NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: October 22, 2024
S23G1124. TITSHAW et al. v. GEER et al.
COLVIN, Justice.
After a bankruptcy proceeding went awry, the plaintiffs in this
case filed suit against lawyers and law firms who had advised them
to file for bankruptcy. The plaintiffs asserted tort claims for legal
malpractice and claims for breach of written contracts for legal
services, alleging, among other things, that the lawyers committed
legal malpractice in executing their duties under the contracts. The
defendants moved to dismiss both sets of claims as barred by OCGA
§ 9-3-25’s four-year statute of limitation. And although the trial
court only granted those motions as to the tort-based legalmalpractice claims, it later granted a summary-judgment motion
filed by a subset of the defendants on the ground that the breach-ofcontract-for-legal-services claim against those defendants was also
barred by OCGA § 9-3-25. On appeal, the Court of Appeals likewise
concluded that the tort-based legal-malpractice claims were barred
by OCGA § 9-3-25’s statute of limitation. See Titshaw v. Geer, 368
Ga. App. 266, 268-269 (1) (888 SE2d 301) (2023). And the Court of
Appeals further concluded that the breach-of-contract-for-legalservices claims were due to be dismissed as “duplicative” because
they were based on the same conduct underlying the tort-based
legal-malpractice claims. See id. at 269-270 (2), (4).
We granted certiorari to address which statute of limitation
applies to a claim for breach of a contract for legal services — OCGA
§ 9-3-24’s six-year statute of limitation for “actions upon simple
contracts in writing” or OCGA § 9-3-25’s four-year statute of
limitation for “actions . . . for the breach of any contract not under
the hand of the party sought to be charged, or upon any implied
promise or undertaking.” And we further granted certiorari to
determine whether the Court of Appeals erred in concluding that a
claim for breach of a contract for legal services should be dismissed
if it is based on the same conduct underlying a tort-based legal2
malpractice claim that the court has concluded is barred by the
statute of limitation.
As explained below, we conclude that a breach-of-contract-forlegal-services claim can be governed by either OCGA § 9-3-24’s sixyear statute of limitation or OCGA § 9-3-25’s four-year statute of
limitation, and that which statute of limitation applies must be
determined under the framework set out in Newell Recycling of
Atlanta, Inc. v. Jordan Jones & Goulding, Inc., 288 Ga. 236 (703
SE2d 323) (2010). We further hold that, in Division 4 of its opinion,
the Court of Appeals erred in concluding that a claim for breach-ofcontract-for-legal-services was due to be dismissed as “duplicative”
of a legal-malpractice claim that it had concluded was barred by
OCGA § 9-3-25’s statute of limitation. Titshaw, 368 Ga. App. at 270
(4). As explained below, the Court of Appeals erred in failing to apply
the well-established motion-to-dismiss standard to determine
whether, under Newell Recycling’s framework, it was possible for
the plaintiffs to prove that OCGA § 9-3-24’s six-year statute of
limitation applied to the breach-of-contract-for-legal-services claim.
3
Accordingly, we vacate the Court of Appeals’ judgment, and we
remand for further proceedings consistent with this opinion. 1
1. David Titshaw is the majority owner and managing
member of Taylor Investment Partners II, LLC, TIP II - Ansley,
LLC, and TIP II - Suburban, LLC (the “TIP entities”), which operate
restaurants in Atlanta and Decatur under franchise agreements.
After the TIP entities filed a Chapter 11 bankruptcy petition, giving
the franchisor grounds for terminating the franchise agreements,
Titshaw and the TIP entities (collectively, “Plaintiffs”) filed suit
against defendants Will B. Geer and the Law Office of Will B. Geer,
LLC (collectively, “Geer”), and Cohen Pollock Merlin Turner, P.C.
(“CPMT”), who had advised Plaintiffs to file the Chapter 11
bankruptcy petition. Plaintiffs asserted tort claims for legal
malpractice and claims for breach of the separate contracts for legal
services that Plaintiffs had entered into with Geer and CPMT.
The trial court granted Geer’s and CPMT’s motions to dismiss
the legal-malpractice claims as barred by OCGA § 9-3-25’s four-year
1 We thank Georgia Watch, Inc. for its amicus brief in this case.
4
statute of limitation but summarily denied their motions to dismiss
the breach-of-contract claims on the same grounds. 2 On summary
judgment, the trial court concluded that the breach-of-contract claim
against Geer was likewise governed by, and barred under, OCGA §
9-3-25’s four-year statute of limitation.
On appeal, the Court of Appeals affirmed in part and reversed
in part. As relevant here, in Division 1 of its opinion, the Court of
Appeals affirmed the trial court’s dismissal of Plaintiffs’ tort claims
for legal malpractice against both Geer and CPMT as barred by
OCGA § 9-3-25’s four-year statute of limitation. 3 See Titshaw, 368
2 It does not appear that there was any dispute in the trial court as to
which statute of limitation applied to the tort-based legal-malpractice claims.
Relying on case law that cited OCGA § 9-3-25, the defendants argued in their
motions to dismiss that those claims were governed by a four-year limitation
period, and Plaintiffs did not argue otherwise in their briefs opposing the
motions to dismiss.
3 The Court of Appeals followed the trial court’s lead in applying OCGA
§ 9-3-25’s four-year statute of limitation to the tort-based legal-malpractice
claims. In doing so, the Court of Appeals did not address the body of Court of
Appeals case law stating that legal-malpractice claims sounding in tort are
instead governed by the shorter limitation periods provided for in OCGA § 9-3-33. See, e.g., Coleman v. Hicks, 209 Ga. App. 467, 468 (1) (433 SE2d 621)
(1993) (noting that a legal-malpractice claim can sound in either contract or
tort and that a tort-based legal-malpractice claim is governed by OCGA § 9-3-33’s “one-year and/or two-year limitation [period]”). See also OCGA § 9-3-33
(providing in relevant part that “actions for injuries to the person shall be
5
Ga. App. at 268-269 (1). As to Plaintiffs’ breach-of-contract-for-legalservices claims, the Court of Appeals affirmed the trial court’s grant
of summary judgment to Geer in Division 2 of its opinion and
reversed the trial court’s denial of CPMT’s motion to dismiss in
Division 4 of its opinion. See id. at 269-270 (2), (4). The court
employed the same reasoning in both divisions. Specifically, in
Division 2 of its opinion, the Court of Appeals concluded that the
trial court properly granted summary judgment to Geer on
Plaintiffs’ breach-of-contract claim because the claim was “based
upon the same conduct that form[ed] the basis of the legal
malpractice claim” (namely, the defendants’ conduct in negligently
advising Plaintiffs to file for bankruptcy), and the breach-of-contract
claim was therefore “duplicative” of the tort-based legal-malpractice
claim. Id. at 269 (2). And in Division 4 of its opinion, the Court of
brought within two years after the right of action accrues, except for injuries
to the reputation, which shall be brought within one year after the right of
action accrues”). As noted below, whether the Court of Appeals correctly
determined that the tort-based legal-malpractice claims were barred by OCGA
§ 9-3-25’s four-year limitation period is outside the scope of the questions posed by this Court in our order granting certiorari. Accordingly, we express no
opinion on whether the Court of Appeals applied the correct statute of
limitation to Plaintiffs’ legal-malpractice claims sounding in tort.
