BENSON et al.
WARD; and vice versa.
MILLER, P. J., DOYLE and REESE, JJ.
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.
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.
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."
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.
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
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.
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.
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
these guiding principles in mind, we turn now to Benson's
and Ward's specific claims of error.
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.
"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." 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.
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." "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] ...