Brenda Shores v. Owen Jenkins

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2011-125
NOVEMBER TERM, 2011
Brenda Shores } APPEALED FROM:
}
}
v. } Superior Court, Addison Unit,
} Civil Division
}
Owen Jenkins } DOCKET NO. 169-6-10 Ancv
Trial Judge: Nancy S. Corsones
In the above-entitled cause, the Clerk will enter:
Plaintiff in this legal malpractice action appeals pro se from a summary judgment in favor
of defendant attorney. We affirm.
This is the second appeal to reach the Court in this matter. In Shores v. Jenkins, No.
2010-337 (Vt. Dec. 8, 2010) (unpub. mem), we reversed a superior court order dismissing
plaintiff’s pro se malpractice complaint for failure to state a cause of action, concluding that the
trial court had relied on matters outside the pleadings, specifically evidence that there was no
attorney-client relationship between plaintiff and defendant at the time of the underlying small
claims action. We remanded with the observation that the trial court could, with proper notice,
treat the motion to dismiss as a motion for summary judgment and afford plaintiff an opportunity
“to show why the record does not conclusively undermine the claim against defendant.” Id., slip.
op. at * 2.
Following our remand, defendant moved for summary judgment. Plaintiff opposed the
motion, and the court issued a written ruling in February 2011. The undisputed facts found by
the trial court may be summarized as follows. In October 2007, plaintiff filed a small claims
action against her landlords. The following month, landlords answered and counterclaimed for
past rent due. In January 2008, plaintiff withdrew the small claims action because defendant had
agreed to represent her on a pro bono basis in superior court, after at least two other attorneys
had declined to do so. In late March 2008, however, plaintiff became dissatisfied with
defendant’s inaction and indicated that she intended to hire a different attorney. Defendant, in
response, sent plaintiff a cover letter confirming her desire “to hire another attorney” together
with the case file and superior court filing fee, and shortly thereafter moved to withdraw as
plaintiff’s counsel in the superior court. Plaintiff did not oppose the motion to withdraw, which
the trial court granted.
Plaintiff then filed a motion to reopen the small claims action. The court granted the
motion, and landlords thereupon refiled their counterclaim. Following a hearing in May 2008,
the small claims court dismissed plaintiff’s complaint and entered judgment in favor of landlords
for $2199. The superior court affirmed the judgment, and this Court denied permission to
appeal.
Based on the foregoing, the trial court here found that the only disputed fact was
whether plaintiff and defendant had any meetings between the time defendant agreed to represent
her and the time she fired him, and concluded that this was immaterial. The undisputed evidence
showed that plaintiff had discharged defendant prior to the small claims action. Thus, there was
no attorney-client relationship, and no duty of care. See Hedges v. Durrance, 2003 VT 63, ¶ 6,
175 Vt. 588 (mem.) (noting that an attorney malpractice action requires “the existence of an
attorney-client relationship which establishes a duty of care”). Moreover, even if it could be
argued that defendant should have met with plaintiff and filed her case during the short-lived
representation, the court found no basis to conclude that the omissions harmed plaintiff’s
interests. There was no claim or showing that the brief delay in the small claims case resulted in
the loss of evidence or fading of memories, and the court found that plaintiff was afforded a full
and fair hearing in the small claims proceeding and on appeal to the superior court. See id.(noting that an attorney malpractice suit requires showing “that the negligence was the proximate
cause of harm to plaintiff”). Accordingly, the court granted defendant’s motion for summary
judgment and dismissed the complaint.
Plaintiff subsequently moved for reconsideration, supported by an affidavit disputing that
she had fired defendant. The court summarily denied the motion. This pro se appeal followed.
Plaintiff’s pro se brief fails to state clearly and concisely the issues for review and
plaintiff’s arguments on appeal, with appropriate citations to the authorities and portions of the
record relied on, as required by V.R.A.P. 28(a). Having nevertheless examined the record, we
find no basis to disturb the judgment. Regardless of whether or not defendant was fired, it is
undisputed that defendant had withdrawn as counsel with the trial court’s permission, and
therefore owed no duty of care to plaintiff in her unsuccessful small claims action. Furthermore,
there is no showing that any possible omissions prior to that time had any adverse effect on the
landlord-tenant dispute. Accordingly, we find no basis to disturb the judgment.
BY THE COURT:
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Paul L. Reiber, Chief Justice
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John A. Dooley, Associate Justice
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Brian L. Burgess, Associate Justice
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