6
Appeals concluded that the trial court should have dismissed
Plaintiffs’ breach-of-contract claim against CPMT “[f]or the
reasons[ ] stated above in Division 2 of this opinion.” Id. at 270 (4).
2. Before turning to the merits of this appeal, we briefly
address the scope of our review in this case. This case comes to us
by way of two appeals from the trial court that resulted in two
judgments of the Court of Appeals. See Titshaw, 368 Ga. App. at
270. In the first appeal (Court of Appeals Case No. A23A0410),
Plaintiffs challenged the trial court’s order dismissing the tort-based
legal-malpractice claims against Geer and CPMT, as well as the trial
court’s order granting Geer’s motion for summary judgment on the
claims against Geer for breach of contract and attorney fees. The
Court of Appeals’ rulings as to the first appeal appear in Division 1
through 3 of its opinion. See id. at 268-269 (1) - (3). In the second
appeal (Court of Appeals Case No. A23A0439), CPMT challenged the
trial court’s order denying its motion to dismiss Plaintiffs’ claim
against CPMT for breach of contract for legal services. The Court of
Appeals’ ruling as to the second appeal appears in Division 4 of its
7
opinion. See id. at 270 (4).
Our order granting certiorari included both Court of Appeals
case numbers and thus both judgments of the Court of Appeals. But
our certiorari questions concerned only the Court of Appeals’ rulings
on the breach-of-contract claims, that is, the rulings in Divisions 2
and 4 of the Court of Appeals’ opinion. See Titshaw, 368 Ga. App. at
269-270 (2), (4). And while the case was pending before us, Plaintiffs
and Geer settled the case between them, rendering the first appeal
(Court of Appeals Case No. A23A0410) moot as to the dispute
between Plaintiffs and Geer over the breach-of-contract claim
addressed in Division 2 of the Court of Appeals’ opinion. Cf. WMW,
Inc. v. Am. Honda Motor Co., 291 Ga. 683, 685 (2) n.1 (733 SE2d 269)
(2012) (noting that a settlement generally moots an appeal).
As a result, we confine our merits review to Division 4 of the
Court of Appeals’ opinion, which addressed Appellant’s breach-ofcontract-for-legal-services claim against CPMT. See Titshaw, 368
Ga. App. at 270 (4). As explained below, we vacate that division. And
because the Court of Appeals based its ruling in Division 4 on its
8
reasoning in Division 2, a conflict in precedent would arise if we
vacated the former division but not the latter. Accordingly, we
exercise our discretion to vacate Division 2 of the Court of Appeals’
opinion as well. See WMW, 291 Ga. at 685 (2) n.1 (relying on U.S.
Bancorp Mtg. Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (2)
(115 SCt 386, 130 LE2d 233) (1994), to explain how settlement on
appeal generally affects a judgment under review). See also U.S.
Bancorp Mtg. Co., 513 U.S. at 29 (2) (noting that “equitable”
principles underlie an appellate court’s decision whether to vacate a
judgment under review, and that, although “mootness by reason of
settlement [generally] does not justify vacatur of a judgment under
review[,] . . . exceptional circumstances may conceivably counsel in
favor of such a course”).
3. Turning to the merits, in the instant case, Plaintiffs
raised tort claims for legal malpractice and breach-of-contract
claims based on alleged breaches of written contracts for legal
services. See Villanueva v. First Am. Title Ins. Co., 292 Ga. 630, 631-632 (740 SE2d 108) (2013) (noting that, although“[a] claim of legal
9
malpractice may . . . sound in tort,” a legal malpractice action “based
upon breach of a duty imposed by the contract of employment
between the attorney and the client” generally “sounds in contract”).
As to the latter claims, and as relevant here, Plaintiffs alleged that
CPMT had breached the implied promise to perform professionally
under a written contract for legal services and had also breached
specific provisions of that written contract. We granted certiorari to
determine which statute of limitation governs claims for breaching
contracts for legal services, like those asserted by Plaintiffs in this
case. As explained below, we conclude that the framework set out in
Newell Recycling for determining which statute of limitation applies
to a claim for breaching a contract for professional services applies
with equal force to breach-of-contract-for-legal-services claims. And
as further explained below, we conclude that applying Newell
Recycling in this manner does not contradict statements we have
made in other cases about the limitations period applicable to such
claims.
(a) As a general matter, breach-of-contract actions in Georgia
10
are governed by OCGA § 9-3-24’s six-year statute of limitation if
they are premised on a written contract with the defendant and by
OCGA § 9-3-25’s four-year statute of limitation if they are premised
on an oral or implied contract with the defendant. See OCGA § 9-3-24 (“All actions upon simple contracts in writing shall be brought
within six years after the same become due and payable.”); OCGA
§ 9-3-25 (“All actions upon open account, or for the breach of any
contract not under the hand of the party sought to be charged, or
upon any implied promise or undertaking shall be brought within
four years after the right of action accrues.”).
In Newell Recycling, we granted certiorari to determine
whether “a professional malpractice claim premised on a written
contract is governed by the four-year statute of limitation in OCGA
§ 9-3-25” or “the six-year statute of limitation in OCGA § 9-3-24.”
Newell Recycling, 288 Ga. at 237. We concluded that the latter
statute of limitation applied, reasoning that OCGA § 9-3-25’s “plain
terms” showed that its four-year statute of limitation “only applies
where no sufficiently written contract exists and a cause of action
11
can therefore be based solely on the breach of an express oral or
implied promise,” and that “the Legislature and this Court have
made clear that” OCGA § 9-3-24’s six-year statute of limitation
applies where a breach of contract action is pursued based on “a
complete written contract.” Id. at 237-238.
“In determining which statute of limitation applies,” we
explained, “the threshold inquiry is to determine whether a written
agreement actually exists between the parties such that any implied
duties sued upon would have grown directly out of the existence of
the written contract itself.” Newell Recycling, 288 Ga. at 238. We
clarified that, where an “enforceable, written contract” between the
parties exists and the breach-of-contract claim stems from a duty
arising, “not remotely or ultimately, but immediately . . . from [the]
instrument[ ] of writing,” OCGA § 9-3-24’s six-year statute of
limitation applies. Id. at 237-238 (citations and punctuation
omitted). And this is so, we said, “regardless of whether the alleged
breach stems from the express terms of the agreement or duties that
are implied in the agreement as a matter of law,” such as “an implied
12
promise to perform professionally pursuant to a written agreement
for professional services.” Id. We further clarified that, “[w]here the
agreement is incomplete, such that the writing does not form a
contract or the promise allegedly broken stems from a purely oral
agreement, the four-year statute of limitation of OCGA § 9-3-25
applies.” Id. at 238.
