These appeals arise from a legal malpractice case in which Jeffrey W. Duncan claims that lawyer Daniel M. Klein gave him erroneous advice about whether he could sue his employer for violations of federal employment discrimination laws. Klein allegedly told Duncan that such a lawsuit would not succeed, and believing as a result that he had no recourse against his employer, Duncan later resigned his employment. Duncan then enrolled in law school, where he learned that Klein might have given him bad advice, and he filed a lawsuit against his former employer, which he later settled. Notwithstanding that he eventually sued his former employer, and notwithstanding that he evidently got something out of that lawsuit, Duncan recovered less from his former employer, he says, than he would have recovered if Klein had advised him correctly and he had sued his employer more quickly. Moreover, Duncan contends that his decision to resign his employment was based on the advice he received from Klein, and as a result of his resignation, he had to enroll in law school, which caused him to incur substantial costs and to suffer an extended separation from his family. In the case below, Duncan sought to recover damages from Klein and his law firm, Greene, Buckley, Jones & McQueen, for the value of the claims that Duncan was unable to successfully assert against his former employer and for damages arising out of his enrollment in law school, as well as punitive damages and attorneys’ fees. Klein and the firm moved for summary judgment, and the court below granted that motion in part. The court determined that Duncan could not recover damages arising out of his enrollment in law school, that he could not recover damages for the value of a constructive discharge claim against his former employer, and that he could not recover punitive damages or attorneys’ fees, and the court awarded summary judgment to Klein and the firm to the extent that Duncan sought such damages. The court ruled, however, that Duncan might properly recover damages for the value of any claims against his former employer for back pay that were viable when he consulted with Klein but were barred by the time he eventually sued his former employer. Duncan appeals in Case No. A11A1061 from the award of partial summary judgment, and Klein and the law firm appeal in Case No. A11A1062 from the denial in part of their motion for summary judgment. For the reasons set out below, we see no error and affirm in both appeals.
The standard for summary judgment is settled and familiar. “To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law.” Cowart v. Widener , 287 Ga. 622, 623 1 a 697 SE2d 779 2010 citations and punctuation omitted. See also OCGA § 9-11-56 c. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial, the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. Strength v. Lovett , 311 Ga. App. 35, 39 2 714 SE2d 723 2011 citation omitted. On appeal from the grant or denial of a motion for summary judgment, we view the evidence of record in the light most favorable to the party opposing the motion, and we review the decision to grant or deny the motion de novo. Cowart , 287 Ga. at 624 1 a.
