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Brito v. The Gomez Law Group LLC

The trial court erred in granting sua sponte summary judgment to the defendants on the issue of punitive damages, since the plaintiffs did not assert that claim in their complaints and they did not have notice and an opportunity to be heard on that issue.

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Napoleon, Fanny and Carlos Brito appeal the grant of partial summary judgment in favor of The Gomez Law Group, LLC and Debra Gomez collectively, “Gomez” on claims for attorney fees and punitive damages in this legal malpractice action. For the reasons set forth below, we affirm in part and reverse in part. “On appeal of a grant of summary judgment, we conduct a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party.”1 So viewed, the record shows that on July 19, 1996, Napoleon and Fanny Brito and their children Carlos and Janet Brito were in an automobile accident while using equipment obtained from a U-Haul dealer to tow a vehicle. The Britos engaged a Florida law firm to pursue a negligence action against U-Haul, and in July 1998 the Florida firm associated Gomez to bring the action in Georgia. On July 17, 1998, Gomez filed a complaint against U-Haul Corporation on behalf of the Britos in superior court.

Over the next four years, Gomez pursued the possibility of mediation and sent demand letters to U-Haul, but nothing in the record shows that Gomez served any discovery requests or took any depositions. By June 13, 2002, Gomez was aware that the Britos’ action against U-Haul had been placed on the October 2002 trial calendar. In September 2002, Gomez sought a continuance, which the court denied. On October 22, 2002, Gomez voluntarily dismissed the case without prejudice.

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