Although Newell Recycling concerned contracts for professional
engineering services, see Newell Recycling, 288 Ga. at 236, its
reasoning applies with equal force to contracts for other professional
services, including contracts for legal services. As applied to a claim
for breaching a contract for legal services, Newell Recycling provides
that the claim is governed by OCGA § 9-3-24’s six-year statute of
limitations if it is premised on an “enforceable, written contract”
between the parties and the alleged breach concerns a “dut[y] . . .
grown directly out of” the written instrument, meaning that the
complained-of conduct fell within the scope of the legal services that
the defendant agreed to perform under the “written contract itself.”
13
Id. at 237-238 (citation and punctuation omitted).4 And “because an
implied promise to perform professionally pursuant to a written
agreement for [legal] services would be written into the contract for
[legal] services by the law,” a claim alleging a “breach of this implied
obligation . . . [is] governed by the six-year statute of limitation of
OCGA § 9-3-24” so long as the alleged breach “directly” relates to the
legal services that the defendant agreed to undertake pursuant to
the written contract. Id. (citation and punctuation omitted).5 By
contrast, when no written contract for legal services exists, a written
4 Cf. Jenkins v. Prime Ins. Co., No. 1:20-CV-01263-JPB, 2021 WL 807612,
at *4 (II) (A) (1) (N.D. Ga. Mar. 3, 2021) (holding that, under Newell Recycling,
the six-year limitations period could not apply because “[w]hatever legal advice
[the attorney was] alleged to have provided [could not] be considered an agreed
upon service rendered pursuant to the Policy,” which was “not an agreement
for professional services that set[ ] forth the specific responsibilities [the
attorney] . . . agreed to undertake,” and because the “advice was [at best]
incidental to the administration of the Policy”).
5 See Julmist v. Prime Ins. Co., 92 F4th 1008, 1019 (III) (B) (1) (11th Cir.
2024) (explaining that, under Newell Recycling, “[t]o determine whether the
six-year period applies [to a claim that the defendant breached implied duties
in a written contract], courts must look to whether any implied duties that
were allegedly breached would have grown directly out of the existence of the
written contract itself”; and holding that OCGA § 9-3-25 applied to a claim
where the alleged breach “did not grow out of the written contract” at issue,
which “was an insurance policy, not a contract for professional services,” and
the duty allegedly breached was “[a]t most . . . incidental to the policy”
(citations and punctuation omitted; emphasis in original)).
14
contract for legal services is unenforceable, or the alleged breach is
only “remotely” related to the legal services that were the subject of
a written agreement, any breach-of-contract claim is necessarily
premised on an oral contract, and OCGA § 9-3-25’s four-year statute
of limitation applies to that claim. Id. (citation and punctuation
omitted).6
(b) Our order granting certiorari in this case highlighted a
possible tension in our precedent. Specifically, we cited Newell
Recycling, which, as discussed above, indicated that a claim for a
breach of a contract for legal services could be governed by either
OCGA § 9-3-24 or OCGA § 9-3-25, depending on the circumstances.
And we cited as a point of comparison our decision in Armstrong v.
Cuffie, 311 Ga. 791 (860 SE2d 504) (2021), where we stated in a
6 CPMT suggests that, although “[a]herence to stare decisis is
important,” this “Court may want to consider” overruling Newell Recycling and
“adopting the approach in many other states — applying the tort statute,
OCGA § 9-3-33, to all legal malpractice claims” — because applying a single
limitations period to all claims involving legal malpractice would make sense
as a matter of public policy. But CPMT has not argued that Newell Recycling
was wrongly decided. Accordingly, we decline CPMT’s invitation to reconsider
our precedent.
15
footnote, “It has long been the law in this state that a cause of action
for legal malpractice, alleging negligence or unskillfulness . . . , is
subject to the four-year statute of limitation in OCGA § 9-3-25.”
Armstrong, 311 Ga. at 793 (1) n.4 (citation and punctuation omitted;
ellipses in original). Taken in isolation, that language might suggest
that all breach-of-contract-for-legal-services claims are governed by
OCGA § 9-3-25, contrary to our application of Newell Recycling
discussed above.
When read in context, however, there is no necessary tension
between Newell Recycling and Armstrong as to which statute of
limitation governs claims for breach of a contract for legal services.
Armstrong addressed only “whether the Court of Appeals properly
identified the accrual date” of a breach-of-contract-for-legal-services
claim alleging legal malpractice in connection with the contract, not
which statute of limitation applied to the claim. Armstrong, 311 Ga.
at 791, 793-794 (1) & n.4 (noting that the Court of Appeals had
determined that the “malpractice suit was a contract action”). And
although the plaintiff in Armstrong had “signed a written contract
16
for representation” with the defendant attorney “to handle [the
plaintiff’s] claims against the other drivers” involved in a motorvehicle accident, it does not appear that the duty the plaintiff alleged
the defendant attorney had breached — the duty to “seek [uninsured
motorist] coverage” by timely filing a claim against the plaintiff’s
insurance company — arose directly from that written contract.7 Id.
at 792-793 (1) (citation and punctuation omitted; emphasis
supplied). Because it was undisputed in Armstrong that OCGA § 9-3-25’s four-year limitation period for oral contracts applied to the
claim, and the opinion does not suggest that the breach-of-contract
claim was premised on the written agreement, Armstrong is most
sensibly read as addressing a claim for breach of an oral contract.
And in that context, Armstrong’s dicta stating that OCGA § 9-3-25’s
7 In Armstrong, we noted the parties’ agreement that the defendant
attorney, having been engaged to represent the plaintiff “in connection with
the motor vehicle accident,” had a general legal duty “to take actions to protect
[the plaintiff’s] interests, including preserving a claim for insurance coverage,” and a specific duty to timely present an uninsured-motorist claim to the
plaintiff’s insurance company. Armstrong, 311 Ga. at 795 (2). But the opinion
does not indicate that the parties believed the written representation
agreement was the source of those duties.
17
four-year statute of limitation governed the breach-of-contract-forlegal-services claim is consistent with Newell Recycling and with the
line of Court of Appeals’ precedent on which Armstrong relied, which
addressed breach-of-contract claims premised on oral agreements.8
Accordingly, we do not read Armstrong as suggesting that all
breach-of-contract-for-legal-services claims are governed by OCGA
§ 9-3-25, and we disapprove of such a broad interpretation of the
case.
8 See Armstrong, 311 Ga. at 794 (1) n.4 (“It has long been the law in this
state that a cause of action for legal malpractice, alleging negligence or
unskillfulness . . . , is subject to the four-year statute of limitation in OCGA
§ 9-3-25.” (ellipses in original) (quoting Royal v. Harrington, 194 Ga. App. 457,
457 (390 SE2d 668) (1990))); Royal, 194 Ga. App. at 457 (“It has long been the
law in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral
agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25.”
