[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-13642

Non-Argument Calendar

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D.C. Docket No. 1:14-cv-00193-MHC

LUCKY CAPITAL MANAGEMENT, LLC, 

 Plaintiff-Appellant,

versus

MILLER & MARTIN, PLLC, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(September 18, 2020)

Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Lucky Capital Management, Inc. (“Lucky”) appeals the grant of summary 

judgment in favor of Miller & Martin, PLLC regarding their legal malpractice 

claims. After a review of the record, we affirm. 

I. Background

Procedural History 

This appeal is the second occasion this case has been before this Court. In 

January 2014, Lucky filed its initial complaint against Miller & Martin. 

Subsequently, it filed an amended complaint which alleged six counts of 

misconduct, including fraud, legal malpractice, civil conspiracy, and breach of 

fiduciary duty. The district court dismissed three of Lucky’s claims, including its

legal malpractice claim. The district court dismissed that claim because it 

concluded that the malpractice claim was not assignable to Lucky, which had not 

directly employed the law firm. After discovery, the district court granted

summary judgment to Miller & Martin on the remaining counts. Lucky appealed 

the grant of summary judgment and dismissal of its claims. 

On appeal, a panel of this Court affirmed the grant of summary judgment 

and dismissal of most of Lucky’s claims but reversed the dismissal of the legal 

malpractice and civil conspiracy claims. See Lucky Capital Mgmt., LLC v. Miller 

& Martin & Martin, PLLC, 762 F. App’x 719, 723, 727 (11th Cir. 2019). As to 

the legal malpractice claim, the panel concluded that it was based on “alleged 

professional negligence,” rather than intentional fraud, and therefore was 

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assignable under Georgia law. See id. at 723–24 (citing O.C.G.A. § 44-12-24). 

Thus, this Court remanded the case to the district court to consider the merits of the 

legal malpractice claim in the first instance. On remand, the district court granted 

summary judgment in favor of Miller & Martin on that claim, and this appeal 

followed.1

 

Factual Background 

We draw the following summary of the facts leading up to this litigation 

from our prior opinion in this case: 

In April 2010, [the company] nValeo engaged Miller & Martin & 

Martin to perform legal services. Miller & Martin & Martin did not 

act as general counsel to nValeo, and it billed nValeo for its legal 

services on an hourly basis. Jeffrey Ritchie was the managing member 

of nValeo. W. Scott McGinness, Jr. and R. Tyler Hand were among 

the Miller & Martin & Martin attorneys who worked on nValeo 

matters.

In May 2010, principals of what was to become Lucky began 

negotiations with nValeo for Lucky to purchase a membership interest 

in nValeo. Lucky conducted these negotiations through its counsel 

and nValeo did the same through Miller & Martin & Martin. The 

parties reached an agreement, which culminated in nValeo and Lucky 

entering into a Membership Interest Purchase Agreement (the 

“MIPA”) on June 7, 2010. Pursuant to the MIPA, Lucky paid 

$500,000 for a 2% membership interest in nValeo.

1 Miller & Martin also moved for summary judgment on the civil conspiracy claim, 

which this Court had remanded to the district court following its improper dismissal at the 

motion to dismiss stage. Lucky did not oppose Miller & Martin’s motion for summary judgment 

as to that claim, and the district court granted it. Therefore, Lucky does not appeal the dismissal 

of the civil conspiracy claim. 

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On July 26, 2010, Lucky and nValeo entered into an Amended and 

Restated Membership Interest Purchase Agreement (the “AMIPA”). 

Under the AMIPA, Lucky acquired an additional 9% membership 

interest in nValeo by making four $500,000 investments in the 

company. In addition, the AMIPA imposed limits on compensation of 

nValeo’s officers and prohibited the payout of officers’ bonuses. The 

AMIPA did not contain any prohibition on nValeo making loans to its 

officers.

The MIPA and AMIPA contained identical provisions disclosing the 

lack of a financial track record for nValeo and the “substantial 

investment risks” in purchasing the membership interests. Despite 

this, Lucky did not inspect nValeo’s books before investing.

Between July and December 2010, Lucky invested a total of $2 

million in nValeo. The parties acknowledge that almost immediately 

after Lucky’s funds were deposited in nValeo’s bank account Ritchie 

began withdrawing those funds for his own personal use.

On September 6, 2010, nValeo’s Chief Operations Officer, Buddy 

Poole,2 sent an email to Hand, copying McGinness, stating:

Tyler I need to get the paperwork to record Jeff [Ritchie] 

taking out loans from the company which he has needed 

to do from time to time to get moved to Austin, Tx. 

Please give me a call on Tuesday so we can discuss the 

details. Thanks.

