Gowen Oil Company v. Foley & Lardner, LLP , 562 F. App'x 958 ( 2014 )

Case: 13-12958 Date Filed: 04/15/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12958
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D.C. Docket No. 5:12-cv-00039-LGW-JEG
GOWEN OIL COMPANY,
Plaintiff - Appellant,
versus
FOLEY & LARDNER, LLP,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(April 15, 2014)
Before TJOFLAT, Circuit Judge, and MOORE ∗ and SCHLESINGER, ∗ District
Judges.
∗
The Honorable K. Michael Moore, United States District Judge for the Southern
District of Florida, sitting by designation.
∗
The Honorable Harvey E. Schlesinger, United States District Judge for the Middle
District of Florida, sitting by designation.
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PER CURIAM:
The facts underlying this controversy between Gowen Oil Company and the
law firm, Foley & Lardner, LLP, which represented it on an hourly rate fee basis
for several years, are laid out in Gowen Oil Company v. Greenberg Traurig, LLP,
453 Fed. Appx. 897 (11th Cir. 2011) (per curiam). United Fuel, Inc., which owned
three gas stations, gave Gowen an oral right of first refusal –– which was never
reduced to writing –– to purchase the stations. Without informing Gowen, United
sold the gas stations to Biju Abraham. Gowen sued Abraham and obtained a
judgment of approximately $1.7 million. Unable to obtain satisfaction of its
judgment, Gowen sued Abraham’s lawyers, Greenbereg Traurig, and lost. On
March 28, 2012, Gowen, in an effort to obtain satisfaction for Abraham’s
wrongdoing, sued Foley in the State Court of Charlton County, Georgia. The
original complaint alleged that Foley was negligent for failing to properly record
Gowen’s oral right of first refusal. Foley properly removed the case to the United
States District Court for the Southern District of Georgia.
In the District Court, Foley moved for summary judgment on the ground that
Gowen’s claim of legal malpractice was barred pursuant to a four-year statute of
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limitations. 1 Shortly after Foley’s motion was filed, Gowen amended its complaint
to include allegations that Foley had given legal advice to Gowen which
“appea[red] to be contrived and knowingly false” and that Gowen “had a written
agreement with [Foley] regarding its provision of legal services.” Citing these new
allegations, Gowen opposed Foley’s motion for summary judgment arguing that its
cause of action arose out of a written contract and therefore a six-year statute of
limitations governed. 2 Gowen also argued that, regardless of which statute of
limitations governed, Foley’s knowingly false advice had tolled it from running. 3
Despite Gowen’s arguments, the District Court granted Foley’s motion for
summary judgment finding that 1) the four-year statute of limitations applicable to
legal malpractice claims governed; 2) the statute began running on October 1, 2007
–– the date of the latest possibly negligent act alleged by Gowen and supported by
evidence; and 3) there was no evidence of fraud by Foley sufficient to toll the
statute of limitations.
1
See Shores v. Troglin, 260 Ga. App. 696, 697, 580 S.E.2d 659, 660 (Ct. App. 2003)
(“The statute of limitation for legal malpractice actions is four years and runs from the date of
the alleged incident of malpractice.” (citing Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269
Ga. 844, 845, 507 S.E.2d 411, 412 (1998))).
2
See O.C.G.A. § 9-3-24 (“All actions upon simple contracts in writing shall be brought
within six years after the same become due and payable.”).
3
See O.C.G.A. § 9-3-36 (“If the defendant or those under whom he claims are guilty of a
fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of
limitations shall run only from the time of the plaintiff's discovery of the fraud.”).
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On appeal, Gowen argues that the six-year statute of limitations applicable
to claims involving a written contract should govern and that, even if the four-year
statute of limitations applies, the statutory period was tolled by Foley’s knowingly
fraudulent assurances. After review, we find both of these arguments to be
meritless. First, the record does not include a copy of a written contract between
Gowen and Foley, and Gowen has failed to offer even verbal evidence of the
alleged contract’s terms. A Vice President of Gowen –– when asked about the
alleged contract during his deposition –– testified that he was “pretty sure [Foley]
had [him] sign something” but that he did not recall any specifics regarding its
terms. Second, nothing in the record supports the amended complaint’s bald
assertion that Foley gave “contrived and knowingly false” legal advice in an
attempt to quash a potential malpractice suit by Gowen. To the contrary, a former
officer of Gowen –– when asked during his deposition whether he thought Foley
had intentionally lied to him –– testified “I don’t think [Foley] intentionally did
anything wrong.” Later in the same deposition –– when asked about the
complaint’s allegation that Foley had given “contrived and knowingly false”
advice –– the former officer conceded that this language was “not [his] words” but
that it “was thought up by [Gowen’s attorney.]” In light of the absence of any
evidence in the record supporting Gowen’s arguments on appeal, the District
Court’s order granting summary judgment in favor of Foley is
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AFFIRMED.
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