See Bielecki v. Boissel, 715 A.2d 571, 574 (R.I. 1998) (failure to amend did not affect validity of final judgment where adequate evidence presented). The hearing justice heard arguments on CUCF's summary judgment motion on April 4, 2006. Noting that this Court had not addressed the question of whether a closing attorney represents the lender and/or the mortgagor, the hearing justice was persuaded by a pair of foreign cases, Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618 (1985) and Kirby v. Chester, 174 Ga.App. 881, 331 S.E.2d 915 (1985), in which both courts relied upon the third-party beneficiary theory to conclude that a closing attorney owed a duty to a nonclient lender, irrespective of a formal attorney-client relationship. Rather than simply finding that CUCF was an intended beneficiary of Groff's actions, however, the hearing justice also concluded that Groff, in fact, represented both CUCF and the borrowers.
If Presidential could have liquidated the accounts receivable, notwithstanding the failure to obtain confirmation of the sale of the real estate, it follows that Presidential should have the right to sue for tortious conversion of the accounts receivable. In Kirby v. Chester, 174 Ga. App. 881, 331 S.E.2d 915 (1985), the Court addressed the remedies available to a creditor when another party's negligence caused the creditor to lose its additional collateral. In that case, the creditor loaned some money to the debtor in exchange for a security interest in two parcels of property.
"[U]nder certain circumstances, professionals owe a duty of reasonable care to parties who are not their clients, i. e., not in privity with them." Kirby v. Chester, 174 Ga.App. 881, 884 (2) (331 S.E.2d 915) (1985).
Brown v. Kinser, 218 Ga. App. 385, 386 ( 461 SE2d 564) (1995).Kirby v. Chester, 174 Ga. App. 881, 882 (1) ( 331 SE2d 915) (1985). Moreover, Old Republic's argument in this regard ignores the terms of the contract that it alleges appellees breached.
Id. at 36; Backus v. Chilivis, 236 Ga. 500, 502 (II) ( 224 SE2d 370) (1976).Legacy Homes, supra; Kirby v. Chester, 174 Ga. App. 881 ( 331 SE2d 915) (1985). In this case, there was no written contract between Young and James Williams.
(Citations omitted.) Williams v. Fortson, Bentley Griffin, 212 Ga. App. 222, 224 (1) (c) ( 441 SE2d 686) (1994) (but holding closing attorney did not owe duty to buyers regarding termite report); Kirby v. Chester, 174 Ga. App. 881, 884-885 (2) ( 331 SE2d 915) (1985) (borrower hired attorney to provide lender with certification that the borrower had valid title and that lender's lien would be first priority; lender could sue for malpractice because agreement was intended for lender's benefit); Simmerson v. Blanks, 149 Ga. App. 478, 481 (2) ( 254 SE2d 716) (1979) (attorney may be liable under a voluntary or gratuitous agency theory where that attorney, representing a party other than the plaintiff, gratuitously states that he will file financing statement that it is plaintiffs responsibility to file). Compare Legacy Homes v. Cole, 205 Ga. App. 34, 35 ( 421 SE2d 127) (1992) (closing attorney hired by selling agent owed no duty to sellers/vendors because attorney did not advise or assist them); McKenna Long Aldridge v. Keller, 267 Ga. App. 171, 173-174 (1) ( 598 SE2d 892) (2004) (alleged failure of law firm to investigate adequately its client's allegations before sending demand letter to adverse party did not give rise to
Additionally, a real property buyer who relied on an attorney's title certification of the property purchased has a cause of action against the attorney if the seller had no interest in the property. Kirby v. Chester, 174 Ga. App. 881, 884 (2) ( 331 SE2d 915) (1985). Finally, "[i]n a wrongful death case, the surviving spouse acts as the children's representative and owes them the duty to act prudently in asserting, prosecuting and settling the claim and to act in the utmost good faith."
See Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) ( 443 S.E.2d 670) (1994) (building patrons not beneficiaries of contract between security company and building owners); Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 349 (1)(d) ( 411 S.E.2d 75) (1991) rev'd on other grounds Lemonds v. Walton County Hosp. Auth., 212 Ga. App. 369 ( 441 S.E.2d 821) (1994) (patient and family were not beneficiaries of contract whereby hospital authority agreed to maintain medical facility for the indigent). Compare Kirby v. Chester, 174 Ga. App. 881, 884-886 ( 331 S.E.2d 915) (1985) (lender was third-party beneficiary of contract between attorney and borrower whereby attorney certified borrower's title to land which was to secure the loan). The trial court correctly held that the tenants were not third-party beneficiaries of the security agreement even though they may have benefitted from it.
It also ignores the fact that Montgomery took most of his legal fees directly out of the sons' share of the proceeds. Furthermore, Montgomery owed a duty of reasonable care to the sons as third-party beneficiaries of his relationship with Mrs. Wynn. See Kirby v. Chester, 174 Ga. App. 881, 884 (2) ( 331 S.E.2d 915) (1985); OCGA § 51-4-2. This enumeration lacks merit.
"The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract." OCGA § 9-2-20 (b); see Kirby v. Chester, 174 Ga. App. 881 ( 331 S.E.2d 915) (1985) (lender was third-party beneficiary of contract between attorney and borrower whereby attorney certified borrower's title to land which was to secure the loan). "The remedies available to the beneficiary are exactly the same as would be available to him if he were a contractual promisee of the performance in question."