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Timely Or Not?

By Michael Frisch

The Georgia Supreme Court remanded a dismissed legal malpractice claim to determine the applicable statute of limitations

After a bankruptcy proceeding went awry, the plaintiffs in this case filed suit against lawyers and law firms who had advised them to file for bankruptcy. The plaintiffs asserted tort claims for legal malpractice and claims for breach of written contracts for legal services, alleging, among other things, that the lawyers committed legal malpractice in executing their duties under the contracts. The defendants moved to dismiss both sets of claims as barred by OCGA § 9-3-25’s four-year statute of limitation. And although the trial court only granted those motions as to the tort-based legal-malpractice claims, it later granted a summary-judgment motion filed by a subset of the defendants on the ground that the breach-of contract-for-legal-services claim against those defendants was also barred by OCGA § 9-3-25. On appeal, the Court of Appeals likewise concluded that the tort-based legal-malpractice claims were barred by OCGA § 9-3-25’s statute of limitation. See Titshaw v. Geer, 368 Ga. App. 266, 268-269 (1) (888 SE2d 301) (2023). And the Court of Appeals further concluded that the breach-of-contract-for-legal services claims were due to be dismissed as “duplicative” because they were based on the same conduct underlying the tort-based legal-malpractice claims. See id. at 269-270 (2), (4).

We granted certiorari to address which statute of limitation applies to a claim for breach of a contract for legal services — OCGA § 9-3-24’s six-year statute of limitation for “actions upon simple contracts in writing” or OCGA § 9-3-25’s four-year statute of limitation for “actions . . . for the breach of any contract not under the hand of the party sought to be charged, or upon any implied promise or undertaking.” And we further granted certiorari to determine whether the Court of Appeals erred in concluding that a claim for breach of a contract for legal services should be dismissed if it is based on the same conduct underlying a tort-based legal-malpractice claim that the court has concluded is barred by the statute of limitation.

As explained below, we conclude that a breach-of-contract-for-legal-services claim can be governed by either OCGA § 9 3-24’s six year statute of limitation or OCGA § 9-3-25’s four-year statute of limitation, and that which statute of limitation applies must be determined under the framework set out in Newell Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc., 288 Ga. 236 (703 SE2d 323) (2010). We further hold that, in Division 4 of its opinion, the Court of Appeals erred in concluding that a claim for breach-of-contract-for-legal-services was due to be dismissed as “duplicative” of a legal-malpractice claim that it had concluded was barred by OCGA § 9-3-25’s statute of limitation. Titshaw, 368 Ga. App. at 270 (4). As explained below, the Court of Appeals erred in failing to apply the well-established motion-to-dismiss standard to determine whether, under Newell Recycling’s framework, it was possible for the plaintiffs to prove that OCGA § 9-3-24’s six-year statute of limitation applied to the breach-of-contract-for-legal-services claim. Accordingly, we vacate the Court of Appeals’ judgment, and we remand for further proceedings consistent with this opinion.

(Mike Frisch)