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 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

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 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 120

Summary of Decision issued August 1, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Horn and Horn, PC. v. Wooster and Duddy

Citation: 2007 WY 120

Docket Number: 06-195

Certified Questions from the United States District Court, District of Wyoming, the Honorable Clarence A. Brimmer, Judge

Representing Appellants (Defendants): Weston W. Reeves and Anna R. Olson of Park Street Law Office, Casper, Wyoming. Argument by Mr. Reeves.

Representing Appellees (Plaintiffs): C.M. Aron of Aron & Henning, LLP, Laramie, Wyoming.

Questions: Should Client’s malpractice award be reduced by the contingent fee Attorney would have received absent his malpractice in the personal injury case? Can the Associated Attorney recover the agreed portion of the contingent fee, either as an offset against the contingent fee or as a separate claim against the Principal Attorney?

Facts/Discussion: The federal district court for the District of Wyoming certified two questions to this Court concerning how a negligent attorney’s contingent fee in the underlying personal injury action should be accounted for in a subsequent malpractice award to his former client.
Question One: The Court has never had occasion to address how a negligent attorney’s contingent fee should be treated in a subsequent malpractice action brought by the client. Historically, a negligent attorney had been entitled to deduct from a subsequent malpractice award the amount he would have been entitled to as a contingent fee in the underlying action. In the latter part of the twentieth century, some courts began to rule a negligent attorney was not entitled to such a deduction. Other courts simply stated that a negligent attorney should not benefit from shoddy or negligent work. In Jackson State Bank v. King, the Court stated that even though legal malpractice may be attributable to negligence on the part of the attorney, the right to recompense is based upon the breach of the contract with the client. Wyoming precedence established that in the absence of willful conduct, the damages recoverable for legal malpractice are those typically available for breach of contract and the award was designed to put the plaintiff in the same position as if the contract had been performed less the proper deductions. The Court noted that in the First Circuit case of Moores, the court stated that in a negligence action, the plaintiff is entitled to recover only those damages which were a foreseeable consequence of the defendant’s negligence. Concentrating on the question of what the client lost as a result of the attorney’s negligence requires the deduction of all expenses which the client would have incurred in order to successfully prosecute his claim, including the attorney’s fee expense. The well-accepted principles for calculation of damages in both contract and tort cases should be applied and the plaintiff should receive an award that would place him in the same position he would have enjoyed had the negligence not occurred.
The Court stated they have clear authority regarding a prevailing party’s right to collect attorney’s fees from his opponent. In Wyoming the American rule is applied. The Court saw no reason for creating an exception to the American rule when legal malpractice was involved.
Some courts have ruled that a negligence attorney is not entitled to a deduction of his contingent fee from a malpractice award against him but, utilizing a quantum meruit theory, may be entitled to a deduction for the value of his services which benefited the client. The Court stated that using the above approach to calculate damages would be difficult because the facts would present nearly unlimited opportunities for the client to second-guess the first attorney’s tactics and work product.
Question Two: The Court stated that plaintiffs did not cite any authority to support their position that an attorney should be allowed to maintain an action against his co-counsel for negligence in prosecuting the underlying personal injury action. To adopt a cause of action between co-counsel simply because the attorney proposed to give the client the benefit of any judgment in his favor would not square with the Court’s other precedent and could result in a case where the client’s best interests are compromised by the self interests of feuding attorneys.

Holding: The Court concluded that consistent with their damages jurisprudence in other areas of the law, a malpractice plaintiff is entitled to an award in the net amount he would have received under the contingent fee agreement had the underlying action been successful. The Court declined to recognize a cause of action by an attorney against his negligent co-counsel.

The first certified question was answered in the affirmative and the second in the negative.

J. Kite delivered the decision.

J. Burke, dissenting: The Justice dissented because he did not believe it was appropriate to adopt a rigid rule allowing deduction of the attorney’s contingent fee percentage in all legal malpractice cases. The deductibility of those fees should be tied to the benefit that the client received from the attorney’s efforts. Where the client has received no benefit, no deduction should be allowed. The Justice stated he believed that Moores supported a more flexible rule than the majority stated.
In the final analysis, it does not appear to the Justice that any court currently applies the rule adopted by the majority. The modern view regarding deductibility is appropriate and the reasoning supporting that view persuasive. He stated he felt the Court should adopt the general rule that the contingent fee should not be deducted. In those cases where it would be inequitable to disallow the deduction, as in Moores, a quantum meruit approach would be more appropriate. In the instant case, the certified question does not include any facts indicating any benefit. Accordingly, the Justice would have answered “No” to the first certified question.

Link: http://tinyurl.com/2jbk99 .