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Benson v. Ward

Court of Appeals of Georgia, Second Division

October 30, 2017

BENSON et al.
v.
WARD; and vice versa.

          MILLER, P. J., DOYLE and REESE, JJ.

          REESE, JUDGE.

         Donald J. Ward filed a legal malpractice action against attorney Herbert W. Benson and his law firm, Herbert W. Benson, P. C. (collectively, "Benson"). The Superior Court of Tift County (the "trial court") denied both Benson's motion for summary judgment and Ward's motion for partial summary judgment. After the trial court denied Benson's motion for reconsideration, we granted his interlocutory application. Both parties appeal. For the reasons set forth, infra, we reverse the denial of Benson's summary judgment motion and dismiss the cross-appeal as moot.

         After 32 years of marriage, Ward moved out of the marital home and, represented by Benson, filed a divorce action. After a bench trial, at which both Ward and his ex-wife testified, the Superior Court of Cook County (the "divorce court") entered an order of divorce and final decree, which included a division of property. Ward sought review of the judgment, but the Supreme Court of Georgia remanded the case to the divorce court for a ruling on Ward's post-judgment motion for findings of fact. The divorce court amended its order on December 20, 2012, to include findings of fact and conclusions of law.

         Ward filed the underlying malpractice action based on Benson's failure to file a timely application for appellate review of the amended order. Ward alleged that "[t]he overwhelmingly disproportionate division of the marital estate constituted an abuse of discretion" by the divorce court and that Benson's "error barred [Ward] from the opportunity to successfully appeal his case."

         Benson moved for summary judgment, arguing that Ward's claim failed as a matter of law because he could not establish proximate cause in that he could neither prove that the Supreme Court would have found that the divorce court abused its discretion, nor that, if the Supreme Court had reversed the order of divorce, the divorce court on remand would have awarded him a greater share of the marital property. Ward filed a motion for partial summary judgment, asserting that, as a matter of law, he would have won his appeal based on the divorce court's erroneous legal conclusions and findings of fact and the disproportionate weight it placed on Ward's alleged adultery.

         The trial court denied both motions. In its order denying Ward's motion, the court stated "[t]he facts do not show that [Ward], on appeal, would have been successful in getting the case reversed at the Georgia Supreme Court, which is an essential element to the charges asserted in this case."

         Benson sought reconsideration of the denial of his motion, arguing that this finding supported his argument that he was entitled to summary judgment. The trial court denied Benson's motion for reconsideration on the ground that it had construed the facts in favor of Benson when considering Ward's motion and construed the facts in favor of Ward when considering Benson's motion.

         On appeal from the denial of summary judgment, we review the evidence de novo, construing all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.[1]

To prevail on a legal malpractice claim, a client must prove that (1) he employed the defendant attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) this failure was the proximate cause of damages to the client. To establish proximate cause, the client must show that but for the attorney's error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. The defendant attorney is entitled to summary judgment if he shows that there is an absence of proof adduced by the client on the issue of proximate cause.[2]

         With these guiding principles in mind, we turn now to Benson's and Ward's specific claims of error.

         1. Benson argues that the trial court erred in denying his motion for summary judgment because Ward failed to show that the Supreme Court would have found that the divorce court abused its broad discretion in equitably dividing the marital assets. We agree.

         The "determination of whether an appeal . . . would have been successful is a question of law, exclusively within the province of judges, and should [be] decided by the superior court in ruling on [Benson's] motion for summary judgment."[3] In considering whether the Supreme Court would have reversed the property division award had Benson perfected an appeal, we apply the same standard of review that would have been applied by that court.[4]

         "The trial court's division of marital property will be upheld as long as it falls within the court's broad discretion, and the court's factual findings are reviewed using the 'any evidence' rule, under which a finding supported by any evidence must be upheld."[5] "In the appellate review of a bench trial, [the appellate court] will not set aside the trial court's factual findings unless they are clearly erroneous, and [the appellate court] ...


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