GSB Vol. 11, No. 1 - #2. Barnes v. Turner: An E-Turner-ty of Liability for Lawyers?.

AuthorBy J. Randolph Evans and Charles R. Adams Jr.

Georgia Bar Journal

Volume 11.

GSB Vol. 11, No. 1 - #2.

Barnes v. Turner: An E-Turner-ty of Liability for Lawyers?

Georgia State Bar JournalVol. 11, No. 1, August 2005"Barnes v. Turner: "An E-Turner-ty" of Liability for Lawyers?"By J. Randolph Evans and Charles R. Adams Jr.Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost . . . . They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the [a]voidable and unavoidable delay.1

What do the following scenarios have in common? In 1994, Lawyer A obtains a judgment in favor of his Client B. The judgment is duly recorded on the general execution docket, but at the time of recording, the defendant has no assets to satisfy the claim. Seven years pass, the fi.fa. is never renewed, and the judgment becomes dormant and loses priority. 2 In 2003, the original defendant comes into an inheritance that would be substantial enough to satisfy the judgment in favor of B, but not when all of the defendant's other creditors who have acquired subsequent priority have intervened. In 1990, Lawyer C writes a will for Client D, setting up a testamentary scheme in favor of D's children. D is unmarried at the time, and C fails to advise him that remarriage will revoke his will. D subsequently remarries in 2001. Thereafter, D dies, and his children discover that, because of his remarriage, the 1990 will is invalid and D's testamentary scheme is frustrated.3 What these two scenarios, as well as numerous others, have in common is that, despite the apparent expiration of the usual four-year statute of limitations that applies in legal malpractice cases,4 the attorneys in both cases could now potentially be subject to liability because of the Supreme Court of Georgia's recent four-to-three ruling in Barnes v. Turner.5


The facts in Barnes v. Turner are relatively simple. Plaintiff (the client) retained defendant (the attorney) to represent him in the sale of his company. At the closing on Oct. 1, 1996, the purchasers executed a 10-year promissory note that was secured by a lien. On Oct. 30, 1996, the security interest was perfected by the filing of UCC financing statements. Importantly, the attorney did not inform the seller- client that the financing statements were only effective for five years, although they could be renewed. No renewal statements were filed, and on Oct. 30, 2001, the original financing statements expired. Prior to expiration, but before the time for renewal, other creditors filed UCC financing statements, which upon the expiration of the client's financing statements became senior secured positions. On Oct. 18, 2002, the client filed an action against the attorney for legal malpractice. Although the client brought his case more than four years after the closing, the trial court and the Georgia Court of Appeals held that the applicable four-year statute of limitations barred the action.6 The Supreme Court of Georgia reversed. The court held that by failing to inform the client of the renewal requirement, the attorney "undertook a duty to renew the security interest himself."7 Significantly, in reaching its result, the court conceded that if the statute of limitations were measured from the closing date, it would have expired. However, to reach its result, the court adopted a separate, or springing, duty theory, under which the failure of the attorney to perform one duty to the client (to inform of the renewal requirement) triggered a separate duty for the attorney (to renew the financing statement himself). According to the court, this separate duty was then breached by the attorney's failing to renew the financing statement himself, and the statute of limitations began running from that point. The premise for the court's analysis was a determination, citing precedent from...

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