Estate of Fleming v. Nicholson

• Decision Date: 11 December 1998
• Docket Number: No. 97-360.,97-360.
• Court: Vermont Supreme Court
• Parties: ESTATE OF FLEMING v. David NICHOLSON, et al.

724 A.2d 1026

ESTATE OF FLEMING v. David NICHOLSON, et al.

No. 97-360.

Supreme Court of Vermont.

December 11, 1998.

Grant C. Rees of Lobe & Rees, Burlington, for Plaintiff-Appellee.

Douglas C. Pierson, William H. Quinn, Thomas H. Higgins and James Preston of Pierson, Wadhams, Quinn & Yates, Burlington, for Defendants-Appellants.

Robert M. Paolini, Montpelier, for Amicus Curiae Vermont Bar Association.

Present: AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

JOHNSON, J.

Defendants, David Nicholson and the law firm of Nicholson & Taylor, P.C., appeal an order of the superior court granting partial summary judgment to plaintiff, estate of Edward Fleming, and an order awarding plaintiff prejudgment interest on damages. In granting summary judgment to plaintiff, the court found defendants negligent as a matter of law for failing to disclose a lack of a subdivision permit discovered while performing a title search on property plaintiff contemplated purchasing. After an evidentiary hearing was held regarding the computation of damages, the court calculated and awarded damages to plaintiff in the amount of $55,766.00 and prejudgment interest in the amount of $59,695.60. Defendants now argue that the trial court erred in granting summary judgment to plaintiff because there was no expert testimony presented concerning the standard of care for attorneys in Vermont and because defendant Nicholson was reasonable in not disclosing the defect in title. In addition, defendants argue that the court should not have granted prejudgment interest because the plaintiff's damages were not readily ascertainable. We affirm the grant of summary judgment and the award of prejudgment interest.

In 1988, Edward Fleming retained the law firm of Nicholson & Taylor, P.C., to conduct a title search on a parcel of land he was considering purchasing. While performing the search, defendant Nicholson discovered that the parcel was carved out of a larger piece of land in 1976 with the aid of a deferral of subdivision permit issued by the Department of Environmental Conservation (DEC). Defendant also discovered that in the late 1970's a dwelling and wastewater system were constructed on the property without a subdivision permit and in violation of the deferral of permit. At the time of the title search, the DEC followed a 1984 nonenforcement policy with regard to subdivision violations. Relying on this nonenforcement policy, defendant decided not to inform Fleming of the subdivision violation. Fleming, believing there were no title defects, purchased the property for $66,500.00. Unbeknownst to Fleming, the DEC rescinded the nonenforcement policy in 1989. In 1991, Fleming refinanced his mortgage on the property and died a year later. In 1994, Fleming's estate contracted to sell the property for $94,000.00, but the discovery of the subdivision violation terminated the contract. Fleming's mortgagee subsequently foreclosed on the property and sold the property at a decreased value of $10,734.00 in 1995.

The administrator of Fleming's estate, Grant C. Rees, then brought a legal malpractice action against Nicholson & Taylor, P.C., and against David Nicholson, Esq. and Todd Taylor, Esq. individually. Plaintiff moved for summary judgment on the issue of defendant's liability, and defendant Taylor filed a cross-motion for summary judgment. The court granted Taylor's motion, and plaintiff has not appealed the decision in favor of Taylor. The court granted summary judgment on the issue of liability as against defendants Nicholson and Nicholson and Taylor, P.C., holding defendant Nicholson negligent as a matter of law for failing to inform his client of the permit deferral and lack of a subdivision permit for the dwelling and wastewater system.¹ An evidentiary hearing was held regarding the computation of damages (plaintiff waived trial by jury), and the court awarded plaintiff damages in the amount of $55,766.00 plus $59,65.60 in prejudgment interest.

I.

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Madden v. Omega Optical, Inc., 165 Vt. 306, 309, 683 A.2d 386, 389 (1996).

