FOURTH DIVISION

DOYLE, P. J.,

COOMER and MARKLE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

June 27, 2019

In the Court of Appeals of Georgia

A19A0082. EDWARDS v. MOORE et al.

MARKLE, Judge.

Audra Edwards brought this legal malpractice action against her divorce

attorneys, Tracy Ann Moore d/b/a Tracy Ann Moore, P. C., and Banks & Stubbs, LLP

n/k/a Banks, Stubbs& McFarland,LLP(collectively, “Defendants”), alleging thatshe

was wrongfully denied alimony due to their negligent mishandling of her case. She

appeals from the trial court’s order granting summary judgment to Defendants and

denying her motion for partialsummary judgment asto Defendants’liability. Finding

no error, we affirm.

Summary judgment is appropriate when there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law.

In reviewing the grant or denial of a motion for summary judgment, we

apply a de novo standard of review, and we view the evidence, and all
reasonable conclusions and inferences drawn from it, in the light most

favorable to the nonmovant.

(Citation omitted.) Grizzle v. Norsworthy, 292 Ga. App. 303, 303-304 (664 SE2d

296) (2008).

In 2011, Edwards’s marriage was struggling. She hired an attorney, who is not

a party to this suit, to draft a separation agreement. Notably, the agreement provided

that Edwards would receive monthly alimony in the amount of $2,800 “for so long

asthe parties are legally separated, or until May 1, 2026, whichever shall first occur.”

It also provided that it would be incorporated into the final divorce decree if the

parties proceeded to divorce.1 The separation agreement was executed in June 2011.

Edwards’s husband was not represented by independent counsel at the time the

separation agreement was drafted or executed. 

In March 2012, the separation agreement was approved and incorporated into

a final judgment in Edwards’s separate maintenance action. In October of that year,

1 Specifically, the separation agreement provided that “in the event that either

party shall bring or maintain an action for dissolution of the marital relationship, or

for separate maintenance, this agreement shall be presented to the Court and

incorporated by reference into any judgment or decree concerning the matters

provided herein.” 

2
Edwards’s husband filed for divorce.2 During the pendency of the divorce action,

Edwards hired new counsel, who is also not a party to thissuit, to represent her.3 That

attorney filed Edwards’s verified answer and counterclaims in August 2013. In her

counterclaim, Edwardsrequested that the separation agreement be incorporated in the

final divorce judgment because it resolved all the issues between the parties.

Following the withdrawal of Edwards’s second counsel, she retained Moore to

represent her in the divorce. 

Shortly thereafter, Moore filed Edwards’s motion for judgment on the

pleadings, contending that all of the issues in the divorce, including alimony, were

resolved under the separation agreement. In April 2014, the parties filed a joint

consent agreement for judgment on the pleadings, and the following day, the divorce

court entered its final judgment and decree, incorporating the settlement agreement

and granting the divorce. 

2

In his petition, Edwards’s husband requested that the court determine

alimony, despite seeking incorporation of the separation agreement to resolve other

issues in the divorce, such as property division and the parenting plan. 

3 Edwards initially retained the attorney who drafted the separation agreement

to represent her in the divorce, but terminated the representation when she hired new

counsel. 

3
Following the divorce, Edwards’s former husband ceased paying alimony. He

took the position that he was no longer obligated to pay alimony under the settlement

agreement because the couple was no longer “legally separated.” Moore filed

Edwards’s motion for contempt for nonpayment of alimony, but the divorce court

denied the motion, finding that under the plain and unambiguous language of the

alimony provision in the settlement agreement, the husband wasrelieved frompaying

alimony once the divorce wasfinal. Moore then moved to modify the final judgment,

but Edwards terminated Moore during the pendency of that motion and hired her

current counsel shortly thereafter. 

A year later, Edwards sued Moore and the two law firms Moore was affiliated

with, bringing claims for legal malpractice, breach of fiduciary duty, breach of

contract, and fraudulent concealment. An expert affidavit was attached to the

complaint, pursuant to OCGA § 9-11-9.1. In the affidavit, the expert opined that

Defendants breached the applicable standard of care by failing to recognize that the

alimony provision in the settlement agreement was unfavorable to Edwards and by

failing to pursue an alimony award before the divorce court. Defendants moved for

summary judgment, and Edwards filed a cross-motion for partial summary judgment

with respect to Defendants’ liability on the malpractice claim. The trial court granted

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Defendants’ motion for summary judgment and denied Edwards’s motion, finding

that Edwards could not prove, as a matter of law, that Defendants proximately caused

the cessation of her alimony, nor could she prove her damages. This appeal followed. 