(emphasis omitted) (quoting Ballard v. Frey, 179 Ga. App. 455, 459 (3) (346
SE2d 893) (1986))); Ballard, 179 Ga. App. at 459 (3) (“It has long been the law
in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral
agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25
. . . .” (punctuation in original; emphasis omitted) (quoting Hamilton v. Powell,
Goldstein, Frazer & Murphy, 167 Ga. App. 411, 412-413 (1) (306 SE2d 340)
(1983))); Hamilton, 167 Ga. App. at 412-413 (1) (“It has long been the law in
this state that a cause of action for legal malpractice, alleging negligence or
unskillfulness, sounds in contract (agency) and, in the case of an oral
agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25
(formerly Code Ann. § 3-706).”).
18
We note that, in Coe v. Proskauer Rose, LLP, 314 Ga. 519 (878
SE2d 235) (2022), we parenthetically quoted the language from
Armstrong discussed above to support a statement that “the statute
of limitation for legal malpractice claims is set out in OCGA § 9-3-25.” Coe, 314 Ga. at 524-525 (2) (citing Armstrong, 311 Ga. at 793 (1)
n.4).9 But as with Armstrong itself, we do not read Coe as
contradicting our conclusion that, under Newell Recycling, a claim
for breach of contract for legal services can be governed by either
OCGA § 9-3-24 or OCGA § 9-3-25, depending on the circumstances.
Coe referenced the statute of limitation applicable to the plaintiffs’
legal-malpractice claim only by way of background to explain the
Court of Appeals’ belief that a four-year limitation period applied to
both the legal-malpractice claim and the claims for fraud and
9 In the instant case, the Court of Appeals relied on Coe’s parenthetical
quotation of Armstrong in determining which statute of limitation applied to
Plaintiffs’ tort-based legal-malpractice claims. See Titshaw, 368 Ga. App. at
268 (1). As noted above, however, Division 1 of the Court of Appeals’ opinion
falls outside the scope of our certiorari questions, and we take no position on
whether the court correctly determined that Plaintiffs’ tort-based legalmalpractice claims were governed by OCGA § 9-3-25’s four-year statute of
limitation.
19
negligent misrepresentation, before we turned to the issue at hand
— whether the Court of Appeals had erred in failing to separately
analyze the accrual date for the fraud and negligent
misrepresentation claims. See id. at 524-525 (2). And although a
written contract for legal services existed in Coe, whether OCGA § 9-3-25’s four-year statute of limitation applied to the legal-malpractice
claim was not an issue that the parties disputed below or that fell
within the scope of the questions we posed in granting certiorari. See
id. at 521, 524 (1) (explaining that the plaintiffs had argued in the
Court of Appeals about when the claims accrued and whether the
statutes of limitation were tolled, not about which statute of
limitation applied to the claims, and that we had granted certiorari
to consider whether the claims of fraud and negligent representation
were barred by the statute of limitation). Indeed, we expressly
stated in Coe that, because our order granting certiorari focused on
the plaintiffs’ claims for fraud and negligent misrepresentation, we
were not deciding statute-of-limitation issues regarding the
plaintiffs’ legal-malpractice claim. See id. at 524-525 (1) & (2) n.14
20
(clarifying that the Court of Appeals’ application of the statute of
limitation to the plaintiffs’ legal-malpractice claim “d[id] not fall
within the scope of the questions that we posed on granting the Coes’
petition for certiorari”). Accordingly, Coe’s reliance on Armstrong for
the proposition that “the statute of limitation for legal malpractice
claims is set out in OCGA § 9-3-25” is dicta. Id. at 524-525 (2). We
do not read Coe as broadly suggesting that all claims for breach of
contract for legal services are governed by OCGA § 9-3-25, and we
disapprove such an interpretation of the case.
(c) In Division 4 of its opinion, the Court of Appeals
concluded that Plaintiffs’ claim alleging that CPMT breached a
contract for legal services was due to be dismissed because it was
based on the same underlying conduct as, and therefore
“duplicative” of, Plaintiffs’ tort-based legal-malpractice claim
against CPMT. See Titshaw, 368 Ga. App. at 269-270 (2), (4). And,
as noted above, the Court of Appeals had previously concluded in
Division 1 of its opinion that Plaintiffs’ tort-based legal-malpractice
claim against CPMT was barred by OCGA § 9-3-25’s four-year
21
statute of limitation. See id. at 268-269 (1).
Why the Court of Appeals believed the allegedly “duplicative”
nature of the breach-of-contract claim warranted dismissal is
unclear. When read in context, the court’s opinion is susceptible of
two interpretations. But as explained below, regardless of which
interpretation is correct, the Court of Appeals’ reasoning was
flawed.
First, Division 4 of the Court of Appeals’ opinion reasonably
may be interpreted as concluding that Georgia law prohibits
plaintiffs from simultaneously pursuing different causes of action
based on the same underlying conduct. This is because, in
concluding that the breach-of-contract claim was duplicative of the
tort-based legal-malpractice claim, the Court of Appeals cited
Smiley v. Blasingame, Burch, Garrard & Ashley, P.C., 352 Ga. App.
769, 776 (2) (835 SE2d 803) (2019), and Oehlerich v. Llewellyn, 285
Ga. App. 738, 741 (2) (647 SE2d 399) (2007). See Titshaw, 368 Ga.
App. at 270 (4). And Smiley and Oehlerich belong to a line of Court
of Appeals cases holding that Georgia law prohibits a plaintiff from
22
maintaining separate causes of action where each cause of action is
based on the same conduct, the same damages, and a breach of a
duty arising from the same source.10
10 See Smiley, 352 Ga. App. at 776 (2) (835 SE2d 803) (2019) (“Where, as
here, the breach of fiduciary duty claim arises from the same source as the
legal malpractice and misrepresentation claim (the attorney-client
relationship), was allegedly breached by the same conduct (the failure to
disclose the additional settlement funds), and the damages flowing from each
claim are no different from the alleged legal malpractice, Georgia law provides
that the claims for breach of fiduciary duty and misrepresentation cannot be
asserted separately.”); Stewart v. McDonald, 347 Ga. App. 40, 50 (3) (815 SE2d
665) (2018) (holding that “[the plaintiff’s] claims for damages for fraud and
breach of fiduciary duty are factually based upon [the defendant’s] breach of
his fiduciary duties to [the plaintiff] in the performance of his duties as a
lawyer, so the claims are duplicative of [the plaintiff’s] legal malpractice
claim”), disapproved of by Coe, 314 Ga. 519; Anderson v. Jones, 323 Ga. App.
