Degenhart, M.D. v. Congaree State Bank et al

MOTION for Summary Judgment

D.S.C.October 28, 2011

.. F I'LLj U? DT 1'T IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA p I Cr— 28 Pfl 3: 5,SAVANNAH DIVISON WILLIAM DEGENHART, M.D. ) ) PLAINTIFF, ) ) ) V. ) ) CONGAREE STATE BANK, THE DEGENHART) LAW FiRM, PAUL DEGENHART AND ) MARY NELL DEGENHART, ) ) DEFENDANTS. ) ) Civil Action No. 4:l1-CV-00013 MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW Defendant Paul Degenhart (sometimes referred to as "the Defendant") moves the Court for Summary Judgment on the Breach of Duty claim against him under Federal Rule of Civil Procedure 56(c). MEMORANDUM OF LAW I. Statement of Facts Plaintiff William Degenhart filed this action in the Superior Court of Chatham County. The case was moved to this Court. Plaintiff bases this action on allegations that defendants Paul Degenhart, Mary Nell Degenhart and Degenhart Law Firm (collectively the "Degenhart Defendants") improperly signed his name to a guaranty and a promissory note in favor of Congaree State Bank (the"Bank"). These Joan documents related to loans the Bank made to MND 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 1 of 11 Properties, LLC of which Plaintiff incorrectly alleges Defendants Paul and Mary Nell Degenhart are "principals". Plaintiff has brought a Breach of Duty claim against Defendant alleging professional malpractice under O.C.G.A Section 9-11-9.1. Because all of the operative events—such as the closings - occurred in South Carolina, that state's laws apply.' In South Carolina, in order to prevail in a cause of action for legal malpractice, the plaintiff must prove: (1) the existence of an attorney-client relationship; (2) a breach of duty by the attorney; (3) damage to the client; and (4) proximate cause of the client's damages by the breach. Rydde v. Morris, 382 S.C. 643, 675 S.E.2d 431, 433 (2009). "In South Carolina, attorneys are required to render services with the degree of skill, care, knowledge, and judgment, and judgment usually possessed and exercised by members of the profession." Holy Loch Distribs.. Inc. v. Hitchcock, 340 S.C. 20, 26, 531 S.E.2d, 285 (2000), and" [t]he standard to be applied in determining legal malpractice issues is statewide, "Smith v. Haynsworth. Marion, McKay Geurard, 322 S.C. 433, 437-438, 472 S.E.2d 612, 614 (1996). Finally, generally, a plaintiff, a plaintiff in a legal malpractice action must establish this standard of care by expert testimony. Id. At 435, 472 W.E.2d at 613. In this matter Plaintiff has testified on two occasions that no attorney- client relationship existed. (See excerpts from Exh. B, Plaintiff Deposition testimony at Pages 123 and 179 respectively). See also Affidavit of Paul Degenhart attached, Exh. A at Para. A federal court sitting in diversity applies the substantive laws of the forum state, including the state's choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); O"Neal v. Kennamer, 958 F.2d 1044 (1 1th Cir. 1992). In tort cases, Georgia follows the traditional lex loci delicti rule: a tort action is governed by the laws of the state in which the tort occurred. Federal Ins. Co. v. National Distrib. Co., 203 Ga. App 763 (1992). Because the alleged tort occurred in South Carolina, the laws of South Carolina will determine the substantive rights of the parties in this case. Davis v. City of August, 942 F. Supp 577, 579 (S.D. Ga 1996). The loan documents attached to the Complaint both provide that South Carolina law governs them. 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 2 of 11 4.where he states that no attorney client relationship existed. Moreover, Plaintiff, except for an Affidavit attached to his original complaint has not informed the Court of any Expert testimony. See also, Southeastern Housing Foundation v. Smith, 380 S.C. 621, 670 S.E.2d 680 (S.C.App. 2008) where the Court held that "the standard of care for legal malpractice is outside the ambit of common knowledge of laypersons and the failure to present this [expert testimony] evidence precludes ... the legal malpractice claim". These factors, or either of them, are fatal to Plaintiffs case against this Defendant. Federal Rule of Civil Procedure 56(c) provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. "Celotex Cor p. