Graivier v. Dreger & McClelland

A jury question remained as to whether defendant attorney exercised ordinary care in preparing an LLC operating agreement for the first plaintiff and another doctor, who partnered to manage a surgical center, since the language of the LLC agreement failed to express the parties' intent that the only profits shared would be those generated by third-party users of the facility.

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Dr. Miles Graivier, Kathy Graivier, and Dr. Graivier’s medical corporation, North Atlanta Plastic Reconstructive Surgery, P.C., “NAPRS” collectively, “the appellants” sued attorney Richard Dreger and his law firm, Dreger & McClelland, for professional negligence, breach of fiduciary duty, and breach of an attorney employment contract. Dreger and his firm moved for summary judgment on all claims, and the trial court granted the motion. The Graiviers and NAPRS appeal the trial court’s ruling. For reasons that follow, we affirm in part and reverse in part. Summary judgment is appropriate when the evidence, viewed favorably to the non-movant, demonstrates that no genuine issues of material fact remain and that the moving party is entitled to judgment as a matter of law.1 Construed in this manner, the record shows that Dr. Graivier, a plastic surgeon, is the sole shareholder of NAPRS, which provides cosmetic and reconstructive surgical services. In approximately 1995 or 1996, Dr. Graivier contemplated establishing his own surgical facility, and he spoke with Dr. Dale Duncan, an oral surgeon, about partnering in the facility. Dr. Duncan agreed, and the doctors decided to establish a limited liability corporation to manage the surgical center. Dr. Duncan suggested that they hire Dreger, whom he knew through the Rotary Club, to set up the corporation.

In the spring of 1997, the doctors met with Dreger to discuss the venture. According to Dr. Graivier, they told Dreger that each would collect their own fees and pay the expenses associated with their use of the surgical center. To the extent third parties used the facility, however, fees paid by the third party would be placed in an LLC account, from which expenses would be paid and any profits split between Dr. Graivier and Dr. Duncan. As described by Dr. Graivier, “the LLC was just to be the management company as a means to employ the common employees. That’s all the LLC essentially was to be, and the only profits that were to be in the LLC were from third-party users.”

Graivier v. Dreger & McClelland

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