Luttgen v. Fischer

Citation107 P.3d 1152
Decision Date13 January 2005
Docket NumberNo. 03CA1739.,03CA1739.
PartiesPatricia J. LUTTGEN, Plaintiff-Appellant, v. Erik G. FISCHER, Defendant-Appellee.
CourtCourt of Appeals of Colorado

Peggy Stevens & Associates, P.C., Peggy E. Stevens, Lakewood, Colorado, for Plaintiff-Appellant.

Kennedy Christopher Childs & Fogg, P.C., John R. Mann, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge DAILEY.

In this action for legal malpractice, plaintiff, Patricia J. Luttgen, appeals from the summary judgment entered in favor of defendant, Erik G. Fischer. We affirm.

In 1993, Luttgen, a veterinarian, was looking for property to use as a veterinary hospital. To this end, she entered into negotiations with Manatee, Incorporated, Gustav Leitzke, and his wife, Annette Leitzke (collectively, Leitzke), for a lease-purchase agreement with respect to certain property. She intended to lease the property for a certain amount of time and make substantial renovations during that lease period; once the renovations were complete, Luttgen wanted to purchase the property. She and Leitzke reached oral agreement on a lease-purchase arrangement. However, the final documents executed between Luttgen and Leitzke contained only a lease for years and not a purchase option.

Luttgen sought and received legal advice about the Leitzke transaction from Fischer's father, who practiced law separately from Fischer. Fischer's father referred her to Fischer, with whom she maintained an attorney-client relationship from October 1994 until the summer of 1997. She hired a third attorney in January of 1998. Although no written purchase agreement was ever executed, Luttgen stayed on the property, after having substantially renovated it at her own expense, until the lease expired on March 31, 1998.

On March 31, 2000, Luttgen, represented by yet a different attorney, filed suit against Leitzke, asserting claims of breach of contract, breach of warranty, unlawful withholding of her security deposit, unjust enrichment, promissory estoppel, fraud, and negligent misrepresentation. The trial court dismissed her claims for unjust enrichment, promissory estoppel, fraud, and negligent misrepresentation on statute of limitations grounds. On the same grounds, the court also dismissed that part of Luttgen's breach of contract claim relating to Leitzke's failure to abide by the terms of the oral option agreement. The remaining claims — breach of warranty (use and occupation), breach of contract (lease), and unlawful withholding of her security deposit — were resolved after a trial to a jury. Luttgen was awarded damages on her claims for breach of warranty and unlawful withholding of security deposit.

Subsequently, in December 2001, Luttgen initiated this malpractice action, asserting negligence and breach of fiduciary duty by Fischer because he failed to advise her of the claims against Leitzke and of the limited time within which she had to pursue those claims.

Upon Fischer's motion, the trial court dismissed Luttgen's action, concluding that, as a matter of law, Luttgen could not prevail because she could not show any injury from Fischer's alleged failure to protect her from statute of limitation consequences. The court reached this conclusion by determining that (1) the breach of contract claim with respect to the oral purchase agreement failed as a matter of law, independently of the statute of limitations, because of the statute of frauds or the merger clause in the lease; (2) the claims of unjust enrichment, promissory estoppel, and negligent misrepresentation were likewise independently barred because Luttgen's own statements evidenced a lack of reliance on Leitzke's promises; and (3) Luttgen prevailed on her breach of warranty claim against Leitzke.

On appeal, Luttgen challenges only the dismissal of her negligence, but not her breach of fiduciary duty, claim against Fischer.

I. General Legal Standards

To succeed on a legal malpractice claim founded in negligence, a plaintiff must establish that (1) the attorney owed a duty of care to the plaintiff; (2) the attorney breached that duty; and (3) the attorney proximately caused damage to the plaintiff. Establishing causation in a legal malpractice action requires the plaintiff to prove what has been characterized as a "case within a case," that is, the plaintiff must demonstrate that the claim underlying the malpractice action would have been successful if the attorney had acted in accordance with his or her duties. Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 83 (Colo.1999).

The trial court resolved this case on the basis of Luttgen's inability to show damage proximately caused to her by Fischer. On appeal, Luttgen challenges the court's underlying determinations that (1) some of her claims against Leitzke were futile for reasons apart from the statute of limitations; and (2) she prevailed, and thus was not injured, on her remaining claims. The trial court made these determinations in a summary judgment ruling.