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. Libert y Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the facts in light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Cor p., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must draw "all justifiable inferences in his favor." United States v. Four Parcels of Real Prop., 941 F.2d 1428 as cited in Sprinkle v. City of Douglas, G.A., 621 F. Supp. 2d 1327 (S.D. Ga., 2008) . The facts of this case are clear. As stated by Plaintiff himself no attorney-client relationship existed. CONCLUSION 3 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 3 of 11 Because the Plaintiff's case viewed in the light most favorable to him, is insufficient to establish all the requisite elements of his claim, this Defendant is entitled to Summary Judgment. J Paul Degenhart 2131 Park St. Columbia, SC 29201 803-771-6050 4 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 4 of 11 EXHIBIT A IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION William Degenhart, M.D., ) PIaintiff, ) V. Congaree State Bank, The Degenhart) Law Firm, Paul Degenhart ) and MaryNell Degenhart, ) Defendants. ) Case No. 4:11-CV-00013 AFFIDAVIT OF PAUL DEGENHART Personally before the undersigned officer, who is duly authorized to administer oaths, appeared Paul Degenhart who, upon being duly sworn, deposes and says as follows: 1. I am Paul Degenhart, and I am a resident of the County of Richland and the State of South Carolina. 2. I am a South Carolina, Georgia and Nebraska licensed attorney. 3. I performed legal services exclusively through Degenhart Law Firm, P.A. 4. Neither I nor Degenhart Law Firm, P,A. was engaged to perform, and in fact did not perform, legal services for the Plaintiff in connection with the matters subject of this litigation. FURTHER AFFIANT SAYETH NOT Paul Degenhart, D dant, Pro Se 2131 Park Street 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 5 of 11 Columbia, SC 29201 803-771-6050 ^Ib Sworn tc adbeefibed before me tary W h *dS gat hol Public in and h Carolina thi v of October, 2011 Iij3)207 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 6 of 11 ESQUIRE G.I, Toll Free: 877.495.0777 Facsimile: 404.495.0765 311 B West York Street Savannah, GA 31401 www.esquiresolutions.com EXHIBIT B William U. uegennart, M.JJ. epceraoar Z1, ZU11 11 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION WILLIAM DEGENHART, M.D., Plaintiff, CASE FILE NO.: VS. 4 :11-CV-00013-WTM-GRS CONGAREE STATE BANK, THE DEGENHART LAW FIRM, PAUL DEGENHART and MARY NELL DEGENHART, Defendants. DEPOSITION OF WILLIAM J. DEGENHART, M.D. September 21, 2011 2:14 p.m. Savage, Turner, Kraeuter, Pinckney & Madison 304 East Bay Street Savannah, Georgia Lisa J. Schoch, Certified Court Reporter, B-1761 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 7 of 11 ESQUIRE an Alnxand.r Gala Coopany Toll Free; 877.495.0777 Facsimile: 404.495.076 311 B West York Street Savannah, GA 31401 www.esquresolutionscom WJJ.Llam J. Degenriart, M.D. bepterrtDer 2.1., 2ULJ. 123 1 THE WITNESS: Paul represented me on 2 transactions before, yes. At one time he wrote 3 my will. 4 Q. (By Mr. Kennedy) All right. My original 5 question was: With respect to the loans made by 6 Congaree State Bank to MND Properties, L.L.C., did 7 you consider yourself a client of the law firm? 8 MR. SAVAGE: No. 9 THE WITNESS: Calls for a legal opinion 10 that I don't think I can give. 11 Q. (By Mr. Kennedy) All right. You're an 12 ophthalmologist, correct? 13 A. lam. 14 Q. Can a patient be your patient without 15 thinking they're your patient, without consenting to 16 your treatment, absent emergency circumstances? 17 MR. SAVAGE: Jake, we'll stipulate that he 18 was not a client -- he did not consider himself 19 to be a client of the Degenhart Law Firm for the 20 closings that he didn't know about, the MND 21 closings. 22 Q. (By Mr. Kennedy) Very good. 23 I do want to follow up on -- 24 Dr. Degenhart, in a couple of depositions now or your 25 two depositions, and, of course, your lawyer, 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 8 of 11 Dr. William Degenhart August 5, 2011 Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION WILLIAM DEGENHART, M.D., Plaintiff, VS. ARTHUR STATE BANK, THE DEGENH.ART LAW FIRM, PAUL DEGENHART AND MARY) NELL DEGENHART, Defendants. CIVIL ACTION NO. 4:11-CV-041 DEPOSITION OF WILLIAM DEGENHART, M.D. August 5, 2011 1:03 p.m. 2 East Bryan Street Savannah, Georgia Thomas J. Dorsey, RPR, CCR-2781 Gilbert & Jones 877-355-0329 dbgi1bert@bellsouth.net 1616a3d64c91.4520.beOl.68381a01b6c7 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 9 of 11 Dr. William Degenhart August 5, 2011 Page 178 Page 180 1 the lawsuit. 