THIRD DIVISION

MCFADDEN, C. J.,

DOYLE, P. J., and HODGES, J.

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.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

October 5, 2020

In the Court of Appeals of Georgia

A20A1367. PHILLIPS et al. v. HARRIS et al.

HODGES, Judge.

In this legal malpractice case, Napoleon Harris and Think Wiser, Inc.

(collectively “Harris”) sought recovery against attorney Amelia Phillips and Phillips

Law, LLC (collectively “Phillips”), alleging that her failure to properly argue his

entitlement to a statutory treble damages exemption during a landlord-tenant action

caused him to be wrongfully liable. See OCGA §§ 44-7-35 (c), 44-7-36. The jury

found in favor of Harris and awarded $8,475.00 in damages and $5,000.00 in attorney

fees and expenses, and the trial court entered judgment accordingly. Phillips now

asserts, in somewhat overlapping enumerations of error, that the trial court erred

because she met the appropriate standard of care in her representation of Harris and

the evidence was insufficient to show she proximately caused Harris’ damages; she
also contends the trial court erred in denying her motions for judgment

notwithstanding the verdict and for directed verdict. We disagree and affirm.

The initial dispute between the parties is outlined in an unpublished opinion

rendered by this Court in the landlord-tenant case that underlies Harris’ claims of

legal malpractice. Think Wiser, Inc. v. Bowen, 335 Ga. App. XXX (Case No.

A15A2089) (2016). Harris owned a rental house that he leased to tenants. In 2014,

the tenants sued Harris and his solely owned company, Think Wiser, alleging that

after they moved out, he wrongfully withheld their security deposit and wastherefore

liable for statutory treble damages and attorney fees. Harris contended that the tenants

had damaged the home such that he was justified in retaining the deposit. He also

counterclaimed for damages. The magistrate courtfound in favor of the tenants. Think

Wiser, 335 Ga. App. at 3-4. Harris then hired Phillips and her law firm to handle his

appeal to superior court, where the tenants again argued that Harris wrongfully

withheld their security deposit, entitling them to statutory treble damages. After a

bench trial, the superior court found in the tenants’ favor. Harris moved for

reconsideration and to vacate and set aside the judgment, arguing, among other

things, that he was statutorily exempted from treble damages. Id. at 4. The trial court

denied Harris’motions, and thisCourt granted Harris’ discretionary appeal. Id. at 4-5.

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As this Court noted in that initial appeal, Think Wiser, 335 Ga. App. at 7-8 (2),

the tenants’ argument was based upon OCGA § 44-7-35 (c) which provides, in

pertinent part, that a landlord “who failsto return any part of a security deposit which

is required to be returned to a tenant pursuant to this article shall be liable to the

tenant in the amount of three times the sum improperly withheld plus reasonable

attorney’s fees[.]” However, the treble damages provision 

shall not apply to rental units which are owned by a natural person if

such natural person . . . own[s] ten or fewer rental units; provided,

however, that this exemption does not apply to units for which

management, including rent collection, is performed by third persons,

natural or otherwise, for a fee. 

OCGA § 44-7-36. 

This Court affirmed the superior court, finding that Harris did not properly

raise a statutory exemption argument until the motion for reconsideration stage, after

the trial court had rendered its judgment. Think Wiser, 335 Ga. App. at 8 (2). As a

result, we found that “[t]he issue of exemption under OCGA § 44-7-36 was not

adequately presented to the trial court, and thus, the court’s ruling that Harris was

liable for treble damages did not constitute error.” Id. at 8-9 (2). Phillips’ motion for

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reconsideration to this Court and his petition for certiorari to the Supreme Court of

Georgia were denied. 

Following this Court’s decision in Think Wiser, Harris sued Phillips for legal

malpractice, arguing that he was injured because she failed as his attorney to present

evidence that he was exempt from the treble damages provision. After a jury verdict

in Harris’ favor in the malpractice action, Phillips filed the instant appeal.

1. Phillips argues that the evidence presented in the malpractice action was

insufficient to show she failed to meet the standard of care. We disagree.

“In a legal malpractice action, the plaintiff must establish three elements: (1)

employment of the defendant attorney; (2) failure of the attorney to exercise ordinary

care, skill and diligence; and (3) that such negligence was the proximate cause of

damage to the plaintiff.” (Citation and punctuation omitted.) Leibel v. Johnson, 291

Ga. 180, 181 (728 SE2d 554) (2012). Phillips does not dispute the first element, but

rather disputesthe second and third elementsin somewhat conflated enumerations of

error.

[W]ith 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

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professions under similar conditions and like surrounding

circumstances.

(Citation omitted.) Id. Expert testimony is necessary to establish thissecond element,

except in “clear and palpable cases[.]” Id.

In the instant case, the evidence showed that in the 2015 landlord-tenant case,

Phillips mentioned in two sentences in her opening argument that Harris was an

individual property owner who managed the property himself and was “in the

exemption for any kind of treble damages.” Phillips points us to nothing in the 2015

transcript, however, showing that she presented any further argument, evidence or

testimony related to Harris’ qualifications for the OCGA § 44-7-36 exemption. Nor

did she ever inform the trial court, prior to its rendering judgment, of any legal

authority for the “exemption” she mentioned, or cite OCGA § 44-7-36 to the trial

court. See Think Wiser, 335 Ga. App. at 8-9 (2).

Phillips now contends that the 2015 transcript contained “blended words” and

that she “in good faith believed that the law on exemption had been presented to the

[c]ourt sufficiently to meet any standard of care to the client, though not [] perfectly

clearly[.]” At the malpractice trial, Phillips testified that she thought she gave the

judge “a packet of law containing OCGA § 44-7-36,” and that she mentioned this

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Code section at the 2015 trial but “it was not transcribed.” She directs us to an e-mail

she sent to Harris in which she said that she thought she had cited OCGA § 44-7-36

at trial, and that she “recall[ed] the judge writing this code section down while I

repeated it to him[.]” The e-mail acknowledged that the transcript does not reflect

this. 

Phillips, however, points us to nothing in the record indicating that she

attempted to correct the 2015 transcript, despite her belief that it was inaccurate. If

Phillips believed the transcript omitted or misrepresented a necessary part of the

proceedings, she had “the responsibility to seek to correct the transcript in that

respect.” Johnson v. State, 302 Ga. 188, 193 (3) (a), n. 7 (805 SE2d 890) (2017); see

also State v. Nejad, 286 Ga. 695, 699 (1) (690 SE2d 846) (2010) (outlining procedure

by which an incomplete transcript may be amended and certified). Further, once

certified by a court reporter, as is the 2015 transcript, it is presumed accurate and

complete. Morris v. State, – Ga. App. – (842 SE2d 45, 50 (2), n. 4) (2020), citing

OCGA § 15-14-5.

With regard to Phillips’ failure to present the exemption argument adequately,

Harris presented two attorney-expert witnesses on the subject. Both testified that

Phillips’ failure to argue the statutory exemption and to present evidence and

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testimony regarding Harris’ qualifications for the exemption, or to clarify any

evidentiary ambiguities regarding his management of the rental property, fell below

the standard of care for Georgia attorneys.

Further, there is evidence indicating that Harris and Phillips discussed his

qualifications for the OCGA § 44-7-36 exemption, and that he understood she would

be arguing that he was exempt from the statutory treble damages provision because

OCGA § 44-7-35 “does not apply to me” given that he was an individual owner of

only one rental property. See generally Berman v. Rubin, 138 Ga. App. 849, 852 (227

SE2d 802) (1976) (An “attorney may breach [her] duty towards [her] client when,

after undertaking to accomplish a specific result, . . . [she] then fails to comply with

prescribed statutory formalities or to effectuate the intent of the parties.”). We find

no error.

2. Phillips contends that the trial court erred in failing to grant her motions for

directed verdict or judgment notwithstanding the verdict in the malpractice action.

She essentially argues that there was insufficient evidence to show that her legal

representation proximately caused Harris to lose any exemption argument, and as a

result, the jury was required to speculate that her actions had caused his liability for

statutory treble damages. Again, we disagree.