1.Edwardsfirst arguesthat the trial court erred by granting Defendants’motion

for summary judgment because it improperly concluded that the Settlement

Agreement, as incorporated into the final divorce decree, precluded her frompursuing

either alimony in her divorce or a modification of the amount in the future. In

response, Defendants contend that Edwards cannot show that their acts were the

proximate cause of damages to Edwards. We agree with Defendants.

To 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) thisfailure wasthe 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

[s]he shows that there is an absence of proof adduced by the client on

the issue of proximate cause.

(Citation omitted.) Benson v. Ward, 343 Ga. App. 551, 552 (807 SE2d 471) (2017).

As to the first element, it is undisputed that Edwards employed Moore to

represent her during the pendency of the divorce action. Pretermitting whether there

is a question of fact as to Moore’s alleged failure to exercise ordinary care, skill, and

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diligence, Edwards has failed to establish a question of fact as to whether Moore’s

conduct caused her damages, which is fatal to her case. See Perry v. Ossick, 220 Ga.

App. 26, 29 (467 SE2d 604) (1996).

Edwards’s theory is that Moore should have amended the answer to assert a

counterclaim for alimony and sought to reform the settlement agreement, which

would have resulted in her obtaining alimonypost-divorce. However, “[a] clientsuing

[her] attorney for malpractice not only must prove that [her] claim was valid and

would have resulted in a judgment in [her] favor, but also that said judgment would

have been collectible in some amount, for therein liesthe measure of [her] damages.”

(Citation omitted.) Perry, 220 Ga. App. at 29. Presupposing that the divorce court

would have permitted a departure from the separation agreement, despite the

incorporation clause providing that it would govern the terms of the final divorce,

there is no evidence that Edwards would have succeeded on a counterclaim for

alimony, nor is there evidence of what the measure of her damages would be.4

4 Edwards appears to take the position that she would be entitled to the $2,800

monthly alimony payments until May 2026 under the separation agreement, even if

the court permitted the parties to depart from or reform the agreement. 

6
Edwards had no inherent right to alimony. “[A]limony is authorized, but is not

required, to be awarded to either party in accordance with the needs of the party and

the ability of the other party to pay.” (Emphasis supplied.) OCGA § 19-6-1 (c).

Notably, other than a letter in which Edwards’s former husband indicated that he

could no longer sustain the child support and alimony payments, there is no evidence

of her former husband’s financial status, his annual income, or his assets that would

support an award of alimony in her favor based on his ability to pay. See id.; cf.

Szurovy v. Olderman, 243 Ga. App. 449, 452 (530 SE2d 783) (2000) (plaintiff could

not show that, but for her counsel’s actions, she could have negotiated a favorable

alimony provision in a settlement agreement where there was no evidence of her

former husband’s financialstatus, income, or assets). Edwardsthus cannotshow that

“but for [Defendants’] error, the outcome would have been different,” and therefore

hasfailed to establish proximate causation.(Citation omitted.) Szurovy, 243 Ga. App.

at 451-452.

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Moreover, Edwards’s claim for damages is entirely speculative.5

 And “in the

absence of any showing of harm, there is no evidence that any alleged negligence was

the proximate cause of damage to the plaintiff.” Id. at 452. Accordingly, we find no

error in the trial court’s grant of summary judgment to Defendants on Edwards’slegal

malpractice claim.

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2. In light of our holding in Division 1, Edwards’s remaining enumeration

regarding the trial court’s denial of her motion for partial summary judgment as to

Defendants’ liability on the malpractice claim is without merit.

Judgment affirmed. Doyle, P. J., and Coomer, J., concur.

5 Edwards’s expert witness acknowledged that Edwards’s damages are

speculative under these circumstances. At his deposition, the expert was asked, “She

wanted more, and Mr. Edwards wanted to pay less. Isthere any way to know how that

would have come out?” To which he responded, “No.” 

6 Edwards did not enumerate as error the trial court’sruling on her other claims,

and did not refer to them in her initial briefing, though she did raise them in her reply

brief. However, “this Court will not consider arguments raised for the first time in a

reply brief.” (Citation omitted.) Barron v. Wells Fargo Bank, N.A., 332 Ga. App. 180,

187 (4) (769 SE2d 830) (2015).

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