1 Q. Do you know if the Degenhart Law Firm has 2 Q. (By Mr. Kennedy) Okay. Well, what 2 any assets? 3 documents, Dr. Degenhart, do you allege you did not 3 A. I have no idea. 4 sign in relationship to the loans made from Arthur 4 Q. Do you know if the Degenhart Law Firm has 5 State Bank to - 5 any error and omission or malpractice coverage for 6 MR. SAVAGE: No. We cant do this -- we 6 this lawsuit? 7 can't do this by phone. I mean, just come on 7 A. I don't believe that they do. 8 down. We did all this. We're happy to make him 8 MR. KENNEDY: Dr. Degenhart, I have no 9 available. Just come on down. 9 further questions for you. 10 THE WITNESS: Probably 30 of them. 10 THE WITNESS: Okay. 11 MR. SAVAGE: Yeah, I mean, it's hard. We 11 MR. SAVAGE: All right, sir. 12 can't do this, Jake. 12 MR. PAINTER. Do you have any, 13 MR. KENNEDY: All right. Well, let's - 13 Mr. Degenhart? 14 I'll ask you a different question if we can't do 14 MR. P. DEGENI-IART: I do riot. 15 that one. 15 MR. PAINTER: The deposition is over. 15 MR. SAVAGE: Well, I mean, we did it 16 (Deposition concluded at 6:19 p.m.) 17 MR. KENNEDY: Well, that's fine, Brent. 17 (Pursuant to Rule 30(e) of the Federal 18 MR. SAVAGE: Well, don't get testy. 18 Rules of Civil Procedure and/or O.C.G.A. 9-11-30(e), 19 MR. KENNEDY: I'm asking another question. 19 signature of the witness has been reserved.) 20 MR. SAVAGE: Don't get testy. 20 21 MR. KENNEDY: All right. I want toget 21 22 out of here too. I know you do. 22 23 MR. SAVAGE: I do, but, I mean -. go 23 24 ahead. 24 25 Q. (By Mr. Kennedy) Dr. Degenhart, with 25 Page 179 Page 181 1 regard to the loan transactions between Arthur State 1 CERTIFICATE 2 Bank and MND Properties, do you think you were a 2 3 client of the law firm? 3 STATE OF GEORGIA: 4 A. Do I think I was a client of the law firm? 4 COUNTY OF EFFINGHAM: 5 Q. Yes, sir. 6 A. Representation on these notes? No. 6 1 hereby certify that the foregoing 7 Q. Were you a client of the Degenhart Law 7 transcript was taken down, as stated in the 8 Firm? 8 caption, and the questions and answers thereto 9 MR. SAVAGE: He's answered your question. 9 were reduced to tevniting under my direction; 10 He's answered your question no. 10 that the foregoing pages 1 through 180 represent 11 MR. KENNEDY: That's not in here, no 11 a true, complete, and correct transcript of the 12 MR. SAVAGE: Well, that's because you're 12 evidence given upon said hearing and I further 13 doing it on the cheap end. You're too far away. 13 certify that lam not of kin or counsel to the 14 parties in the case; am not in the regular 14 MR. KENNEDY: Okay. 15 employ of counsel for any of said parties; nor 15 Q. (By Mr. Kennedy) Dr. Degenhart, with 15 am i in anywise interested in the result of said 16 regard to the loan transactions that are the subject 17 case. 17 of this lawsuit, did you consider yourself a client 18 This, the 8th day of August, 2011. 18 of the Degenhart Law Finn? 19 19 A. With respect to these loans, I did not 20 20 consider myself a client of the Degeuhart Law Firm. 21 THOMAS J. DORSEY, Certified 21 Q. Dr. Degenharr, do you know if the Court Reporter, 2781 22 Degenhart Law Firm is an active entity? 22 23 A. Well, I think wejust got some 23 24 interrogatories back saying that they were no longer 24 25 an active entity. 25 46 (Pages 178 to 181) Gilbert & Jones 877-355-0329 dbgilbert@be11soutzh.net 1616a3d8.4c91 .452O-bO1 .68381a01 b6c7 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 10 of 11 CERTIFICATE OF SERVICE I hereby certify that I have this day served the within and foregoing Motion for Summary Judgment on all parties in this case in accordance with the directions from the Court Notice of Electronic Filing ("NEF") which was generated as a result of electronic filing. Brent J. Savage Savage, Turner, Kraeuter, Pinckney, Britt & Maddison P.O. Box 10600 Savannah, GA 31412 Taylor T. Daly, Esq. Nelson Mullins Riley & Scarborough, LLP Atlantic Station! 201 17th Street, NW! Suite 1700 Atlanta, GA 30363 Jacob Kennedy Turner Padget Graham & Laney 1831 West Evans Street Florence, SC 29201 MaryNefl Degenhart 2131 Park Street Columbia, SC 29201 This .?6day of October, 2011. Paul Degenhart, Pro S 2131 Park Street Columbia, SC 29201 (803)771-6050 3:12-cv-00858-JFA Date Filed 10/28/11 Entry Number 47 Page 11 of 11