Addalli v. Boyer ( 2021 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
VENESSA ADDALLI, §
§ No. 410, 2020
Plaintiff Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ C.A. No. K19C-06-028
PATRICK BOYER, ESQUIRE, and §
MACELREE HARVEY, LTD., §
§
Defendants Below, Appellees. §
Submitted: June 25, 2021
Decided: August 6, 2021
Before SEITZ, Chief Justice; VALIHURA and MONTGOMERY-REEVES,
Justices.
ORDER
After consideration of the briefs and the record on appeal, it appears to the
Court that:
(1) The appellant, Venessa Addalli, appeals from the Superior Court’s
October 29, 2020 order granting summary judgment in favor of the appellees, Patrick
Boyer, Esquire, and law firm MacElree Harvey, Ltd. For the reasons discussed
below, we affirm the Superior Court’s judgment.
(2) The record reflects that Addalli retained Boyer for assistance with
ancillary matters and a custody dispute following Addalli’s divorce from her
husband. Addalli and her ex-husband agreed to a settlement of the matters, and the
Family Court entered a Qualified Domestic Relations Order (“QDRO”) on July 6,
2016. The QDRO divided the ex-spouses’ debts and assets and provided that
Addalli’s ex-husband would pay alimony and child support totaling $6,500 month.
(3) On June 21, 2019, Addalli filed a legal malpractice complaint against
Boyer and MacElree Harvey in the Superior Court. She filed an amended complaint
on August 23, 2019. Addalli alleged that Boyer provided poor advice regarding the
settlement and the likely outcomes of the litigation, failed to ascertain all the relevant
facts, spoke to Addalli in a threatening manner, billed Addalli for time spent
communicating with her by phone and email instead of meeting with her in person,
and submitted the stipulated order regarding the ancillary matters to the court
without ensuring that Addalli’s ex-husband had also signed an agreement settling
the custody dispute. The defendants answered on October 3, 2019, and demanded a
jury trial.
(4) The Superior Court entered a scheduling order on October 8, 2019. The
order established June 8, 2020, as the cutoff for the plaintiff’s expert discovery;
September 8, 2020, as the cutoff for the defendants’ expert discovery; October 2020,
2020, as the deadline for the completion of discovery; and a trial date of February
22, 2021. On June 9, 2020, the defendants moved for summary judgment on the
grounds that Addalli had not identified an expert witness. In response, Addalli
requested more time to find an expert. On September 22, 2020, the Superior Court
2
sent Addalli a letter instructing her that she had until the close of discovery, October
20, 2020, to provide the defendants with expert discovery or summary judgment
would be granted.
(5) Addalli still did not identify an expert witness, and on October 29, 2020,
the Superior Court granted the defendants’ motion for summary judgment. 1 The
court held that, in cases involving alleged legal malpractice in which a jury trial is
demanded, a plaintiff’s failure to provide expert testimony showing that the
defendant attorney breached his duty of care and that the breach caused injury to the
plaintiff is fatal to the plaintiff’s case, unless the alleged professional mistake is such
that a layperson would be able to find that the attorney acted negligently.
(6) On appeal, we review the Superior Court’s grant or denial of a summary
judgment motion de novo.2 On a motion for summary judgment, the moving party
must demonstrate that there are no genuine issues of material fact and that, viewing
the facts in the light most favorable to the non-moving party, the movant is entitled
to judgment as a matter of law.3
(7) To succeed on a claim of legal malpractice, the plaintiff must establish
(i) the employment of the attorney; (ii) the attorney’s neglect of a professional
1
Addalli v. Boyer, 2020 WL 6376634 (Del. Super. Ct. Oct. 29, 2020).
2
ConAgra Foods, Inc. v. Lexington Ins. Co., 21 A.3d 62, 68 (Del. 2011).
3
DEL. SUPER. CT. CIV. R. 56(c). Lorenzetti v. Enterline, 2012 WL 1383186, at *1 (Del. Apr. 18,
2012).
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obligation, and (iii) resulting loss—specifically, that the underlying action would
have been successful but for the lawyer’s negligence.4 It is settled that a plaintiff
must present expert testimony to support a claim of legal malpractice, except in those
cases where the lawyer’s mistakes are so obvious that a layperson, exercising
common sense, would be competent to determine whether the lawyer acted
negligently.5
(8) Having undertaken a careful, de novo review of the record in this case,
we conclude that the Superior Court did not err when granting the defendants’
motion for summary judgment. Addalli correctly observes—and the Superior Court
recognized—that the Superior Court has held in some cases that an expert witness is
not required when claims of legal malpractice will be presented in a bench trial.6 In
this case, however, the defendants demanded a jury trial, and Addalli was therefore
required to provide expert testimony in support of her claims to survive summary
judgment.
(9) Finally, Addalli argues that the Superior Court should have given her
more time to find an expert witness. But Addalli did receive additional time and,
4
Lorenzetti, 2012 WL 1383186, at *2.
5
See id. (affirming grant of summary judgment where plaintiff did not retain an expert in support
of his legal malpractice claim). See also Weaver v. Lukoff, 1986 WL 17121, at *1 (Del. July 1,
1986) (“As a general rule the standard of care applicable to a professional can only be established
through expert testimony. An exception to this rule exists, however, when the professional’s
mistake is so apparent that a layman, exercising his common sense, is perfectly competent to
determine whether there was negligence.” (citations omitted)).
6
E.g., Cannon v. Poliquin, 2020 WL 1076051, at *1 (Del Super. Ct. Mar. 5, 2020).
4
despite her apparent efforts, she failed to identify an expert witness. The Superior
Court acted within its discretion when declining to afford Addalli a further
extension.7
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice
7
See Anderson v. AIG Auto Ins. Co., 2007 WL 2410898, at *2 (Del. Aug. 24, 2007) (“The record
reflects that the Superior Court afforded Anderson, a pro se litigant, every reasonable opportunity
to litigate his claims, but, in the end, acted appropriately and well within its discretionary authority
to manage its own docket when it dismissed Anderson’s case.”).
5