In a legal malpractice action, a plaintiff must prove that the attorney was in fact negligent and that this negligence was the proximate cause of the plaintiff's injury. See Brown v. Kelly, 140 Vt. 336, 338, 437 A.2d 1103, 1104 (1981). Generally, negligence by professionals is demonstrated using expert testimony to: (1) describe the proper standard of skill and care for that profession, (2) show that the defendant's conduct departed from that standard of care, and (3) show that this conduct was the proximate cause of plaintiff's harm. See Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 313, 449 A.2d 900, 902 (1982). If the alleged negligent conduct is a matter of judgment unique to that profession, the above elements must be established by expert testimony to assist the trier of fact in determining negligence. See Tetreault v. Greenwood, 165 Vt. 577, 578, 682 A.2d 949, 950 (1996) (mem.) (expert testimony required to show that defendant failed to adhere to standard of care commonly exercised by Vermont attorneys when conducting title search).

There are situations, however, where expert testimony is not needed. Where a professional's lack of care is so apparent that only common knowledge and experience are needed to comprehend it, expert testimony is not required to assist the trier of fact in finding the elements of negligence. See Largess v. Tatem, 130 Vt. 271, 279, 291 A.2d 398, 403 (1972) (expert testimony required to assist trier of fact in answering scientific and technical questions, but not questions that can be answered with reference to common knowledge); South Burlington Sch. Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt. 33, 46, 410 A.2d 1359, 1365 (1980) (expert testimony not required where facts are such that layperson would know that breach of duty of care was proximate cause of injury).

Here, defendant's lack of care under the circumstances was so apparent that no expert testimony was required. In general, the standard of care to which an attorney is held in rendering professional services is the degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent attorney practicing in the jurisdiction of Vermont. See Russo v. Griffin, 147 Vt. 20, 24, 510 A.2d 436, 438 (1986). Defendant argues that expert testimony was needed to assist the trier of fact in determining whether his conduct conformed to that standard, that is, whether a reasonable, careful, and prudent Vermont attorney would have disclosed the existence of the subdivision violation, taking into account the existence of the nonenforcement policy. We disagree.

Defendant relies on Tetreault to argue that a trier of fact requires the guidance of expert testimony in assessing an attorney's conduct with respect to a title search. See Tetreault, 165 Vt. at 578,682 A.2d at 950-51. Defendant's reliance on Tetreault is misplaced, however, because the negligent conduct at issue in Tetreault is distinguishable from the conduct at issue in this case. In Tetreault, the plaintiffs brought a malpractice claim against their attorney, claiming that the attorney was negligent in failing to discover and advise them of subdivision permit violations on the property they were purchasing. See id. We held that expert testimony was required to prove both the standard of care and whether there had been a breach of the standard. The central question concerned the process and common activities performed during a title search, a task which is unique to the profession and therefore created the need for expert testimony. In the present case, defendant's aptitude in performing the title search is not at issue; rather, the finding of negligence is premised upon his failure to disclose important information to his client, namely, the permit violations that could diminish the value of the subject property.

That defendant's nondisclosure of this information proximately caused plaintiff's loss is also apparent. Defendant ultimately prevented his client from making an informed decision about whether to purchase the property. Defendant is the source from which Fleming would have expected to receive such information, and absent that information, Fleming would have necessarily misapprehended the value of the property. The issues of whether defendant had a duty to disclose the permit violation, whether he breached that duty, and whether the breach proximately caused plaintiff's injury are not technical issues that require the assistance of an expert in order for a trier of fact to be able to comprehend them. The question, then, in reviewing the grant of summary judgment, is whether defendant has raised any genuine issues of material fact concerning the elements of negligence.

Defendant argues that the majority of attorneys in Vermont, with knowledge of the non-enforcement policy, would not have disclosed the permit violations, and that his conduct was therefore reasonable. We reject the notion that the practice of the majority of attorneys conclusively establishes the standard of care. While the standard of care is based on the "degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent" Vermont lawyer, Russo, 147 Vt. at 24, 510 A.2d at 438, the conduct of the majority of Vermont lawyers does not define "reasonableness" per se. It is ultimately the role of the courts to define this standard. "Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission." The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.1932); see also, e.g., Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981, 983 (1974) (where standard...