On September 28, 2010, Hand sent Poole a Revolving Line of Credit 

Promissory Note (the “Promissory Note”) for Ritchie’s signature. The 

Promissory Note purported to allow nValeo to loan Ritchie up to $2 

million.

In March 2011, Chad Smith, one of Lucky’s principals, reviewed the 

financial records of nValeo for the first time. He saw Ritchie’s 

withdrawals, which Poole had recorded. Smith confronted Ritchie 

about the withdrawals, and Ritchie admitted that he took over 

$800,000 and used at least part of the money for personal use. nValeo 

2 We note that some time in 2010, Poole became a part owner of nValeo. 

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never brought a product to market and went out of business. When 

the company failed, Lucky lost its investment. Lucky sued nValeo for 

its damages and, as part of the settlement of that litigation, nValeo 

assigned to Lucky any legal malpractice claim it might have against 

Miller & Martin & Martin. The underlying litigation followed.

Lucky Capital, 762 F. App’x at 721. 

On remand, Miller & Martin moved for summary judgment. Rather than 

submit new evidence to support its legal malpractice claim, Lucky chose to rely 

primarily on the affidavit of its expert witness, Thomas Scott, Esq., who concluded 

that Miller & Martin attorneys “failed to exercise ordinary care, skill and 

diligence,” in order to establish a sufficient factual controversy to survive 

summary judgment.3

 The district court found that this affidavit did not establish a 

genuine dispute of material fact and thus summary judgment for Miller & Martin

was appropriate. The only question for us on review is whether the district court 

was correct to say that the affidavit did not create a genuine dispute of material fact 

as to Lucky’s legal malpractice claim. 

II. Standard of Review

“We review a district court’s grant of summary judgment de novo, applying 

the same legal standards used by the district court.” Gerling Glob. Reinsurance 

Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233–34 (11th Cir. 2001). Summary 

3 Lucky also cited to portions of deposition testimony from nValeo and Lucky employees

that established the same facts at issue in the prior appeal. 

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judgment is appropriate when there is “no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

A fact is “material” if it “might affect the outcome of the suit under the governing 

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We “view the 

evidence and all factual inferences therefrom in the light most favorable to the 

party opposing the motion.” Burton v. City of Belle Glade, 178 F.3d 1175, 1187 

(11th Cir. 1999) (quoting Clemons v. Dougherty County, 684 F.2d 1365, 1369 

(11th Cir. 1982)). 

III. Discussion

Lucky argues that it presented sufficient evidence through the affidavit of its 

expert witness to support its theory of malpractice—that Miller & Martin should 

have realized Ritchie, nValeo’s managing member, was embezzling from nValeo

when Miller & Martin was asked by Poole, nValeo’s COO, to prepare a 

promissory note to document loans from nValeo to Ritchie. 

Lucky brings its legal malpractice claim under Georgia law. “In a legal 

malpractice action, the client has the burden of establishing three elements: 

(1) employment of the defendant attorney, (2) failure of the attorney to exercise 

ordinary care, skill and diligence, and (3) that such negligence was the proximate 

cause of damage to the plaintiff.” Fortson v. Hotard, 684 S.E.2d 18, 20 (Ga. App. 

2009) (quoting Perry v. Ossick, 467 S.E.2d 604, 606 (Ga. App. 1996)). “There is a 

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presumption that the legal services of an attorney are performed in an ordinarily 

skillful manner and the burden is on the one receiving such services to show a lack 

of due care, skill and diligence, in a malpractice action.” Rogers v. Norvell, 330 

S.E.2d 392, 386 (Ga. App. 1985). 

We agree with the district court that certain “findings . . . made by the 

appellate court” on the first appeal guide our consideration of the legal malpractice 

claim this time around. When this case was first before us on appeal, we 

specifically rejected Lucky’s contention that the evidence assembled—(1) a “vague 

voicemail” left by nValeo’s CPA for one of Martin & Miller’s attorneys asking 

how to classify the loans taken out by Ritchie and (2) testimony from Poole that 

failed to establish nValeo was not permitted to make loans to its executives—made 

Miller & Martin aware of Ritchie’s misappropriation of nValeo’s funds. See Lucky 

Capital, 762 F. App’x at 728–29; see also id. at 729 (“Lucky has failed to provide 

any evidence that Miller & Martin was aware of Ritchie’s misappropriations.”). 

Because the prior panel ruled that there was insufficient evidence to demonstrate 

knowledge or intent on the part of Martin & Miller with regard to Ritchie’s 

embezzlement of funds, the only theory of malpractice—and the one we found the 

complaint alleged, see id. at 724—which was available on remand was based on 

negligence. In other words, plaintiffs had to produce evidence that the attorneys 

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from Miller & Martin should have known that Ritchie was intending to steal money 

from nValeo. 