311, 318 (2) (745 SE2d 787) (2013) (affirming a grant of summary judgment
against the plaintiff on a breach-of-fiduciary duty claim where “the claim
duplicated her legal malpractice claim” in that “the duties arose from the same
source (that is, the attorney-client relationship), were allegedly breached by
the same conduct, and allegedly caused the same damages”), disapproved of by
Coe, 314 Ga. 519; Oehlerich, 285 Ga. App. at 740-741 (2) (holding that the
plaintiff could not maintain separate causes of action for “breach of fiduciary
duty, breach of contract, and breach of the implied duty of good faith and fair
dealing” because they were all “based on the establishment of a fiduciary
attorney-client relationship that he claim[ed] was breached” in a legalmalpractice claim and therefore were “simply duplications of this legal
malpractice claim”); Griffin v. Fowler, 260 Ga. App. 443, 449 (2) (579 SE2d 848)
(2003) (noting that the plaintiff could not have a “separate cause of action for
fraud apart from [a] malpractice claim” where “the damages flowing” from
those claims were “no different”), disapproved of by Coe, 314 Ga. 519; McMann
v. Mockler, 233 Ga. App. 279, 282 (3) (503 SE2d 894) (1998) (holding that the
plaintiff could not maintain separate “claims for breach of contract, breach of
implied duty of good faith and fair dealing, and breach of fiduciary duty [that]
were merely duplications of her malpractice complaint”). These cases are
disapproved as stated below.
23
To the extent that the Court of Appeals concluded that
Plaintiffs were not permitted to maintain separate claims for legal
malpractice and breach of contract based on the same conduct, it
erred. Under Georgia law, plaintiffs are permitted to pursue
alternative theories of relief based on causes of action with different
elements, even when those causes of action arise from the same
underlying conduct. See Coe, 314 Ga. at 528-529 (2) (rejecting an
argument that the plaintiffs could not simultaneously pursue a
legal-malpractice claim and other claims with different elements
that were based on “the same conduct,” “the same damages,” and
“duties ar[ising] from the same source (that is, the attorney-client
relationship)” (citation and punctuation omitted)).11 And we have
11 See also Traub v. Washington, 264 Ga. App. 541, 544 (2) (591 SE2d
382) (2003) (rejecting an argument that the plaintiff could not pursue
“duplicative” claims for both breach of fiduciary duty and legal malpractice
because a plaintiff has “the right to plead alternative theories”); OCGA § 9-11-8 (e) (2) (“A party may set forth two or more statements of a claim or defense
alternatively or hypothetically, . . . [and] may also state as many separate
claims or defenses as he has . . . .”); OCGA § 9-11-15 (c) (presuming that more
than one claim can “arise[ ] out of the [same] conduct” in providing that new
claims asserted in an amended pleading that are based on the same conduct at
issue in the original pleading relate back to the date of the original pleading).
Cf. Atlanta Women’s Specialists, LLC v. Trabue, 310 Ga. 331, 337 (2) (850 SE2d
24
already disapproved cases from the Oehlerich/Smiley line of
precedent to the extent that they suggest “claims are always
duplicative of legal malpractice claims if based on the same facts.”
Id. at 529 (2). Today, we reiterate that such cases are disapproved.
And we further clarify that plaintiffs are not prohibited from
simultaneously pursuing different causes of action with different
elements simply because the claims involve the same underlying
conduct, the same damages, and duties deriving from the same
source.
Second, Division 4 of the Court of Appeals’ decision reasonably
may be interpreted as concluding that a statute of limitations that
bars one cause of action necessarily bars other causes of action based
on the same conduct, even when those other causes of action have
different elements. Under this reading of the Court of Appeals’
opinion, it concluded in Division 4 that the breach-of-contract claim
was barred by OCGA § 9-3-25 because the claim was “duplicative”
748) (2020) (noting that a “plaintiff may plead alternative and inconsistent
theories in his complaint” (citation and punctuation omitted)).
25
of the legal-malpractice claim that it had concluded in Division 1
was barred by that statute of limitation. Titshaw, 368 Ga. App. at
268-270 (1), (4). But to the extent that this was the Court of Appeals’
reasoning, it too was erroneous.
As we have previously explained, claims “based on the same
facts” underlying a legal-malpractice claim will not necessarily “fail
on statute of limitation grounds in the same way as the legal
malpractice claim.” Coe, 314 Ga. at 529 (2). Rather, which statute of
limitation applies to a claim turns on the nature of the cause of
action at issue. See OCGA § 9-3-20 et seq. (specifying the limitations
periods for different types of causes of action). See also Newell
Recycling, 288 Ga. at 238 (explaining how to “determin[e] which
statute of limitation applies” to a breach-of-contract claim based on
the nature of the claim). And even when the same limitation period
applies to more than one claim and the claims “ar[i]se from the same
series of transactions,” each claim must be “analyzed separately to
determine when the right of action accrued for that particular
claim.” Coe, 314 Ga. at 525 (2). See Daniel v. Georgia R.R. Bank &
26
Tr. Co., 255 Ga. 29, 30 (334 SE2d 659) (1985) (“Various causes of
action in tort arising from the same set of facts may commence
running at different times depending on the nature of the several
causes of action involved, and the fact that the statute has run as to
one does not necessarily mean that the statute has run as to all.”).
For these reasons, the Court of Appeals erred in concluding
that, because the breach-of-contract-for-legal-services claim against
CPMT was based on the same underlying conduct as the legalmalpractice claim against CPMT, the trial court should have
dismissed the breach-of-contract claim.
(d) To determine whether the trial court properly denied
CPMT’s motion to dismiss the breach-of-contract-for-legal-services
claim as barred by the statute of limitation, the Court of Appeals
should have instead considered the two legal questions set out below
under the well-established motion-to-dismiss standard, which
provides that a court may grant a motion to dismiss only if,
tak[ing] the allegations in the complaint as true and
resolv[ing] all doubts in favor of the plaintiff[,] . . .
(1) the allegations of the complaint disclose with certainty
27
that the claimant would not be entitled to relief under any
state of provable facts asserted in support thereof; and (2)
the movant establishes that the claimant could not
possibly introduce evidence within the framework of the
complaint sufficient to warrant a grant of the relief
sought.
Wise Bus. Forms, Inc. v. Forsyth County, 317 Ga. 636, 644 (2) (893
SE2d 32) (2023) (citations and punctuation omitted).
When determining whether to grant a motion to dismiss a
breach-of-contract claim as barred by the statute of limitation, the
threshold question is which statute of limitation applies to the claim.
As explained in Division 3 (a) above, OCGA § 9-3-24’s six-year
limitation period governs a breach-of-contract-for-professionalservices claim premised on a breach of a duty arising directly from
a written contract with the defendant — including a breach of a duty
that is implied from the contract as a matter of law. By contrast,
OCGA § 9-3-25’s four-year limitation period governs a breach-ofcontract-for-professional-services claim premised on a breach of an
oral agreement or a breach of a duty that does not arise directly from
a written contract with the defendant. Thus, to determine which
28
statute of limitation applies to a plaintiff’s breach-of-contract-forprofessional-services claim at the motion-to-dismiss stage, a court
must ask whether the allegations in the complaint disclose with
certainty that the breach alleged by the plaintiff could not be a
breach of any duty directly arising from a written contract with the
defendant. And only if the plaintiff’s allegations show that the
plaintiff could not establish that the breach of contract that the
plaintiff alleges is a breach of a duty arising directly from a written
contract with the defendant should the court apply OCGA § 9-3-25,
rather than OCGA § 9-3-24, to the claim.
