A Georgia appellate court has held that the statute of limitations in a legal malpractice action was not tolled by an attorney’s alleged fraud. Marsha Doyal brought the case against her former attorney Vincent Sowerby and his law firm. The legal malpractice case stemmed from a domestic proceeding in February 2005 in which Sowerby represented Doyal.
In the domestic case, a contempt order was issued and Sowerby attempted to appeal the order on behalf of Doyal. However, Sowerby failed to follow proper procedures in filing the appeal. Consequently, the Supreme Court of Georgia dismissed the appeal. Four days later, Sowerby sent a letter to Doyal which provided her with the contact information of his professional liability insurer and an explanation of her rights to sue him for legal malpractice. Sowerby also explained that the statute of limitations for a negligence action was 2 years and for a breach of contract claim 4 years. However, he incorrectly informed her that the statute of limitations began to run on the date that her appeal had been dismissed.
The appellate court found that the date on which the statute of limitations began to run was the day Sowerby committed the malpractice, or the last day when he could have filed for review of the contempt order. Doyal did speak with Sowerby’s insurance carrier several times and hired her own counsel to pursue her malpractice claim. Her counsel sent a demand letter to Sowerby, but subsequently withdrew from representing Doyal and she was unable to find a replacement attorney.
Doyal then filed a timely pro se complaint. However, the lower court dismissed the case because she had failed to attach to her complaint an expert affidavit, as required under Georgia law. Doyal re-filed, but only after the statute had run. The dismissed the new complaint, rejecting her argument that the statute should have been tolled due to Soerby’s “fraudulent” leter to her.
The Court ruled that tolling only took place under the statute based on a finding that the fraud stopped a client from filing an action, and in this case, there was no such showing. The court reasoned that Doyal became aware of her claim prior to the running of the statute, and was clearly not discouraged by Sowerby’s alleged fraud because she had hired her own counsel and eventually brought an action within the statute of limitations.