Houston v. Surrett

474 S.E.2d 39, 222 Ga. App. 207, 96 Fulton County D. Rep. 2529, 1996 Ga. App. LEXIS 673
CourtCourt of Appeals of Georgia
DecidedJune 20, 1996
DocketA96A0433
StatusPublished
Cited by17 cases

This text of 474 S.E.2d 39 (Houston v. Surrett) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Houston v. Surrett, 474 S.E.2d 39, 222 Ga. App. 207, 96 Fulton County D. Rep. 2529, 1996 Ga. App. LEXIS 673 (Ga. Ct. App. 1996).

Opinions

Pope, Presiding Judge.

Dr. Houston sued Surrett1 for legal malpractice, but the trial court granted the attorney summary judgment. Because this case involves no intentional wrongdoing, and because Houston cannot establish a causal relationship between Surrett’s negligence and any injury, we affirm the trial court’s ruling.

Houston divorced his wife, Tina Brown, in Columbia County Superior Court in 1987. The divorce decree, as later modified by that same court, gave the parties joint legal custody of their three children but granted Houston primary physical custody. Houston later moved to Thomas County in southwest Georgia, while Brown contin[208]*208ued to live in Columbia County. In 1992, dissatisfied with existing arrangements, Houston retained Surrett to file in Columbia County an action against Brown to modify visitation. Brown answered that suit and counterclaimed for additional visitation “and/or” custody. The trial court, after interviewing the children and finding a material change in circumstances, awarded custody of the two younger children to Brown.

Houston’s suit alleges Surrett should have moved to dismiss Brown’s counterclaim. OCGA § 19-9-23 (a), he argues, required Brown to file any custody claim as a separate action in Houston’s home county, Thomas; therefore, venue of Brown’s custody action was improper in Columbia County. Through new counsel, Houston did file a motion to dismiss the counterclaim for lack of venue before the trial court rendered its final order modifying custody. But the trial court denied the motion, and on appeal we determined that Houston waived any venue defense by failing to raise it early in the litigation. Houston v. Brown, 212 Ga. App. 834 (443 SE2d 3) (1994).2

In this malpractice action, Houston claimed as damages the loss of his children’s companionship; increased child support payments ordered in the underlying action; additional attorney fees incurred unnecessarily in Columbia County, including the costs of appealing the trial court’s refusal to dismiss the counterclaim for lack of venue; emotional damages; punitive damages; and attorney fees and expenses of litigation pursuant to OCGA § 13-6-11.

1. This case does not present a jury question regarding any intentional wrongdoing or any tort involving “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences” which might allow punitive damages. OCGA § 51-12-5.1 (b); Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991). Surrett testified his failure to raise the venue defense resulted from oversight. Houston produced no evidence contradicting his attorney’s plea of inadvertence. While an attorney’s concealment and misrepresentation of matters affecting his client’s case will give rise to a claim for punitive damages, Houston produced no such evidence. Cf. Peters v. Hyatt Legal Svcs., 211 Ga. App. 587, 593 (3) (440 SE2d 222) (1993); Thomas v. White, 211 Ga. App. 140, 141-142 (438 SE2d 366) (1993); and Holmes v. Drucker, 201 Ga. App. 687, 688 (411 SE2d 728) (1991), all of which involved evidence of actual concealment and misrepresentation. Law is, at best, an inexact science, Jones, Day &c. v. American Envirecycle, 217 Ga. App. 80, 83 (2) (456 SE2d 264) (1995), and [209]*209no evidence here shows Surrett’s failure to raise the defense could be anything more than gross negligence.

2. The trial court properly granted summary judgment because it found Houston unable to establish that Surrett’s failure to raise a venue defense proximately caused him any injury. A client suing his attorney must show the attorney’s negligence and must show that negligence proximately caused the client harm. Jaraysi v. Soloway, 215 Ga. App. 531, 532 (1) (451 SE2d 521) (1994). “A claim for legal malpractice is sui generis insofar as the plaintiff’s proof of damages effectively requires proof that he would have prevailed in the original litigation.” (Citation and punctuation omitted.) Nix v. Crews, 200 Ga. App. 58, 59 (2) (406 SE2d 566) (1991). A defendant in a legal malpractice case is entitled to summary judgment only if he shows “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 [the] plaintiff’s case. [Cit.]” (Punctuation omitted.) Huntington v. Fishman, 212 Ga. App. 27, 29 (441 SE2d 444) (1994).

We need not decide whether Surrett was negligent and whether Houston can quantify any damages. Houston’s case fails because he cannot show a causal link between his attorney’s failure to raise the venue defense and any injury suffered. Houston must show that, but for the error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. Hunt v. Tomlinson, 799 F2d 712, 714 (11th Cir. 1986) (applying Georgia law). Brown testified that, had Surrett objected to venue of the counterclaim, she would have filed a separate action for change of custody in Thomas County. The trial court might also have severed the counterclaim from Houston’s action and transferred it to Thomas County. OCGA § 9-11-42 (b); Bennett v. Wood, 188 Ga. App. 630, 632 (1) (373 SE2d 645) (1988); see McCabe v. Lundell, 199 Ga. App. 639, 640 (1) (405 SE2d 693) (1991); McCormick v. Rissanen, 177 Ga. App. 623 (340 SE2d 268) (1986). The record shows nothing prevented Brown from litigating custody in Thomas County, and decrees ordering custody and child support are subject to modification for changed circumstances.3 OCGA § 19-9-1 (b). Under these circumstances Houston cannot show that, had the case been litigated in Thomas County instead of Columbia County, he would have suffered none of the “injuries” and incurred none of the damages he claims. See Peters, 211 Ga. App. at 589-590 (1).

To recover from his attorney Houston would have to show, at a [210]*210minimum, that he would have fared better if the parties had litigated Brown’s counterclaim in Thomas County. But in either court, the issue of custody would have been determined on the basis of the children’s best interests. OCGA § 19-9-3 (a) (1991). Houston has not shown he could produce evidence at a Thomas County hearing different from that heard by the Columbia County court. See, e.g., OCGA § 24-10-21 (subpoena power extends throughout state). Thus, to recover he must show that a different judge hearing the same evidence would have acted differently.

Houston’s experts testified that a Thomas County judge would “never” have given Brown custody of the children.

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Cite This Page — Counsel Stack

Bluebook (online)
474 S.E.2d 39, 222 Ga. App. 207, 96 Fulton County D. Rep. 2529, 1996 Ga. App. LEXIS 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-v-surrett-gactapp-1996.