Moore v. Does 1 to 25 , 52 State Rptr. 399 ( 1995 )

NO. 94-531
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
DANIEL E. MOORE and DOLORES MOORE,
individually, and as husband and wife,
Plaintiffs and Appellants,
-VS-
DOES 1 TO 25, inclusive, each in their
individual and professional capacities
and each other and with COURT E. BALL,
Esq., individually, as an attorney at
law and in his business relationships
with DOES 1 TO 25, inclusive,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Don Edgar Burris, Attorney at Law, Billings,
Montana
For Respondents:
Peter F. Habein; Crowley, Haughey, Hanson,
Toole & Dietrich, Billings, Montana
Submitted on Briefs: April 6, 1995
Decided: May 17, 1995
Filed:
Cl&k
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Daniel E. Moore and Delores Moore brought this action for
legal malpractice in the District Court for the Thirteenth Judicial
District, Yellowstone County. The court granted defendant Court E.
Ball's motion for summary judgment. The Moores appeal. We affirm.
The issue is whether the court erred in ruling that this
action requires expert testimony and in granting summary judgment
on the basis of the Moores' failure to produce such testimony.
In January 1990, Donna Rostad and her daughters Deborah
Birchell and Kathleen Riter (sellers) agreed in writing to sell the
"Country Pride" restaurant in Big Timber, Montana, to the Moores.
The buy/sell agreement stated "[rlights to the sewer and right of
way as well as the lift station to be transferred to buyers as part
of this sale." The agreement also stated that the buyers and the
sellers were to share the legal costs of drafting the contract, but
[slellers request that their attorney represent them,
draw the closing contract and documents. Buyers may
request review of documents by their own legal counsel if
they so desire.
The sellers asked attorney Court Ball for his services. Ball
prepared various documents incident to the closing, including a
contract of sale.
Ball did not include in the contract of sale the words "rights
to the sewer and right of way as well as the lift station to be
transferred to buyers as part of this sale." Several months after
the contract was executed, another individual represented to the
Moores that he held rights to the sewer and right of way. The
Moores rescinded the contract. They then brought this action
against Ball, alleging legal malpractice.
Following discovery, Ball moved for summary judgment. The
District Court noted that a factual issue existed as to whether an
attorney/client relationship existed between the Moores and Ball.
It concluded, however, that the Moores had failed to provide
necessary expert testimony concerning the standard of care for an
attorney under these circumstances. In so concluding, the court
reasoned that the alleged misconduct by Ball was not so apparent
that a lay juror could understand the issue. The court granted
summary judgment on the basis that the Moores had failed to
establish an issue of material fact as to one element of their
cause of action, breach of an attorney's standard of care.
Did the court err in ruling that this action requires expert
testimony, and in granting summary judgment on the basis of the
Moores' failure to produce such testimony?
This Court's standard of review of an order granting summary
judgment is the same as the standard initially applied by the
district court. Minnie v. City of Roundup (1993), 257 Mont. 429,
431, 849 P.2d 212, 214. The moving party must establish the
absence of genuine issues of material fact in the record, and that
he or she is entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.P. The non-moving party may not rely upon mere conclusory
or speculative statements to oppose a motion for summary judgment,
but must produce facts of a substantial nature to show a genuine
3
issue of material,fact. Lueck v. United Parcel Service (1993), 258
Mont. 2, 9, 851 P.2d 1041, 1045.
In Lorash v. Epstein (1989), 236 Mont. 21, 767 P.2d 1335, this
Court listed the elements of a legal malpractice claim:
In pursuing a negligence or breach of contract action
against an attorney, the plaintiff must initially
establish the existence of an attorney-client relation-
ship. The plaintiff must then establish that acts
constituting the negligence or breach of contract
occurred, proximately causing damages to the plaintiff.
The final requirement for the plaintiff is the need to
establish )I [tlhat 'but for' such negligence or breach of
contract the client would have been successful in the
prosecution or defense of the action."
Lorash, 767 P.2d at 1337. In the present case, the District Court
concluded that the Moores failed to raise an issue of fact as to
the element "acts constituting negligence."
As a general rule, only expert testimony can establish the
standard of care in a legal malpractice case. Carlson v. Morton
(1987), 229 Mont. 234, 240-41, 745 P.2d 1133, 1137-38. The
exception is that no expert witness is needed if "the attorney's
misconduct is so obvious that no reasonable juror could not
comprehend the lawyer's breach of duty." Carlson, 745 P.2d at
1137.
Court Ball submitted the affidavit of attorney James W.
Thompson in support of his motion for summary judgment. Thompson
testified by affidavit that he had reviewed the documents prepared
by Ball and that those documents were in his opinion competently
prepared and effective for their intended purpose. He testified
that in his opinion the contract transferred all rights of the
4
sellers in the sewer line and the lift station serving the
property.
Thompson's expert testimony was the only independent expert
testimony offered in this case. The Moores introduced two
affidavits in connection with the motion for summary judgment.
Neither affidavit addressed the applicable standard of care for an
attorney under these circumstances.
The first affidavit submitted by the Moores was signed by the
individual who claimed an interest in the sewer line. He did not
claim to be an attorney. He set forth his point of view concerning
ownership of the sewer line. The Moores also introduced an
affidavit by their counsel in this action, Don Burris. Burris
opined that "Mr. Ball viewed himself as a scrivener only in the
transaction that is the subject of this lawsuit." Burris's
affidavit was addressed primarily to the question of whether an
attorney/client relationship existed between Ball and the Moores.
The Moores assert to this Court that a segment of the sewer
line located outside of the Country Pride property was subject to
different conveyancing requirements than a segment located on the
Country Pride property, which they now claim was never at issue.
This assertion only buttresses the argument that the standard of
care for an attorney under these circumstances is a matter not
obvious to a lay juror and requiring expert testimony.
The District Court stated, "An attorney's standard of care
involved in drafting a closing contract, specifically with how
fixtures and appurtenances should be conveyed, is complex." We
5
agree. We hold that this case required expert testimony as to the
standard of care for an attorney under the circumstances presented.
The Moores' failure to produce expert testimony that Ball did not
meet the applicable standard of care was fatal to their case.
The Moores also argue to this Court that an attorney/client
relationship existed between them and Ball. The presence of a
question of fact on that element of the action for legal malprac-
tice is irrelevant, because it was not the basis for summary
judgment.
We hold that the District Court did not err in ruling that
this action required expert testimony on the standard of care
required of Ball and in granting summary judgment in his favor
based on the Moores' failure to produce such testimony. Affirmed.
-.
LT.=- Jdf+ ief Justice
We concur: