BARNES, P. J., MERCIER and BROWN, JJ.
Rollins ("Rollins") filed an action for
"common law negligence and professional
malpractice" and breach of contract against the
attorneys and law firms who represented her in a divorce
proceeding against her former husband, Glen Rollins
("ex-husband"). Rollins alleged that the attorneys
and law firms - Alvah Smith, Barry McGough, Levine Smith
Snider & Wilson, LLC, and Warner Bates & McGough, PC
(collectively, the "law defendants") - committed
legal malpractice and breach of contract by failing to advise
her, by failing to adequately protect her interests, and by
pressuring her to agree to a Memorandum of Settlement that
was deficient in various respects. Rollins sought general,
compensatory, special and punitive damages, as well as
defendants filed motions for summary judgment. After the
court held a hearing on the motions but before it entered a
ruling thereon, Rollins filed a "Dismissal Without
Prejudice" in the action. The law defendants moved to
strike Rollins's dismissal on the ground that Rollins was
precluded from dismissing her case without prejudice after
the court announced its intention to grant summary judgment
against her. The trial court granted the law defendants'
motions to strike the dismissal and for summary judgment.
Rollins appeals. For the reasons that follow, we affirm the
order striking the dismissal, and we reverse in part and
affirm in part the grant of summary judgment.
Rollins contends that the trial court erred by striking her
dismissal when she filed it without having actual knowledge
of the court's summary judgment decision and before the
court entered its ruling. The contention is without merit.
the extent our analysis of the trial court's order
involves mixed questions of law and fact, we review the
court's factual findings for clear error and the
accompanying legal issues de novo." First Media
Group v. Doe, 312 Ga.App. 84, 85 (717 S.E.2d 277) (2011)
plaintiff cannot voluntarily dismiss a case unilaterally
after the court has expressed an intention to rule in favor
of the defendant. Dillard Land Investments v. Fulton
County, 295 Ga. 515, 520 (761 S.E.2d 282) (2014). A
statement by the trial court that summary judgment
"likely would be granted" also precludes the filing
of a voluntary dismissal. Leary v. Julian, 225
Ga.App. 472, 474 (1) (484 S.E.2d 75) (1997) (citation and
case, the court held a hearing on the motions for summary
judgment on May 22, 2018. The trial court did not announce a
ruling at that time. On June 12, 2018, the trial court's
staff attorney sent an email from the trial court to counsel
for all parties directing counsel for the law defendants
"to draft a proposed order granting your motions for
summary judgment including analysis of law and fact." On
June 14, 2018, before the trial court entered an order on the
summary judgment motions, Rollins filed a "Dismissal
Without Prejudice," purporting to unilaterally dismiss
the action. On June 15, 2018, the law defendants filed a
proposed order granting their motions for summary judgment.
On June 20, 2018, the law defendants filed a "Joint
Motion to Strike Plaintiff's Defective Notice of
Voluntary Dismissal," arguing that Rollins was precluded
from unilaterally dismissing the action without prejudice
after the trial court had expressed its intention to grant
summary judgment against her.
order striking the dismissal, the trial court stated:
After considering the entire record in this case, the Court
finds that it clearly communicated its intent to grant
Defendants' Motions for Summary Judgment to both parties
in this action prior to Plaintiff's attempt to file a
agree that the trial court expressed such an intention. As
detailed above, the court's staff attorney had sent an
email from the court to all parties (including counsel for
Rollins) directing only counsel for the law defendants to
prepare and submit a proposed order; the only order requested
was one granting the motions for summary judgment.
In addition, the trial court expressly found in its order
striking the dismissal that it had clearly communicated its
intention to grant the motions for summary judgment to
Rollins before she attempted to dismiss the action. Thus,
Rollins has not demonstrated that the trial court's
factual determination that it had communicated to her its
intention before her filing was clearly erroneous or that the
trial court made an error of law by striking her dismissal.
See generally First Media Group, supra at 85.
reliance on First Media Group as requiring reversal
in this case is misplaced. In First Media Group, the
trial court had not communicated to the plaintiff or her
counsel its request to the defendant for a proposed order
granting the defendant's summary judgment motion.
Id. at 84. Further, the trial court in First
Media Group issued an order expressly finding that it
had not communicated any intended disposition to the
plaintiff or her counsel and that the plaintiff lacked actual
knowledge of any decision by the trial court before filing
the dismissal. Id. at 85. The court in the instant
case made express findings to the contrary. Given the
distinctions between the cases, the trial court here did not
err by granting the motion to strike Rollins's dismissal.
Rollins contends that the trial court erred by granting the
law defendants' motions for summary judgment on her legal
malpractice claim when genuine issues of material fact remain
as to whether the law defendants breached the standard of
care and whether those breaches were the proximate cause of
her damages. We hold that as to one aspect of
Rollins's legal malpractice claim (involving a credit for
attorney fees paid for the ex-husband from a joint account),
the law defendants are not entitled to summary judgment. As
to the remaining aspects of the claim, however, summary
judgment is proper.
judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. OCGA § 9-11-56 (c). "A defendant
may do this by showing the court that the documents,
affidavits, depositions and other evidence in the record
reveal that there is no evidence sufficient to create a jury
issue on at least one essential element of plaintiff's
case." Szurovy v. Olderman, 243 Ga.App. 449,
452 (530 S.E.2d 783) (2000) (citation omitted). "On
appeal from a grant of summary judgment, we apply a de novo
standard of review and view the evidence in the light most
favorable to the nonmovant." Hayek v. Chastain Park
Condo. Assn., 329 Ga.App. 164 (764 S.E.2d 183) (2014)
prevail on a legal malpractice claim, a client must prove
that (1) [s]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." Mosera v. Davis, 306
Ga.App. 226, 230 (2) (701 S.E.2d 864) (2010). "With
respect to the 'ordinary care, skill and diligence'
element, the law imposes upon persons performing professional
services the duty to exercise a reasonable degree of skill
and care, as determined by the degree of skill and care
ordinarily employed by their respective professions under
similar conditions and like surrounding circumstances."
Allen v. Lefkoff, Duncan, Grimes & Dermer, 265
Ga. 374, 375 (2) (a) (453 S.E.2d 719) (1995) (citations,
punctuation and emphasis omitted).
Proximate cause in a malpractice action requires a plaintiff
to demonstrate that but for the [attorney's] error, the
outcome would have been different; any lesser requirement
would invite speculation and conjecture. These requirements
also pertain to malpractice suits arising from settlement
Szurovy, supra (citations and punctuation omitted).
"The defendant attorney is entitled to summary judgment
if he [or she] shows that there is an absence of proof
adduced by the client on the issue of proximate cause."