[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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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.

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Appeal from the United States District Court

for the Southern District of Georgia

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(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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