After determining which statute of limitation applies to a
plaintiff’s breach-of-contract claim, a court ruling on a motion to
dismiss the claim as barred by the statute of limitation must
consider whether it is possible, within the framework of the
complaint, for the plaintiff to prove that the breach-of-contract claim
was filed within the applicable limitation period. Only if it is certain
that the plaintiff cannot make such a showing should the court grant
the motion to dismiss the breach-of-contract claim as barred by the
29
statute of limitation. See Wise Bus. Forms, 317 Ga. at 644 (2).
Because the Court of Appeals did not apply these legal
principles in reversing the trial court’s denial of CPMT’s motion to
dismiss Appellant’s breach-of-contract-for-legal-services claim, we
vacate Division 4 of the Court of Appeals’ opinion. And as explained
above, because a conflict in precedent would arise if we vacated
Division 4 but not Division 2 of the Court of Appeals’ opinion, we
exercise our discretion to vacate Division 2 as well. The cases are
remanded for further proceedings consistent with this opinion.
Judgments vacated and cases remanded. All the Justices
concur.
30
PINSON, Justice, concurring.
When this Court reviews decisions of the Court of Appeals on
certiorari, we often review only a part of the decision below. See, e.g.,
Melancon v. State, S23G1128, 2024 WL 4204624 (Ga. Sept. 17, 2024)
(reviewing conclusion that evidence was sufficient to support
conviction, but not conclusion that trial counsel did not render
ineffective assistance). In those cases, if we conclude that the Court
of Appeals erred with respect to the portion of the decision under
review, we typically write an opinion explaining why we think that,
and then issue a judgment that vacates or reverses the Court of
Appeals’ judgment and remands for further proceedings as needed.
See id. at *1. In rare cases, however, we have also said in our
opinions that we are vacating or reversing not only the judgment,
but also specific divisions of the Court of Appeals’ opinion below.
Although I have before joined and even authored opinions that
include that additional language, I have come to believe that such
language does not accurately reflect the effect of our decisions. I
write separately to explain what I think that language actually
31
means, and to suggest that we use more precise language going
forward.
1. That explanation mostly has to do with the different
functions of judgments and opinions, so let’s start there.
Speaking generally, a judgment is the mechanism through
which a court resolves legal disputes. Parties come before a court to
settle a controversy about their relative rights and obligations under
the law, and the court exercises the judicial power to settle those
rights and obligations in a binding way. See Sons of Confederate
Veterans v. Henry County Bd. of Commissioners, 315 Ga. 39, 47-48
(2) (a) (880 SE2d 168) (2022). That power is formally exercised —
and thus the parties’ rights and obligations are formally settled —
through the entry of a judgment. See Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 219 (115 SCt 1447, 131 LEd2d 328) (1995)
(explaining that “a judgment conclusively resolves the case” because
“a ‘judicial Power’ is one to render dispositive judgments” (quoting
Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev.
905, 926 (1990)). See also, e.g., JUDGMENT, Black’s Law Dictionary
32
(12th ed. 2024) (defining a judgment as the “final determination of
the rights and obligations of the parties in a case”); 1 Henry
Campbell Black, A Treatise on the Law of Judgments § 1, at 2 (1st
ed. 1891) (“We may therefore define a judgment as the
determination or sentence of the law, pronounced by a competent
judge or court, as the result of an action or proceeding instituted in
such court, affirming that, upon the matters submitted for its
decision, a legal duty or liability does or does not exist.”). Put simply,
when a court enters a judgment granting or denying the relief
sought, it “settle[s] authoritatively what is to be done” about the
controversy at issue. Edward A. Hartnett, A Matter of Judgment,
Not a Matter of Opinion, 74 NYU L. Rev. 123, 127 (1999) (alteration
in original) (quoting Larry Alexander & Frederick Schauer, On
Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359,
1377 (1997)). See also 3 William Blackstone, Commentaries *396
(“The judgment, in short, is the remedy prescribed by law for the
redress of injuries; and the suit or action is the vehicle or means of
administering it.”).
33
Unlike judgments, opinions do not resolve the controversy
before the court. Instead, an opinion expresses a court’s reasons for
its judgment. See, e.g., Harnett, 74 NYU L. Rev. at 126 (“The
operative legal act performed by a court is the entry of a judgment;
an opinion is simply an explanation of reasons for that judgment.”);
Charles A. Sullivan, On Vacation, 43 Hous. L. Rev. 1143, 1155
(2006) (“[T]he judgment is the action the court takes to resolve the
case before it; the opinion explains and justifies the court’s action.”);
Gary Lawson & Christopher D. Moore, The Executive Power of
Constitutional Interpretation, 81 Iowa L. Rev. 1267, 1328 (1996)
(“Judgments are often accompanied by opinions, which express the
reasons that lie behind the judgment.”). To use Judge Easterbrook’s
words, a judgment supplies “the binding force of a decision,” while
the opinion supplies “the rule of decision that produced it.”
Easterbrook, 40 Case W. Res. L. Rev. at 926. That function is by no
means unimportant: For the case before the court, disclosing the
reasons for the court’s decision gives guidance to the lower courts
and parties as they move forward with the litigation. And beyond
34
the case itself, the reasons set out in an appellate opinion that are
necessary to the court’s judgment become holdings that are binding
precedent within the judicial system. See Ga. Const. of 1983, Art.
VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind
all other courts as precedents.”); In the Interest of R.J.A., 316 Ga.
822, 824 (890 SE2d 698) (2023) (Pinson, J., concurring in the denial
of certiorari) (“[T]he universe of things that are potentially
necessary to an appellate court’s decision—and thus make up its
holding—is contained within that court’s opinion.”). But when it
comes to resolving the controversy before the court, it is the
appellate court’s judgment, not its opinion, that gets the job done.
2. Given the respective functions of judgments and opinions,
what is this Court doing, and not doing, when it reviews a decision
of the Court of Appeals on certiorari?
First, judgments. Because the entry of a judgment is “[t]he
operative legal act performed by a court,” appellate courts act
through judgments, too. Hartnett, 74 NYU L. Rev. at 126. So when
this Court reviews the decision of a lower court, including the Court
35
of Appeals, we are ultimately reviewing and acting on the court’s
judgment, not its opinion. See Sullivan, 43 Hous. L. Rev. at 1155
(“Although our citation system seems to suggest that what is being
affirmed, reversed, or vacated is the opinion of the court being cited,
what is formally at stake is the lower court’s judgment, not its
opinion.”). Indeed, we know this to be true because “when an
appellate court disagrees with a lower court’s opinion, but agrees
with its judgment, it affirms rather than reverses.” Hartnett, 74
NYU L. Rev. at 126. And if that’s not enough evidence, just look to
the decretal language at the end of this Court’s opinions, which, with
the exception of dismissing an appeal for lack of jurisdiction, always
states what action this Court takes with respect to the lower court’s
judgment — either affirming, modifying, vacating, or reversing the
judgment, in whole or in part. See, e.g., infra. See also Sullivan, 43
Hous. L. Rev. at 1156. (“With respect to this core function of dealing
with judgments, . . . . the reviewing court has only five options:
dismiss the appeal, which effectively affirms the judgment below;
explicitly affirm that judgment; modify the judgment; reverse that
36
judgment; or vacate it.”). By issuing a judgment affirming or
rejecting the lower court’s judgment, an appellate court settles
authoritatively whether the lower court correctly determined the
rights and obligations of the parties before it, and if not, sets the
lower court on the right track to doing so.
