Sternberg v. Lechman-Su

450
Submitted September 7, 2018, affirmed September 18, 2019
Gayle A. STERNBERG,
Plaintiff-Appellant,
v.
Bradley LECHMAN-SU,
Defendant-Respondent.
Multnomah County Circuit Court
110708916; A164881
450 P3d 37
In this legal-malpractice action, plaintiff challenges an order granting sum-
mary judgment to defendant, who represented plaintiff in a marital dissolution
case. In a previous appeal in the same case, plaintiff successfully challenged the
trial court’s dismissal of her claims on the pleadings, and the Court of Appeals
remanded to the trial court for further proceedings. In this second appeal,
plaintiff argues that the trial court erred in granting summary judgment on
plaintiff’s claims after the case was remanded. Plaintiff also contends that her
submission of a declaration under ORCP 47 E, averring that she had retained
an expert who would establish a genuine issue of material fact, was sufficient
to preclude a grant of summary judgment. Finally, plaintiff argues that the
trial court erred in awarding attorney fees to defendant because defendant was
insured. Held: Plaintiff did not produce evidence sufficient to show a genuine
factual dispute. Plaintiff was not entitled to file a declaration under ORCP 47 E,
and she did not produce any other evidence supporting the elements of her claims.
Additionally, in the circumstances present here, whether a defendant has insur-
ance does not control whether the defendant is entitled to an award of attorney
fees. Accordingly, the trial court did not err in granting summary judgment or
awarding attorney fees.
Affirmed.
Marilyn E. Litzenberger, Judge.
Gayle A. Sternberg filed the briefs pro se.
Jonathan M. Radmacher and McEwen Gisvold LLP filed
the brief for respondent.
Before Hadlock, Presiding Judge, and DeHoog, Judge, and
Aoyagi, Judge.
HADLOCK, P. J.
Affirmed.
Cite as 299 Or App 450 (2019) 451
HADLOCK, P. J.
This is the second of plaintiff’s appeals in her legal-
malpractice litigation against defendant, who represented
plaintiff in a marital dissolution case. In Sternberg v.
Lechman-Su, 271 Or App 401, 402, 350 P3d 593, rev den,
358 Or 69 (2015), we addressed the trial court’s dismissal
of plaintiff’s third amended complaint, which was based
on the trial court’s determination that, to the extent that
any of plaintiff’s claims stated a claim for legal malprac-
tice, they were barred by the applicable limitations period.
Id. at 404. We disagreed, holding that some of plaintiff’s
specifications of negligence stated a claim for relief and were
not untimely as described in the complaint. Id. at 407. We
therefore reversed and remanded “for further proceedings
on those specifications.” Id. at 402. On remand, the trial
court granted summary judgment to defendant; plaintiff
has again appealed. As explained below, we reject each of
the arguments that plaintiff makes on appeal. Accordingly,
we affirm.
The arguments that plaintiff makes on appeal
mostly center around the propriety of the trial court hav-
ing granted defendant’s motion for summary judgment on
remand after we issued our opinion in Sternberg. To pro-
vide context for those arguments, we briefly summarize our
holding in Sternberg and the proceedings that led up to the
trial court granting defendant’s motion. Most of the pro-
cedural facts that we set out below are undisputed; to the
extent that the parties disagree about procedural facts, we
describe them in keeping with the trial court’s rulings.
PROCEDURAL HISTORY
The issue on appeal in Sternberg was whether the
trial court erred when it dismissed plaintiff’s third amended
complaint, which included 49 specifications of negligence.
Id. at 407. In Sternberg, we listed certain specifications, iden-
tified by the particular paragraphs of the third amended
complaint in which they appeared, that “state[d] a claim and
at least raise[d] a question of fact about whether they [were]
time barred.” Id. We explained that the other specifications
in plaintiff’s third amended complaint “fail[ed] to state a
452 Sternberg v. Lechman-Su
claim, on their face [were] barred by the statute of limita-
tions, or both.” Id. Accordingly, we reversed and remanded
“for further proceedings on only [the listed] specifications
of negligence” identified, in bullet points, as those that the
trial court should not have dismissed. Id. at 405 (emphasis
added).
At a July 2016 hearing on remand, the court and
the parties agreed on November 7, 2016, as the date for
trial. In the interim, defendant filed an answer and affir-
mative defenses, and he also moved for summary judgment
against each of plaintiff’s specifications of negligence that
had survived our decision in Sternberg. With respect to each
of those specifications, defendant asserted that he had met
the applicable standard of care and contended that plain-
tiff could not establish otherwise. Defendant also argued
that plaintiff could not present a prima facie case that any
act or omission by defendant had caused plaintiff damages;
in addition, he asserted that each of plaintiff’s claims was
time-barred. Defendant supported the summary judgment
motion with evidence related to the underlying dissolution
proceeding and defendant’s representation of plaintiff in
that case.
