that the statute of limitations had expired.

         Bush filed suit against Eichholz and the Eichholz firm, stating that he "discharged the [d]efendants effective August[] 2015," but simultaneously alleging that they had committed legal malpractice and fraud. Bush claimed that the appellees had sent a deficient ante litem notice, and as a result of the appellees' negligence in representing him, he no longer had a viable claim against the Georgia Ports Authority. Bush also claimed that the appellees "run a settlement mill fueled by television and billboard advertising[, ]" that their advertising was false and misleading, and that he relied on the advertisements when he retained the Eichholz firm to aggressively pursue his tort claim against the Georgia Ports Authority.

         The appellees filed a motion for summary judgment, and, after a hearing, the trial court granted the motion and denied Bush's motion for reconsideration. The trial court determined that the ante litem notice that the Eichholz firm sent was not legally deficient, that Bush had stated that he discharged the appellees in August 2015, and that Bush hired a new law firm to represent him on his tort claim approximately nine months prior to the expiration of the limitation period. The trial court also found that the appellees had not committed any fraud so as to injure Bush. Bush then appealed.

         1. Bush contends that the trial court erred in ruling that the ante litem notice was not deficient and argues that the appellees' failure to timely serve a compliant ante litem notice caused him to forfeit his tort claim against the Georgia Ports Authority. The trial court correctly found that the ante litem notice was not deficient.

         "OCGA § 50-21-26 (a) specifies a detailed procedure for notifying the state of a claim before filing a lawsuit against it." (Citation omitted.) Perdue v. Athens Technical College, 283 Ga.App. 404 (641 S.E.2d 631) (2007). "Subsection (a) (5) sets out the information which the notice of claim shall state, to the extent of the claimant's knowledge and belief and as may be practicable under the circumstances." (Citation and punctuation omitted.) Id. at 405. Specifically, the notice must state:

(A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss. The purpose of these requirements is to ensure that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.

(Citation and punctuation omitted.) Id. "It is well established that strict compliance with the notice provisions is a prerequisite to filing suit under the [Georgia Tort Claims Act ("GTCA")], and substantial compliance therewith is insufficient." (Citation omitted.) Ga. Dept. of Transp. v. Griggs, 322 Ga.App. 519, 520 (745 S.E.2d 749) (2013).

But in requiring that notice be to the extent of the claimant's knowledge and belief and as may be practicable under the circumstances, the Act's ante litem notice provisions clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of [his] claim at the time the notice is submitted.

(Citation and punctuation omitted.) Id. at 521.

         a. First, Bush unpersuasively contends that the ante litem notice did not inform the State of the nature of his injuries. In Bush's view, the appellees merely asserted that he suffered "severe injuries in a crane incident," which was insufficient.

         As explained above, the ante litem notice must state the "nature of the loss suffered." OCGA § 50-21-26 (a) (5) (D). For purposes of the GTCA, the term "loss" means "personal injury; disease; . . . lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of ...


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