The effect of a decision of this Court on a lower court’s
judgment is fairly straightforward. If we affirm the judgment, that
judgment’s resolution of the controversy at issue — say a grant of
summary judgment — remains in force. On the other hand, if we
vacate or reverse a judgment, that judgment is set aside, and so on
remand, the lower court must enter a new judgment consistent with
whatever guidance we have given in our opinion. 12
12 A judgment is vacated and thus set aside whether it is “vacated” or
“reversed.” A reversal of a judgment is simply a subset of a vacatur that
indicates to the lower courts that the higher court has determined that the
opposite judgment must be entered instead. Compare, e.g., First Acceptance
Ins. Co. of Ga. v. Hughes, 305 Ga. 489 (826 SE2d 71) (2019), on remand at 353
Ga. App. 320, 320 (836 SE2d 634) (2019) (reversing the judgment of the Court
of Appeals, which on remand said that, following reversal, “our decision . . . is
vacated” and then adopted “the judgment of the Supreme Court [as] the
judgment of this court”), with WS CE Resort Owner, LLC v. Holland, 315 Ga.
691 (884 SE2d 282) (2023), on remand at 368 Ga. App. 873 (891 SE2d 873)
(2023) (vacating the judgment of the Court of Appeals, which then remanded
37
The effect of a decision of this Court on a lower court’s opinion,
however, is different. Because appellate courts review and act on a
lower court’s judgment, not its opinion, our decision — whether it
affirms, vacates, or reverses the judgment below — does not act
directly on the lower court’s opinion itself, at least not formally. Just
as an affirmance of a judgment does not necessarily stamp a lower
court’s opinion with full approval, see, e.g., WMW, Inc. v. Am. Honda
Motor Co., 291 Ga. 683, 683 (733 SE2d 269) (2012) (“[W]hile we
disagree with the rationale of the majority opinion below, it reached
the right result, and we therefore affirm the Court of Appeals’
to the trial court to apply in the first instance the test articulated by the
Supreme Court). See also Hon. Jon O. Newman, Decretal Language: Last
Words of an Appellate Opinion, 70 Brook. L. Rev. 727, 728 (2005) (explaining
basic difference between reversal and vacatur, but noting disagreement about
where to draw the line between one and the other).
In cases where an appellate court reviews multiple parts of a lower
court’s decision, the court might also issue a judgment that affirms the
judgment in part and vacates or reverses the judgment in part. For example,
in Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323 (801 SE2d 24) (2017),
the Court of Appeals concluded that a jury was authorized to find the
defendant liable for premises liability but that erroneous pretrial rulings on
apportionment required a full retrial. On certiorari review, we agreed with the
Court of Appeals’ conclusion on liability, but we concluded that the
apportionment error required a retrial only as to apportionment, so we
affirmed the judgment in part and reversed it in part. See id. at 341 (III).
38
judgment.”), vacatur or reversal of a judgment does not mean that
the accompanying opinion itself is set aside. (For evidence of that
conclusion, consult our reporters, where Court of Appeals opinions
that have been vacated or reversed by this Court remain published
and searchable in electronic databases.) Instead, when this Court
vacates or reverses a judgment of the Court of Appeals, its effect is
to strip the opinion accompanying that judgment of binding
precedential effect. See County of Los Angeles v. Davis, 440 U.S. 625,
634 n.6 (99 SCt 1379, 59 LEd2d 642) (1979) (“Of necessity our
decision ‘vacating the judgment of the Court of Appeals deprives
that court’s opinion of precedential effect.’”). This makes sense: if
reasoning in an opinion becomes binding precedent because it is
necessary to a judgment, that reasoning ceases to be binding when
the underlying judgment no longer exists.13
13 In referring to the precedential effect of the opinion, I mean to address
only whether the holdings of the opinion are binding precedent for future cases,
not any effect on law of the case, which binds the parties in the current case. If this Court vacates or reverses a judgment below, but our decision leaves a
portion of the Court of Appeals’ decision undisturbed, the courts below would
not be free to reconsider that portion of the decision. Instead, on remand, the
39
This understanding of the effect of our decisions also makes
sense in light of our constitutional role. That role, just like every
court in our constitutional system, is limited to resolving the
controversy between the parties who come before us. Sons of
Confederate Veterans, 315 Ga. at 50 (2) (a) (“We recognized early in
our Court’s history that th[e judicial] power is limited to deciding
genuine ‘controversies.’”). We do that job on appeal by reviewing
and, if needed, correcting judgments, not by grading, or modifying,
or erasing opinions. Of course, in reviewing a judgment, we may
express disagreement with the opinion below, or even precedents
from other cases, but even then, we do so only as needed to reach
and explain our decision. Indeed, even when a lower court’s opinion
is stripped of its precedential effect, that consequence is generally a
side effect of the core exercise of judicial power in the case, which is
expressed through the vacatur of the judgment below.
Court of Appeals would issue a new decision consistent with ours, and the
undisturbed portion of the Court of Appeals’ original decision would be law of
the case. See, e.g., Sec. Life Ins. Co. of Am. v. Clark, 273 Ga. 44, 46-47 (1) (535 SE2d 234) (2000).
40
In short, when this Court reviews a decision of the Court of
Appeals on certiorari, we formally review and act upon the judgment
below, not the opinion. If we agree that the judgment that the Court
of Appeals ultimately reached is correct, we affirm the judgment. If
we disagree with the judgment, we vacate or reverse it, in whole or
in part, and we remand the case to the Court of Appeals for further
proceedings. And when a judgment of the Court of Appeals is
vacated or reversed, the opinion below is deprived of its precedential
effect, but it is not erased or set aside.
3. This brings me to the language we use to describe the effect
of our decisions reviewing decisions of the Court of Appeals. In the
lion’s share of such decisions, we include decretal language at the
end of the opinion that properly reflects the effect of the decision on
the judgment below — affirming, modifying, vacating, or reversing
that judgment, in whole or in part — and gives further direction for
remand as needed. But sometimes, we will include somewhere in our
opinion a separate statement purporting to “vacate” or “reverse” a
specific “division” of the Court of Appeals’ opinion. I’ll offer some
41
thoughts on how best to understand this language and what, if
anything, it might be doing.
To begin with, I hope the discussion above makes clear enough
what I think this “vacating divisions” language does not mean.
Because judgments are the operative legal act through which we
exercise core judicial power, our decisions formally address the
judgments of lower courts, not any opinions that may accompany
their judgments. And although vacating or reversing a judgment
below deprives an accompanying opinion of precedential effect, it
does not somehow erase or set aside that opinion. So I don’t think
this additional language can be taken literally to mean that this
Court is formally modifying, revising, erasing, or setting aside
specific divisions of the Court of Appeals’ opinion, or even ordering
as much.
