concurring in part and dissenting in part.
1.1 respectfully dissent with respect to Division 2 of the majority opinion. Under established case law, the elements of a cause of action for legal malpractice are employment of an attorney, failure of the attorney to exercise ordinary care, skill, and diligence, and damages proximately caused by that failure. Tante v. Herring, 264 Ga. 694 (1) (453 SE2d 686) (1994). The first two elements are established beyond question in this case.
In my view, the majority misapplies the third element necessary to support a cause of action for legal malpractice by focusing on the outcome of a custody modification action in Thomas County — an action that never took place. Because it must be presumed that the result of such an action would have been identical to that obtained in *212Columbia County, the majority takes the position that Houston is unable to show he suffered damages attributable to Surrett’s admitted malpractice.
That hypothetical action, however, is not the proper focus for determining whether Houston met his burden of showing the elements of a cause of action for legal malpractice against Surrett. It is true that “[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). This does not mean, however, that we must resort to speculation regarding the possible result of litigation that never took place. The “original action” in this case is the Columbia County litigation, including Brown’s counterclaim, and it is to that litigation that we must apply the third element of the test.
Applying the third prong of the test, I have no difficulty in determining that Houston could and did demonstrate damage caused by Surrett’s negligence. It is black-letter law in this state that a petition for change of child custody must be brought “as a separate action in the county of residence of the legal custodian of the child.” OCGA § 19-9-23 (a). No question exists, therefore, that Brown’s “counterclaim” for change of custody was completely improper, both because it was not brought as a separate action and because venue did not lie in Columbia County.
Had Surrett raised Houston’s valid venue defense to this counterclaim, the Columbia County child custody litigation would have ceased to exist', it would have been either dismissed or transferred. Its continuation in Columbia County was caused by Surrett’s malpractice; its continuation in Columbia County directly damaged Houston in several ways, at least some of which are clearly discernible and unrelated to any hypothetical litigation in Thomas County. The majority mentions at least one of these: 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.
Our law does not and should not condone an attorney’s malpractice. This Court pronounces otherwise when it deprives Houston of a cause of action rightfully his and allows Surrett to escape the direct consequences of his negligence, at least for the expenses of remedial litigation caused by Surrett’s malpractice. I would hold that summary judgment as to liability should not have been granted to Surrett in this case.
2. I concur in Division 1 of the majority opinion because I agree that no punitive damages were recoverable. ,
I am authorized to state that Presiding Judge Birdsong, Judge *213Johnson and Judge Blackburn join in this opinion.
Decided June 20, 1996 Reconsideration denied July 11, 1996 Tony Center, for appellant. Freeman & Hawkins, Howell Hollis III, Christine L. Mast, Steven J. Misner, for appellees.