Summary 2010 WY 102

Summary of Decision issued July 28, 2010

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

Case Name: Rivers v. Moore, Myers & Garland, LLC

Citation: 2010 WY 102

Docket Number: S-09-0048

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

Representing Rivers: Eldon E. Silverman of Preeo, Silverman, Green & Egle, PC, Denver, Colorado.

Representing Moore, Myers & Garland, LLC.: W.W. Reeves and Anna Reeves Olson of Park Street Law Office, Casper, Wyoming.

Facts/Discussion: Rivers filed a complaint against the law firm of Moore, Myers & Garland, LLC, (the Firm) alleging legal malpractice in the Firm’s representation of him in his purchase of property on which he planned to construct a medical office building. Among the damages Rivers alleged were “expectancy” damages, the difference between the value of the larger building Rivers planned to build and the smaller building he was ultimately permitted to build under the property’s restrictive covenants. Rivers appealed the district court’s entry of summary judgment against him on his claim that the Firm’s breach of duty to competently represent him was the proximate cause of the alleged expectancy damages.

Summary judgment grounds: The elements of a legal malpractice claim are: the existence of a duty arising from the attorney/client relationship; the accepted standard of legal care; and the departure by the attorney from the standard of care which causes harm to the client. Rivers’ claim for expectancy damages was premised on the contention that if the Firm had fulfilled its duty to adequately represent Rivers, and had done so without delay, Rivers would have been able to build a 10,000 square foot building on Lot 7. As the district court concluded, that premise found no support in the record. The record was devoid of any indication that the Firm’s conduct was a substantial factor in Rivers’ inability to build his desired 10,000 square foot building. Rivers argued that the Firm failed to present affidavits showing that Smith’s would not have agreed to a 10,000 square foot building if the Firm had acted expeditiously. Rivers contended that a genuine issue of material fact existed as to the question of causation and the entry of summary judgment was contrary to W.R.C.P. 56. Both Rule 56 and the Court’s definition of materiality permit consideration of the pleadings with or without affidavits, to determine whether summary judgment is proper. Rivers alleged that had he been adequately advised of the limitations imposed by the restrictive covenants, he would not have purchased Smith’s property. He did not make a claim in the pleadings that but for the Firm’s actions, Smith’s would have agreed to the larger building. Rivers’ late coming allegations were insufficient to stave off summary judgment. A party cannot avoid it by demanding affidavits, or any other evidence, against an allegation that was never pled.
Secondly, Rivers argued that the record contained evidence that the Firm’s conduct caused Rivers’ expectancy damages. Rivers’ expert attempted to impermissibly shift Rivers’ business loss to the Firm without showing that the loss suffered was in fact caused by the Firm’s alleged malpractice. The district court correctly rejected the evidence and concluded that Rivers’ claim for expectancy damages failed as a matter of law.
Loss-of-chance doctrine: Rivers asserted that summary judgment was improper because there were genuine issues of material fact as to whether Rivers may recover those damages under the loss-of-chance doctrine. The district court rejected the argument on the ground that the doctrine applies only where a plaintiff can show a physical injury to person or property. The Court noted that the loss-of-chance doctrine typically arises when a plaintiff seeks to recover damages against a medical provider who had reduced the plaintiff’s chances of survival. To prevail, the plaintiff must show: that the patient has been deprived of the chance for successful treatment; and that the decreased chance for successful treatment more likely than not resulted from the provider’s negligence. The Court stated the instant case did not present circumstances in which the odds must be calculated to determine whether an opportunity was lost. Even if it did, Rivers had not designated an expert to testify as to the basis for quantifying the percentage chance that may have been lost by the Firm’s alleged malpractice. The Court noted that this decision did not declare that there can never be a circumstance under which the loss-of-chance doctrine may apply to a legal malpractice claim.

Conclusion: The record contained no evidence or pleadings in support of Rivers’ claim for expectancy damages, and the case does not present circumstances that would compel extension of the loss-of-chance doctrine to legal malpractice claims. The district court thus properly granted the Firm’s motion for partial summary judgment.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2a9z9tt .

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