Rose v. Rollins

Deen, Presiding Judge,

dissenting.

I must respectfully dissent. The record indicates that appellee attorney was an officer in the real estate company which handled the sale of appellants’ home, that he denies he ever represented the plaintiffs and claims he was employed by the real estate company as the closing attorney. The record further shows that the buyers never tendered the $3,000 cash downpayment as required by special stipulation 10. Instead, the real estate company took a secured interest in the property in lieu of a commission. In his answer to interrogatories, Rollins states that no downpayment funds were transmitted through his escrow account. The Roses contend that they were concerned from the outset of this seller-financed transaction about the ability of the purchasers to make a downpayment and had no intention of closing the sale without the required funds first being proffered by the purchasers and therefore had the cash downpayment stipulation placed in the sales contract. Thus, the downpayment was an assurance that the purchasers had the ability to complete the contract.

This set of facts constitutes a clear and palpable case of deviation from acceptable professional conduct and is sufficient to pierce the defendant’s own expert affidavit. As it is well established “[i]f a deed to real estate is signed and delivered to a depositary as an escrow, or to a special agent, with authority to deliver it to the grantee only upon a certain condition, a delivery to such grantee without the happening of such condition would not be lawful.” Anderson v. *473Goodwin, 125 Ga. 663, 664 (9) (54 SE 679) (1906); Mays v. Shields, 117 Ga. 814 (45 SE 68) (1903). If, however, the grantor learns of the delivery or ratifies the delivery, he must take prompt action to recall the deed or be estopped from disputing the rights of innocent third persons. Here there was an admission by appellants that they received the note and deed to secure debt but did not take any further action on Rollins’ advice that nothing could be done to rescind the transaction.

Expert testimony is usually required for a client or patient to overcome a presumption of proper performance and due care and to show negligence by an attorney, physician or surgeon. There is an exception to the general rule in a limited number of cases wherein negligence would appear so clear from the evidence, or well known and concerned matters which jurors would know by reason of common knowledge that expert testimony is not necessary. One example falling in the latter category involving medical malpractice is the case of Killingsworth v. Poon, 167 Ga. App. 653 (-SE2d -) (1983).

In my opinion, the case under consideration is an example of the exceptional case not requiring expert testimony in order to make it a jury question. It might well be found upon the trial of this case before a jury that the standards of care generally in the legal profession would be that obtaining $3,000 in secondary financing instead of collecting of $3,000 cash at the time of the closing from the purchasers does not constitute malpractice. On the other hand, a jury might find that a purchaser who could not come up with the downpayment would seriously jeopardize the sellers’ position and that the attorney breached the fiduciary duty owed to the sellers when he authorized the additional financing arrangement and released the deeds from escrow. Under the majority’s view, the sellers’ property could have been conveyed to a pauper. What we cannot say is, at this stage, that as a matter of law, a clear stipulation in the sales contract may be accomplished by methods not authorized in the contract.

Accordingly, I would find a jury issue exists as to whether the attorney breached his fiduciary duty to appellants and would reverse the grant of summary judgment.