Richard Sykes v. Andrew E. Schepp ( 2012 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 39687
RICHARD SYKES, ) 2012 Unpublished Opinion No. 774
)
Plaintiff-Appellant, ) Filed: December 24, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
ANDREW E. SCHEPP; BRADY LAW, ) THIS IS AN UNPUBLISHED
CHARTERED, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendants-Respondents. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Ronald J. Wilper, District Judge.
Order granting summary judgment, affirmed.
Richard Sykes, Boise, pro se appellant.
Carey Perkins, LLP; Richard L. Stubbs and Kevin A. Griffiths, Boise, for
respondents.
________________________________________________
GRATTON, Chief Judge
Richard Sykes appeals from the district court’s order granting summary judgment
dismissing his professional malpractice claim. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Sykes attended a fireworks display at Ann Morrison Park on July 4, 2010. While at the
display, Sykes tripped over a curb injuring both of his rotator cuffs. Sykes then hired Andrew
Schepp, an attorney at Brady Law Chartered, to file suit. 1 As it related to a potential claim
against the City of Boise, no tort claim was ever filed, although respondents informed Sykes that
the claim had been filed. On February 24, 2011, Sykes filed a complaint against respondents for
1
Schepp passed away in an accident in October 2011. Sykes never amended his pleadings
to reflect the changes in party. For ease of reference, Schepp and Brady Law will be referred to
together as respondents.
1
professional malpractice for failing to timely file a notice of tort claim, thus preventing suit
against the City of Boise.
Sykes filed a motion seeking summary judgment against respondents, claiming that
respondents had violated the Idaho Rules of Professional Conduct. Respondents, in turn, filed a
motion for summary judgment arguing that Sykes could not prove any damages because the City
of Boise was immune from suit. The district court denied Sykes’ motion and granted
respondents’ motion for summary judgment. The district court found that, because the City of
Boise was immune from suit, the failure to file the notice of tort claim caused no damages to
Sykes.
Sykes filed a motion for reconsideration in which he argued that the potential success of
his lawsuit should have no bearing on whether respondents were liable for professional
negligence. The district court denied Sykes’ motion for reconsideration and awarded the
respondents attorney fees and costs pursuant to Idaho Code § 12-120(3). Sykes timely appeals.
II.
DISCUSSION
Sykes argues two issues on appeal:
First, did the Complaint for Negligence and Professional Malpractice state
a claim that Respondents violated the Idaho Code of Ethics and Conduct
standards by failing to timely file a Notice of Claim? . . .
Second, did the District Court abuse its discretion by using the unrelated
Injury to Appellant’s shoulders at the 4th of July event as the reason to dismiss
Appellant’s case?
(Emphasis in original.)
A. Malpractice
Sykes argues that the district court erroneously granted respondents’ motion for summary
judgment. Sykes acknowledges that there are four elements to a legal malpractice claim: (1) the
existence of an attorney-client relationship with the defendant; (2) defendant owed the plaintiff a
duty of care; (3) defendant breached that duty, and; (4) defendant’s negligence was a proximate
cause of plaintiff’s damage. See Soignier v. Fletcher, 151 Idaho 322, 324, 256 P.3d 730, 732
(2011). However, in his brief on appeal, Sykes argues that the viability of his underlying lawsuit
against the City of Boise should be inconsequential. In making this argument, Sykes fails to
address or challenge the district court’s basis for its summary judgment decision. Sykes does not
2
address the district court’s determination that respondents were not the proximate cause of his
damages because the City of Boise was immune from suit, regardless of the failure to file a
notice of tort claim. Instead, Sykes contends that he is seeking damages for respondents’ failure
to perform a duty and, as such, the success of the underlying claim is irrelevant. Sykes fails to
understand that in order for him to possess a viable malpractice claim he must show that
respondents’ failure to file the notice of tort claim resulted in damages to Sykes and, in this
context, that means that the failure to file the notice of tort claim resulted in Sykes’ inability to
recover against the City of Boise for his injuries. This demonstration of resultant damages
applies to claims brought in tort or contract. Sykes provides no argument on appeal that the
district court incorrectly determined that the City of Boise was immune from suit. A claim of
error on appeal that is not supported by either argument or authority is waived. Woods v.
Sanders, 150 Idaho 53, 60, 244 P.3d 197, 204 (2010); Bach v. Bagley, 148 Idaho 784, 791, 229
P.3d 1146, 1153 (2010); State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). Sykes
has failed to demonstrate that the district court erred in granting summary judgment to
respondents.
B. Attorney Fees on Appeal
Sykes did not request an award of attorney fees in his opening brief. In his reply brief,
Sykes states only that “Appellant also seeks attorney fees based upon the fact that his complaint
and this appeal are not frivolous nor without merit.” Regardless of the fact that Sykes failed to
properly raise any attorney fee claim or support any such claim with argument and citation to
authority, Sykes is not the prevailing party in this appeal and is, therefore, not entitled to an
award of attorney fees. Moreover, Sykes does not claim on appeal that the district court abused
its discretion by awarding attorney fees to respondents and thus waived the issue.
Respondents claim attorney fees under I.C. §§ 12-120(3) and 12-121. Attorney fees may
be awarded in the context of a legal malpractice action under I.C. § 12-120(3) to the extent the
attorney-client relationship involves a commercial transaction. Bishop v. Owens, 152 Idaho 616,
620, 272 P.3d 1247, 1251 (2012); Soignier, 151 Idaho at 324, 256 P.3d at 732. However, not
every attorney-client relationship involves a commercial transaction. Under I.C. § 12-120(3), a
commercial transaction exists only if each party to the transaction enters into the transaction for a
commercial purpose. Carrillo v. Boise Tire Co., Inc., 152 Idaho 741, 756, 274 P.3d 1256, 1271
(2012). In this context, Sykes transacted with respondents for a personal, not commercial,
3
purpose. The transaction, therefore, lacked the symmetry of commercial purpose necessary to
trigger I.C. § 12-120(3). See id. Respondents are not entitled to attorney fees under I.C. § 12-
120(3).
To receive an I.C. § 12-121 award of attorney fees, the entire appeal must have been
pursued frivolously, unreasonably, and without foundation. Id. On appeal, Sykes failed to
advance any cognizable legal or factual argument that the district court erred in its determination
that the City of Boise was immune from suit. Sykes also failed to demonstrate any genuine issue
of material fact as to damages flowing from any failing of respondents, a prima facie element
under a claim in tort or contract. Consequently, having reviewed the arguments advanced by
Sykes, his claims on appeal are frivolous, unreasonable or without foundation. Therefore,
respondents are entitled to attorney fees under I.C. § 12-121.
III.
CONCLUSION
Sykes has not demonstrated that the district court erred in granting summary judgment to
respondents. Respondents are entitled to an award of attorney fees on appeal under I.C. § 12-
121. The district court’s order granting respondents’ motion for summary judgment is affirmed.
Costs and attorney fees to respondents.
Judge LANSING and Judge MELANSON CONCUR.
4