Plaintiff filed a response to defendant’s summary
judgment motion, but she made no attempt to counter the
arguments that defendant had made with respect to each
surviving specification of negligence. Instead, plaintiff
argued generally that she had a constitutional right to a jury
trial and asserted broadly that any “purported evidence or
claims put forth by Defendant does not reflect the full facts
and truth of this case.” Relying on ORCP 47 E, plaintiff filed
a declaration averring that she had “retained a qualified
expert who is available and willing to testify to admissible
facts or opinions creating a question of fact and who has
provided facts which would be a sufficient basis for denying
the Summary Judgment motion.” In a reply memorandum,
defendant argued that plaintiff’s ORCP 47 E averment did
not suffice to create a genuine issue of fact as to all of the
elements of her malpractice claims. Plaintiff filed a response
to that memorandum. In it, she did not contest defendant’s
assertion that her ORCP 47 E averment was insufficient to
create a genuine dispute of fact on all of the elements of her
Cite as 299 Or App 450 (2019) 453
claims. Instead, she simply reiterated her contention that
she had a right to a jury trial.
The summary judgment motion was heard by an
assigned motion judge on October 12, 2016. That judge
denied the motion without comment after also resolving dis-
covery matters and other related disputes.
A pretrial hearing was held on November 4, 2016.
In a trial memorandum hand-delivered to plaintiff that
same day, defendant renewed his motion for summary judg-
ment, asking the trial judge to reconsider the motion judge’s
denial of that motion.
On November 7, the trial court discussed with
the parties what specifications of negligence remained for
trial following remand in Sternberg. Plaintiff denied that
Sternberg had limited the issues for trial, asserting that
the opinion “said that all of [plaintiff’s] complaints were
filed timely so none should have been thrown out for that.”
Plaintiff steadfastly maintained that position even after the
court read aloud and explained Sternberg. A lengthy collo-
quy then ensued on motions in limine made by defendant,
most of which were aimed at keeping plaintiff’s evidence
and argument limited to the surviving specifications of
negligence.
Later in the pretrial hearing, defendant orally
renewed his motion for summary judgment, as he had done
in his trial memorandum. Defendant noted that plaintiff
had not submitted any evidence in response to the motion
and that she had relied solely on her ORCP 47 E averment.
Defendant and the trial court discussed the court’s author-
ity to reconsider the motion judge’s ruling; they also dis-
cussed the merits of the summary judgment motion with
respect to each of the specifications of negligence remain-
ing in the case. The court also engaged plaintiff, asking
whether she had offered any evidence in response to a
particular issue raised in the summary judgment motion.
Plaintiff responded negatively, stating that she “was pretty
frustrated with that summary judgment [motion]” because
she did not feel that she should have to present her whole
case in response to the motion, and she “might as well go
to trial.” Plaintiff insisted that she was entitled to “a jury
454 Sternberg v. Lechman-Su
trial on the face of [her] complaint.” And, consistently with
that assertion, plaintiff attempted to rely on the allegations
in her third amended complaint as sufficient to defeat the
summary judgment motion.
After signaling that it would grant defendant’s sum-
mary judgment motion, and after having read and explained
ORCP 47 to plaintiff—including the requirements for an
ORCP 47 E affidavit—the trial court gave plaintiff another
opportunity to explain how she had met the standard for
responding to a summary judgment motion. In response,
plaintiff merely reiterated that she should be allowed a jury
trial. Later, by way of objections to a proposed form of order
submitted by defendant, plaintiff also challenged, among
other things, the trial court’s authority to reconsider the
motion judge’s denial of the summary judgment motion. The
court rejected those objections.
In its written order granting defendant’s summary
judgment motion, the trial court observed that plaintiff
had not presented any “substantive arguments with regard
to the ‘standard of care,’ or with regard to the elements of
causation and damages, or with regard to the statute of lim-
itations arguments.” With respect to plaintiff’s ORCP 47 E
averment, the court observed that the pro se declaration was
insufficient to create a question of fact with regard to the
standard of care “because only a party’s attorney is autho-
rized to sign a Declaration under ORCP 47 E” and plaintiff
admitted that she had not “retained a lawyer to testify.”
Defendant then moved for an award of costs and
sought attorney fees under ORCP 47 G for what he char-
acterized as plaintiff’s bad-faith response to his summary
judgment motion. Over plaintiff’s objection, the court granted
that motion in part, awarding costs and also awarding
defendant $3,100 in attorney fees because there was “no
basis in law” for the way in which plaintiff used ORCP 47 E
to attempt to create a genuine issue of material fact.