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In raising this argument, Phillips appears to reference the third element of the

Leibel test, which requires that if a plaintiff has established the employment of the

defendant attorney and that attorney’s failure to exercise ordinary care and skill, the

plaintiff must then show “that such negligence was the proximate cause” of his

damages. 291 Ga. at 181. 

“The standards for granting a directed verdict or j. n. o. v. are identical[.]”

(Citation omitted.) Whisper Wear, Inc. v. Morgan, 277 Ga. App. 607, 608 (627 SE2d

178) (2006). A judgment n. o. v. or motion for directed verdict

is properly granted only when there can be but one reasonable

conclusion as to the proper judgment; if there is any evidentiary basis

for the jury’s verdict, viewing the evidence most favorably to the party

who secured the verdict, it is not error to deny the motion. . . . If the

record contains any evidence upon which the verdict can be based, the

jury is free to disbelieve whatever facts are inconsistent with their

conclusion and the court cannot substitute its conclusion for that of the

jury[.]

(Citations and punctuation omitted.) Ogletree v. NavistarIntl. Transp.Corp., 271 Ga.

644, 646-647 (522 SE2d 467) (1999);see also OCGA § 9-11-50 (a), (b).

“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

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requirement would invite speculation and conjecture.” (Citations and punctuation

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

that we found no error in Division (1) regarding the trial court’s determination that

Phillips’ representation fell below the standard of care, the next part of our analysis

turns to 

the so-called “suit within a suit,” to determine whether the client was, in

fact, damaged by that negligence. Thus, the ultimate goal of the “suit

within a suit” is to determine what the outcome should have been if the

issue had been properly presented in the first instance. That

determination, however, does not require that the jury in the malpractice

action determine what the actual [factfinder] in the underlying action

would have done; rather, the . . . jury [in the malpractice action] is to

determine what a reasonable [factfinder] would have done if the case

had been tried differently. Thus, the jury in the malpractice action is

permitted to substitute its own judgment for that of the [factfinder]in the

underlying action.

(Citation and emphasis omitted.) Leibel, 291 Ga. at 182. 

Evidence presented in the malpractice action related to the claims in the

underlying landlord-tenant suit showed that Harris owned the property at issue, and

it was his only rental property. Harris used Atlanta Rental Services (“ARS”) as a

listing agent/broker to find tenants and prepare leases, but Harris was listed as the

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property’s “owner/manager” in his contract with ARS. Tenants paid ARS a “onetime” listing fee/security deposit, but Harris did not pay ARS or anyone else a

management fee and ARS was not responsible for rent collection. Rent was paid to

Harris’solely-owned company, Think Wiser, for bookkeeping and tax purposes,

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but

Harris did not pay Think Wiser any management fee. Harris testified that he

performed all propertymanagement himself, including handling cleaning and repairs. 

Phillips argues that this evidence is “ambiguous” and required the jury to

speculate. In an appeal from the trial court’s denial of a judgment n. o. v. or directed

verdict, “we review and resolve the evidence and any doubts or ambiguities in favor

of the verdict.” (Citation omitted.) Lomax v. Kroger Co., 348 Ga. App. 726, 727 (824

SE2d 629) (2019). Under this standard, there was evidence that fit within the factual

requirementsfor exemption fromtreble damages under OCGA § 44-7-36 in that there

was evidence showing that Harris is a “natural person,” is the sole owner of the

property, managed the property himself, and that although rent was paid to hissolelyowned company, Think Wiser, neither it nor any other entity was paid a management

fee. As there was evidence supporting the jury’s verdict which did not demand a

1 Phillips argued these facts, albeit belatedly, in her motion for reconsideration

of the trial court’s adverse judgment in the landlord-tenant case. 

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different verdict, the trial court did not err in denying Phillips’ judgment n. o. v. and

motion for a directed verdict. Ogletree, 271 Ga. App. at 646-647. 

Judgment affirmed. McFadden, C. J., and Doyle, P. J., concur.

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