So what might this language mean instead? It may be that this
language has been used on occasion not to describe the formal effect
of our decision on the Court of Appeals’ decision, but instead as a
shorthand for what portions of the Court of Appeals’ decision we
42
have addressed — the idea being to guide the Court of Appeals on
remand. If that is the aim, we should take care in when and how we
give such guidance.
For starters, we should be mindful that we have already given
the Court of Appeals guidance on how to address the effect of our
decisions on remand. In Shadix v. Carroll County, 274 Ga. 560, 563
(1) (554 SE2d 465) (2001), we said that “the Court of Appeals, when
considering the effect of a reversal from this Court, should not look
for nomenclature in our opinion to define the scope of our ruling,”
because “[n]o such ‘magic words’ are required to circumscribe our
reversals.” We further explained that when this Court reverses a
decision of the Court of Appeals “without considering or addressing
a division of that opinion” — a common occurrence on certiorari
review — “we do not determine our reversal’s impact upon that
particular division,” but instead “leave it to the Court of Appeals to
determine what impact, if any, our reversal has upon that particular
division.” Id. And we concluded with express directions for
addressing the reversal of a decision on remand: (1) “read this
43
Court’s opinion within the context of the opinion being reversed”; (2)
“determine whether any portions of the opinion being reversed were
neither addressed nor considered by the Supreme Court”; and (3)
“enter an appropriate disposition with regard to those portions that
is consistent with the issues addressed and considered by this
Court.” Id. at 563-564. In other words, we have told the Court of
Appeals not to look for “magic words” that say what parts of their
opinion are implicated; that this Court does not determine the
impact of our decisions on the opinions below (as distinct from the
judgments); and that we leave it to the Court of Appeals to do that
on remand and, in light of that determination, enter an appropriate
disposition. In my view, that guidance is clear and sensible, and it
generally puts responsibility for addressing the effect of our decision
in the right hands: in keeping with this Court’s role as the reviewing
court, we review the decision before us and explain whether and how
the Court of Appeals erred, but it is left to the Court of Appeals on
remand to determine what is left in the case at that stage for the
court to consider (or reconsider) and decide.
44
That said, I do not understand Shadix to preclude this Court
from offering limited and specific guidance as to which portion of the
Court of Appeals’ reasoning is the focus of our decision. We might do
that, for example, in a case like this one, where we have jurisdiction
to review only one of multiple judgments, and so we need to be clear
which decision and reasoning is the subject of our review. But in
such cases, we should be careful to give that guidance using
language that is both precise and consistent with our past guidance
for applying our decisions on remand. Rather than simply
purporting to “vacate” or “reverse” certain divisions of the opinion
below, we might say instead that the judgment below is vacated
because the reasoning in those specific divisions was in error, and
we leave it to the Court of Appeals on remand to determine whether
any of its other holdings must be reconsidered in light of our opinion.
One other possible meaning might be ascribed to this “vacating
divisions” language. When the basis for vacating or reversing a
judgment of the Court of Appeals is a disagreement with or
disapproval of reasoning of the Court of Appeals that is contained in
45
a specific division of its opinion, this Court might say that it is
“vacating” or “reversing” that division to make clear that the
reasoning in that division is no longer binding precedent. I do not
think that language is stripping the division in such a case of
precedential effect as a formal matter because, as I mentioned
above, the accompanying opinion is already deprived of its
precedential effect through vacatur of the judgment. 14 But because
that precedent-destroying effect of vacatur is implicit, including
such language might be used to signal to readers more clearly just
which reasoning is infirm and should not be relied on. If that is the
14 Although it is thus not necessary to add this language to deprive an
opinion of further precedential effect in cases where this Court is already
vacating the judgment below, language similar in kind might well be used to
strip a division or opinion of precedential value in a case where we ultimately
affirm the judgment. See, e.g., Fulton County v. Ward-Poag, 310 Ga. 289 (849
SE2d 465) (2020) (disapproving of Court of Appeals’ reasoning creating a
bright-line rule that a party takes consistent positions, and thus lacks intent
to deceive the court system, when the party amends a bankruptcy schedule to
include a previously undisclosed asset, but nevertheless affirming the Court of
Appeals’ judgment and its ultimate conclusion that summary judgment was
unwarranted in the case because genuine issues of fact remained). In such a
case, without language that clearly indicates our disagreement with particular
reasoning of the Court of Appeals that is within the scope of our review on
certiorari, courts might inadvertently rely on that disapproved reasoning in a
future case.
46
purpose for including such language, however, we might again
choose language that does not give the misimpression that our
decision is taking some formal action with respect to the opinion
itself beyond the automatic stripping of its precedential effect that
vacatur already takes care of.
4. That leaves this case. For the reasons above, it would be
better not to say in our opinion here that we are “vacating” certain
divisions of the Court of Appeals’ opinion below, because we are not.
Instead, we should say that we disagree with (or disapprove of) the
reasoning in Division 4 of its opinion because, in reversing the trial
court’s denial of CPMT’s motion to dismiss Titshaw’s breach-ofcontract-for-legal-services claim, the court did not apply the correct
legal principles, which we set out in our opinion. The only thing
related to Division 4 that we are vacating is the judgment in Case
No. A23A0439, which that Division addresses. And because the
same reasoning the Court of Appeals applied in Division 4 appears
in Division 2 of Case No. A23A0410, we are vacating the Court of
Appeals’ judgment in that case as well. (We are exercising our
47
discretion to vacate that judgment even though the claim against
Geer addressed in Division 2 has been mooted by a settlement
between Titshaw and Geer, because leaving that judgment in place
would leave the Court of Appeals’ opinion as binding precedent in
conflict with our decision in this case. See WMW, Inc. v. Am. Honda
Motor Co., 291 Ga. 683, 685 (2) n.1 (733 SE2d 269) (2012) (noting
that settlement can moot an appeal but exercising discretion to
vacate the decision below to avoid “a judgment, unreviewable
because of mootness, from spawning any legal consequences”
(quoting United States v. Munsingwear, Inc., 340 U.S. 36, 41 (71 SCt
104, 95 LE 36) (1950)). I still join the Court’s opinion because I
understand that language to mean what I have just said here. But
in the future, I hope we will avoid such imprecise language and just
say what we mean.
*
If you’ve made it to the end of this separate writing, you might
be left with the impression that I’m just quibbling over word choice.
Maybe so. But words uttered by courts have power. Our Constitution
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vests courts with the power to settle definitively the rights and
obligations of the parties who appear before us. And although the
words we use in our opinions don’t do that settling as a formal
matter, they justify how those rights and obligations are settled, and
they give rise to precedent that is binding throughout our State’s
judicial system. These functions are central to the rule of law and
thus solemn responsibilities of every appellate court. Given the
stakes, the more care we take with our words, the better,
particularly when ours is the last word.
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