PLAINTIFF’S ARGUMENTS ON APPEAL
AND ANALYSIS
On appeal, plaintiff raises five assignments of error,
making several arguments in conjunction with each. We
Cite as 299 Or App 450 (2019) 455
address each of the assignments of error below. We have
considered all of the arguments that plaintiff presents on
appeal and, to the extent that those arguments are not
described below, we reject them without discussion.
In her first assignment of error, plaintiff challenges
several aspects of the trial court’s summary judgment rul-
ing. First, she contends that the trial court erred by allow-
ing defendant to renew his motion for summary judgment
after the motion judge had denied it. We disagree. It gen-
erally is permissible for one judge, in a multi-judge court,
to reconsider a colleague’s ruling. State v. Demings, 116
Or App 394, 396, 841 P2d 660 (1992), rev den, 315 Or 443(1993). Plaintiff has not explained why that general princi-
ple should not apply here. Next, plaintiff appears to contend
that summary judgment proceedings inherently interfere
with a plaintiff’s constitutional right to trial by jury. That is
not correct. “[A]n otherwise proper grant of summary judg-
ment does not violate constitutional jury trial protections.”
Fujitsu Microelectronics, Inc. v. Lam Research Corp., 174 Or
App 513, 522, 27 P3d 493, rev den, 332 Or 558 (2001).
Also in conjunction with her first assignment of
error, plaintiff contends that the trial court erred in grant-
ing defendant’s summary judgment motion because the court
did not have a complete record of the dissolution proceeding
before it. That may well be true, but it does not establish that
the trial court committed any error. Summary judgment
motions are governed by ORCP 47, which provides, in part:
“The court shall grant the motion [for summary judgment]
if the pleadings, depositions, affidavits, declarations, and
admissions on file show that there is no genuine issue as
to any material fact and that the moving party is enti-
tled to prevail as a matter of law. No genuine issue as to a
material fact exists if, based on the record before the court
viewed in a manner most favorable to the adverse party,
no objectively reasonable juror could return a verdict for
the adverse party on the matter that is the subject of the
motion for summary judgment. The adverse party has the
burden of producing evidence on any issue raised in the
motion as to which the adverse party would have the bur-
den of persuasion at trial.”
ORCP 47 C.
456 Sternberg v. Lechman-Su
Thus, once defendant moved for summary judg-
ment, arguing that plaintiff could not establish certain ele-
ments of her negligence claims, it was plaintiff’s responsi-
bility to produce evidence showing that she could, in fact,
meet her burden to prove those elements. See Two Two v.
Fujitec America, Inc., 355 Or 319, 324, 325 P3d 707 (2014)
(“[U]nder ORCP 47 C, the party opposing summary judg-
ment has the burden of producing evidence on any issue
‘raised in the motion’ as to which [it] would have the bur-
den of persuasion at trial.”). In other words, it was plaintiff’s
obligation to ensure that the trial court had evidence before
it—such as documents from the dissolution proceeding—
establishing that plaintiff had evidence sufficient to create a
genuine factual dispute that a jury should resolve. Because
plaintiff did not submit any such evidence in response to
defendant’s summary judgment motion, the trial court did
not err when it ruled in defendant’s favor.
In her second assignment of error, plaintiff argues
that the trial court should have denied defendant’s sum-
mary judgment motion based on our decision in Sternberg.
That is not correct. In Sternberg, we held only that plain-
tiff’s third amended complaint alleged facts, regarding
certain specifications of negligence, that were sufficient to
withstand defendant’s motion to dismiss the complaint. 271
Or App at 407-10. In the circumstances presented by this
case, that ruling had nothing to do with whether defendant
would later be able to establish an entitlement to summary
judgment. Plaintiff also argues that the trial court should
have denied defendant’s summary judgment motion based
on the allegations in her complaint, despite plaintiff hav-
ing failed to proffer any evidence in response to the motion.
That argument fails in light of ORCP 47 D, which provides
that, “[w]hen a motion for summary judgment is made and
supported as provided in [ORCP 47], an adverse party may
not rest on the mere allegations or denials of that party’s
pleading[.]” Finally, plaintiff suggests that the evidence that
defendant submitted in conjunction with his summary judg-
ment motion did not establish his entitlement to judgment.
But plaintiff did not make such an argument in opposition
to the motion. Moreover, even if the arguments that plain-
tiff belatedly makes on appeal had been preserved, they are
Cite as 299 Or App 450 (2019) 457
insufficiently focused—being essentially untethered to the
record in the summary judgment proceeding or to the spe-
cific elements of the surviving specifications of negligence—
to present a basis for reversal.