Lucky’s assembled evidence, however, does not demonstrate that the 

attorneys should have known that Ritchie’s “loans” from the company were 

fraudulent. We note that Lucky’s burden under Georgia law was heavy because 

Georgia recognizes that “the legal profession is at best an inexact science,” and so 

“a breach of duty arises only when the relevant, i.e., [sic] legal principles or 

procedures are well settled and their application clearly demanded, and the failure 

to apply them apparent; otherwise, an attorney acting in good faith and to the best 

of his knowledge will be insulated from liability for adverse results.” Hughes v. 

Malone, 247 S.E.2d 107, 111 (Ga. App. 1978). Nothing that Lucky presented 

demonstrated that Miller & Martin did not follow “well settled” legal principles or 

procedures. 

Lucky relied primarily4 on its expert affidavit submitted by Thomas Scott, 

Esq., to establish Miller and Martin’s negligence. An expert affidavit is required 

by Georgia law to file a claim of legal malpractice. See O.C.G.A. § 9–11–9.1. 

Lucky contends that by satisfying the requirements of Georgia law, its expert 

4 As noted supra, n. 2, the only other evidence cited by Lucky is the deposition testimony 

establishing the basic facts chronicled by our former panel. No new evidence was produced. 

Because the cited portions of depositions are not facts in dispute, and because the facts form the 

basis for the expert opinion, we do not address the duplicative evidence separately. 

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affidavit must be evaluated by a jury. In arguing that Scott’s expert conclusion on 

legal malpractice alone is sufficient to defeat the motion for summary judgment, 

Lucky confuses a necessary evidentiary condition for legal malpractice claims with 

a sufficient one. In fact, at least one Georgia court has explicitly held that “an 

affidavit which satisfies the pleading requirements of OCGA § 9–11–9.1 will not 

necessarily satisfy the evidentiary requirements of OCGA § 9–11–56.” Turner v. 

Kitchings, 406 S.E.2d 280, 281 (Ga. App. 1991). Thus, we are not bound to find a 

dispute of material fact merely because Lucky provided an affidavit from a legal 

malpractice expert. Instead, we examine the expert affidavit itself to see if a 

genuine dispute of material fact is presented. 

At the outset, we note that the primary conclusion of Scott’s affidavit—that 

Miller & Martin knew Ritchie was stealing money—is negated by our prior panel 

holding under the law-of-the-case doctrine. See Lucky Capital, 762 F. App’x at 

729; Stoufflet v. United States, 757 F.3d 1236, 1240 (11th Cir. 2014) (explaining 

that the “law-of-the-case doctrine” prevents “relitigation of issues that a court 

necessarily or by implication decided against the litigant” in a prior direct appeal). 

What is left in the affidavit is a cursory argument for negligence. According to 

Scott, Miller & Martin’s preparation of the promissory note was negligent because

nValeo’s operating agreements “prohibited” its managing members—such as 

Ritchie—from “withdrawing monies or assets from the company in excess of their 

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stated salaries and without the consent of other members,” and therefore, the 

September 6, 2010 email from Poole asking Hand to draft a promissory note put 

Miller & Martin on notice that Ritchie’s use of company funds was “improper.” 

The entire basis of Scott’s expert opinion was his interpretation of the AMIPA,

which is a legal question we review de novo. See Parris Props., LLC v. Nichols, 

700 S.E.2d 848, 852 (Ga. App. 2010). However, our prior panel (as well as the 

district court) concluded that the AMIPA did not, in fact, prohibit nValeo’s officers 

from taking out loans from the company. See Lucky Capital, 762 F. App’x at 728 

n.7 (concluding that “nValeo could properly make loans to its executives”). 

Furthermore, the record indicates that Miller & Martin were not general counsel to 

nValeo and only performed discrete tasks for them, such as drafting a promissory 

note. Therefore, given the limited scope of Miller & Martin’s representation, there 

is no evidence that the attorneys would have had any reason to be on guard against 

possible misappropriation of funds. See Barnes v. Turner, 606 S.E.2d 849, 

851(Ga. 2004) (lawyers are responsible to “take reasonable, legal steps to fulfill 

the client’s main, known objective” in their representation) (emphasis in original). 

Instead, the attorneys depended on representations from their client—in this case, 

Poole, a part owner and the COO of nValeo—to conduct their legal practice. For 

this reason, it was not negligent for Miller & Martin to prepare a legal document 

formalizing a loan not prohibited by nValeo’s governing documents at Poole’s 

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request. With no material facts in dispute, and with no evidence of negligence 

other than the conclusions in Scott’s expert affidavit, Lucky has not presented 

evidence of legal malpractice that establishes a dispute of material fact and thus 

cannot survive Miller & Martin’s motion for summary judgment. 

AFFIRMED. 

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