dissenting.
I respectfully dissent.
1. In their first enumeration, plaintiffs contend that there is a question of fact in regard to whether Thornton received reasonable notice of the call of the underlying case for trial, so that summary judgment on this ground was error.
As amended in 1989, USCR 8.4 (B) provides that in actions other than the first ten actions on the published trial calendar, the parties may contact the calendar clerk to obtain permission to await the call of the action for trial upon reasonable notice to counsel. See Green v. Green, 263 Ga. 551, 552, n. 1 (437 SE2d 457) (1993); see also Fulton v. State ofGa., 183 Ga. App. 570, 572 (359 SE2d 726) (1987) (applying USCR 8.4 prior to its 1989 amendment).
When the Atkinson case, which was in the number twelve position on the trial calendar, was called for trial at 9:00 a.m. on October 6, it was on two-hour notice. Counsel was thus entitled to receive actual notice of the trial two hours before it began. As acknowledged by plaintiffs, any call from the calendar clerk to Thornton was not made until after 5:00 p.m. on October 5. Thornton’s testimony was not self-contradictory nor did it conflict with representations in his brief. Thornton testified in his affidavit that on the morning of October 6, he went to his office and checked his answering machine for messages, and the light was not blinking, indicating there were no *888new messages. In his deposition, he testified that he checked his answering machine and there were no messages. In the brief in support of his motion to open the default, he stated that he did not notice any messages on the answering machine. In his deposition, Thornton testified that when he was informed by his secretary that the case had been called for trial that morning, he interrupted the deposition he was attending in order to telephone the judge’s office and then terminated the deposition. It cannot reasonably be inferred that Thornton actually received the message from the clerk or Gulley and chose to ignore it.
Moreover, it could not reasonably be expected that counsel would actually receive the message from the clerk any sooner than the start of business hours on October 6, which was not two hours before the start of the trial. Without court rule defining “two hours notice” otherwise, it should be construed to mean two business hours, in keeping with the business day orientation of OCGA § 1-3-1 (d) (3). The message did not constitute such two-hour notice for trial at 9:00 a.m. and thus, as a matter of law, was not reasonable notice. The trial court did not err in so concluding. Declaring default at 9:30 a.m. was premature.
2. In their second enumeration, plaintiffs maintain that there is an issue of fact in regard to whether the proximate cause of their damages was the negligent acts and omissions of Thornton or their voluntary settlement of the underlying case. In this regard, they assert that Thornton was also negligent in not diligently seeking to set aside the default judgment and in filing a notice of appeal after filing the motion to set aside the judgment, thereby depriving the trial court of jurisdiction to act on the motion.
“ Tn a legal malpractice action, the client has the burden of establishing 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. (Cits.)’ [Cits.]” Huntington v. Fishman, 212 Ga. App. 27, 29 (441 SE2d 444) (1994).
A motion to set aside under OCGA § 9-11-60 (d) does not extend the time for filing a notice of appeal, which must be filed within 30 days of the judgment, OCGA § 5-6-38 (a); Austin v. Carter, 248 Ga. 775, 776 (1) (285 SE2d 542) (1982). A motion to set aside may be filed within three years from entry of the judgment complained of. OCGA § 9-11-60 (f). Had it been denied, it would have been appealable in its own right under OCGA § 5-6-35. N. C. Constr. Co. v. Action Mobil-platform, 187 Ga. App. 507 (370 SE2d 800) (1988). In filing both, Thornton preserved the two options. His clients chose neither one.
Even if a jury could find Thornton negligent in not having the default judgment set aside immediately, the damages ultimately suf*889fered by his clients were not proximately caused by him in that they could have withdrawn the notice of appeal and pursued the motion and sought to set aside the default judgment rather than settling the case. See generally Rogers v. Norvell, 174 Ga. App. 453, 457 (2) (330 SE2d 392) (1985); compare Nix v. Crews, 200 Ga. App. 58 (1) (406 SE2d 566) (1991).
Decided March 21,1997 Reconsideration denied April 3,1997 Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Rebecca A. Copeland, for appellants. Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, for appellees.“The appellate courts of Georgia have held that failure of counsel ... to receive notice of trial is such a defect as will authorize the setting aside of judgment under authority of OCGA § 9-11-60 (d). [Cit.]” Beach’s Constr. Co. v. Moss, 168 Ga. App. 462, 463 (309 SE2d 382) (1983).
Flint v. Hart, 917 P2d 590 (Wash. App. 1996), relied on by plaintiffs, is distinguishable. In that case, the plaintiff entered into a settlement after obtaining an adjudication that his former law firm had made the omission charged to it, i.e., failed to retain a security interest in the intangible assets of a business which the plaintiff had sold. In this case, the plaintiffs settled the case in lieu of adjudicating the question of whether the default judgment should have been set aside.
Moreover, the present case, unlike Flint, involves litigation malpractice in which the existence of redressable harm depends on the outcome of the litigation. See Coble v. Aronson, 647 S2d 968 (Fla. App. 1994). In a case such as this, the plaintiff abandons its malpractice claim when it settles the underlying litigation while the appeal (or post-judgment motion) is pending, if the appeal or motion would, in all likelihood, have resulted in a reversal of the judgment. See Segall v. Segall, 632 S2d 76, 78 (1) (Fla. App. 1993). That is the case here.