We review de novo the trial court's summary judgment ruling. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995).

"The purpose of summary judgment is to permit the parties to pierce the formal allegations of the pleadings and save the time and expense connected with trial when, as a matter of law, based on undisputed facts, one party could not prevail." Peterson v. Halsted, 829 P.2d 373, 375 (Colo.1992). Because summary judgment is a drastic remedy, however, it is appropriate only where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.1988).

The moving party has the burden of establishing the lack of a genuine issue of material fact. If the moving party does so, the burden then shifts to the nonmoving party to demonstrate that there is a triable issue of material fact. Quist v. Specialties Supply Co., 12 P.3d 863, 868 (Colo.App.2000). If the nonmoving party does not submit evidence, or point the court to particular evidence already of record, to make out a triable issue of material fact, then the moving party is entitled to summary judgment as a matter of law. See Guar. Bank & Trust Co. v. LaSalle Nat'l Bank, ___ P.3d ___, ___, 2004 WL 2278343 (Colo.App. No. 03CA1309, Oct. 7, 2004); Walter v. City & County of Denver, 983 P.2d 88, 90 (Colo.App.1998). On review of a summary judgment ruling, we do not consider arguments and evidence that were not presented to the trial court. Timm v. Reitz, 39 P.3d 1252, 1255 (Colo.App.2001); see Bush v. State Farm Mut. Auto. Ins. Co., 101 P.3d 1145, 1146 (Colo.App.2004)

(appellate court reviews the record and motion in the same manner as the trial court). We view all evidence properly before the trial court in the light most favorable to the nonmoving party, see Redmond v. Chains, Inc., 996 P.2d 759, 762 (Colo.App.2000), give the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the evidence, and resolve all doubts as to the existence of a material fact against the moving party. Schold v. Sawyer, 944 P.2d 683, 684 (Colo.App.1997).

With these principles in mind, we review the trial court's determinations regarding each of Luttgen's underlying claims against Leitzke.

II. Breach of Contract on the Purchase Option Agreement

Luttgen contends that the trial court erred in determining that her breach of contract claim, with respect to the purchase option agreement, was barred as a matter of law on grounds independent of the statute of limitations defense asserted in the Leitzke case. We disagree.

Under the statute of frauds, any contract for the sale of land or interest therein must be expressed in a writing signed by the selling or granting party. Section 38-10-108, C.R.S.2004. Such a contract must identify the parties to the transaction, the terms and conditions, a description of the property, and the consideration. Schreck v. T & C Sanderson Farms, Inc., 37 P.3d 510, 513 (Colo.App.2001). A purchase option agreement with respect to leased property is an irrevocable offer to sell that property to the lessee for a specified consideration and is subject to the statute of frauds. Boyer v. Karakehian, 915 P.2d 1295, 1298 (Colo.1996).

There is no dispute that the oral purchase agreement between Luttgen and Leitzke was never reduced to a writing signed by Leitzke. Likewise, Luttgen does not dispute the fact she knew the purchase option itself was not contained in the written lease when she and Leitzke signed it. Accordingly, absent an exception to the application of the statute of frauds, the oral option agreement is void and unenforceable as a matter of law. See Boyer v. Karakehian, supra.

Luttgen asserts that her renovation of the property, at her expense, qualified as part performance on the oral purchase agreement, precluding application of the statute of frauds under A & R Co. v. Union Air Transport, Inc., 738 P.2d 73, 74 (Colo.App.1987). Inasmuch as this argument was never presented to the trial court, however, we do not now consider it. See Timm v. Reitz, supra, 39 P.3d at 1255

(arguments not presented to the trial court in connection with a motion for summary judgment will not be considered on appeal).

Because Luttgen proffered no exception to the statute of frauds that would allow her to enforce the oral purchase agreement, we, like the trial court, conclude that any breach of contract claim related to that agreement would have failed as a matter of law, independent of any statute of limitations concerns.

Given the manner in which we have resolved this issue, we need not address the trial court's other independent ground upon which this claim would have failed, namely the merger clause contained in the lease.

III. Other Claims Regarding the Purchase Option Agreement

Luttgen also contends that the trial court erred in determining that her...

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