In conjunction with her third and fourth assign-
ments of error, plaintiff suggests that the declaration she
submitted under ORCP 47 E was sufficient to overcome
defendant’s summary judgment motion. As noted, plaintiff
did submit a declaration under ORCP 47 E, averring that
she had retained an expert who would establish a genuine
issue of material fact. However, as the trial court ruled, only
a party’s attorney may submit such an affidavit or decla-
ration. See Thorson v. Bend Memorial Clinic, 291 Or App
33, 37, 419 P3d 756, rev den, 363 Or 481 (2018) (“[A] self-
represented party may not rely on an ORCP 47 E affidavit to
defeat a motion for summary judgment.”). Plaintiff argues
that such a limitation is unconstitutional. However, plain-
tiff did not meaningfully develop a constitutional argument
below and has not done so on appeal. Plaintiff’s undeveloped
argument does not present a basis for reversal. Cf. id. at
38-39 (characterizing analogous constitutional arguments
as involving “complex questions of state and federal consti-
tutional law”); see State v. Harrison, 290 Or App 766, 768
n 3, 417 P3d 513 (2018) (declining to address undeveloped
constitutional argument). Moreover, plaintiff never disputed
defendant’s assertion that, in this case, an expert would
be able to create a genuine dispute of fact about only the
standard of care and not about other elements of plaintiff’s
claims, including causation and damages. For all of those
reasons, the trial court did not err when it ruled that plain-
tiff’s ORCP 47 E affidavit was insufficient to defeat defen-
dant’s summary judgment motion.1
Finally, in her fifth assignment of error, plaintiff
challenges the award of costs and fees to defendant. Plaintiff
suggests that the trial court erred in awarding fees and
costs because those expenses would be paid by defendant’s
1
After the trial court entered judgment in this case, plaintiff filed a motion
asking the trial court to reverse its ruling on the summary judgment motion and
to set aside the judgment. The court denied that motion. Plaintiff challenges that
ruling in her third assignment of error. We reject all of plaintiff’s arguments on
that issue without discussion.
458 Sternberg v. Lechman-Su
malpractice insurer. Defendant argues that plaintiff’s argu-
ment is defeated by Domingo v. Anderson, 325 Or 385, 389-
90, 938 P2d 206 (1997). In that case, which was based in
part on a trust deed, the trial court entered judgment for the
defendants. Id. at 387. One of the defendants then sought
an award of attorney fees based on the terms of the trust
deed, and the trial court awarded those fees. Id. at 388. We
reversed, holding that the defendant was not entitled to an
award of fees because he was insured and, therefore, would
have “no obligation to pay for the legal services that he had
received.” Id. The Supreme Court reversed us on that point,
holding that the defendant’s contractual entitlement to
attorney fees justified the fee award, regardless of whether
“he was personally obligated to pay for [his lawyer’s] ser-
vice.” Id. at 390.
The Supreme Court reiterated that point in Menasha
Forest Products Corp. v. Curry County Title, 350 Or 81, 89,
249 P3d 1265 (2011), holding that the “phrase ‘attorney fees,’
when used in the context of an attorney fee award, means
the reasonable value of an attorney’s services, whether or not
the client was required to pay for those services.” (Internal
quotation marks omitted.) It noted the possibility that a
particular statutory or contractual fee provision might
“modif[y] [that] usual conception of attorney fees” by narrow-
ing the circumstances under which fees will be recoverable.
Id. However, the use of the word “incur” in such a provision
does not itself limit a party’s right to recover fees: “whether
or by what means a party to a legal action (or someone else)
pays an attorney’s bill has no bearing on the question of
whether the party ‘incurred’ attorney fees.” Id. at 90.
Here, the trial court awarded fees under ORCP 47 G,
which provides in pertinent part that a court “shall order”
a party who presented an ORCP 47 affidavit or declaration
in bad faith “to pay to the other party the amount of the
reasonable expenses that the filing of the affidavit or decla-
ration caused the other party to incur, including reasonable
attorney fees.” Plaintiff has not explained any way in which
ORCP 47 G modifies the “usual conception” of attorney fees
described in Domingo and Menasha Forest Products, and
we do not perceive one. Accordingly, plaintiff’s reference to
Cite as 299 Or App 450 (2019) 459
defendant’s insurance does not present a basis for reversing
the trial court’s award of costs and fees.
CONCLUSION
In sum, none of the arguments that plaintiff pres-
ents on appeal establishes a basis for reversing any aspect
of the trial court’s judgment. Accordingly, we affirm.
Affirmed.