Summary 2009 WY 20

Summary of Decision issued February 19, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Bangs v. Schroth

Citation: 2009 WY 20

Docket Number: S-07-0012

Appeal from the District Court of Teton County, the Honorable Dennis L. Sanderson, Judge.

Representing Appellant Bangs: William R. Fix and Jenna V. Mandraccia of William R. Fix, PC, Jackson, Wyoming.

Representing Appellee Schroth: Robert M. Shively and Amy M. Taheri of Shively, Taheri and Rochelle, PC, Casper, Wyoming.

Facts/Discussion: Bangs, who claims that attorney Schroth undertook and then mishandled her legal representation by failing to timely commence medical malpractice litigation against two doctors, appealed the district court’s grant of summary judgment to Schroth in her legal malpractice case against him.

Summary Judgment Law: To answer whether Schroth properly supported his motion for summary judgment as required by W.R.C.P. 56, the Court reviewed their decisions in Rino v. Mead, Havens v. Hoffman, Roybal v. Bell and Greenwood v. Wierdsma. Schroth supported his summary judgment claim with affidavits from himself and two physicians, Dr. Bricca and Dr. Bossart. Schroth’s affidavit was inadequate in several respects. He failed to state the standard of care he referred to, he failed to attach a copy of his resume, he stated categorical assertions without supporting facts, and he offered a medical opinion. In addition, he erred when he stated there was no attorney-client relationship between himself and Bangs. That determination is for the trier of fact and cannot be resolved by summary judgment.
Dr. Bricca’s affidavit was inadequate in several respects as well. He failed to state the applicable standard of care for family practice physicians, the applicable standard of prenatal obstetrical care, and the applicable standards of care for colon problems like Ms. Bangs suffered during her pregnancy. He failed to state specific facts concerning Ms. Bangs’ medical problems and his treatment of those problems. He failed to attach the medical records to which he referred and failed to attach the CV to which he referred. Dr. Bossart’s affidavit suffered the same defects as Dr. Bricca’s affidavit.
Because the affidavits were insufficient, Bangs was entitled to rest upon the allegations contained in her complaint. In the absence of legally supporting affidavits, the motion for summary judgment must be confined to a decision under W.R.C.P. 12(b)(6) dismissal for failure to state a claim. After striking Schroth’s insufficient affidavits, little remained of the record which would have been sufficient to allow the Court to precisely ascertain whether statements were of present fact or future intention. Therefore, the Court remanded on the negligent misrepresentation claim so that full discovery could take place and the record could be fully developed.

Deceit under Wyo. Stat. Ann. § 33-5-114: An alleged deceit must occur in the context of an existing judicial action or proceeding. Because Bangs’ averments in her complaint made clear that Schroth’s alleged conduct did not occur when she was a party to an existing judicial action, her claim under § 33-5-114 failed to state a claim upon which relief could be granted.

Conclusion: The district court erred when it did not strike Schroth’s, Bricca’s and Bossarts’ inadequate affidavits. The Court reversed the summary judgment in favor of Schroth on all claims except the claim of deceit which was dismissed under W.R.C.P. 12(b)(6) and remanded to the district court.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/cakch5 .

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