Dennis v. Northcutt, 1040503.

• Decision Date: 19 August 2005
• Docket Number: 1040503.
• Citation: 923 So.2d 275
• Parties: Gregory DENNIS v. Walter M. NORTHCUTT.
• Court: Alabama Supreme Court

923 So.2d 275

Gregory DENNIS v. Walter M. NORTHCUTT.

1040503.

Supreme Court of Alabama.

August 19, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph J. Boswell, P.C., Mobile, for appellant.

Walter M. Northcutt, pro se.

On Application for Rehearing

LYONS, Justice.

On July 8, 2005, this Court affirmed the trial court's summary judgment for Walter M. Northcutt without an opinion. In his application for rehearing, Gregory Dennis, the appellant, makes the following statement about this Court's issuance of a no-opinion affirmance in this case:

"A reasonable inference could be fairly drawn ... that this Court's decision to affirm the summary judgment entered in favor of [Northcutt] by the specially appointed acting circuit judge in this action (retired Alabama Supreme Court Chief Justice Perry O. Hooper, Sr.) with `NO OPINION' (without citing any controlling existing precedent) was due to this Court's unwillingness to embarrass the retired Chief Justice by reversing the second summary judgment entered by him in this action."

This assertion is erroneous. We withdraw our no-opinion affirmance of the trial court's judgment and substitute the following opinion therefor.

I. Facts and Procedural History

This is the second time this legal-malpractice case has come before this Court. The first time, we reversed the trial court's summary judgment in favor of Northcutt and remanded the case for further proceedings. See Dennis v. Northcutt, 887 So.2d 219 (Ala.2004). On remand, Northcutt again moved for a summary judgment, which the trial court granted, and Gregory Dennis appeals.

The essential facts underlying this dispute are as follows. Dennis retained Richard Meelheim and Christa Meelheim of Meelheim and Rea, P.C., to represent him in an employment-discrimination action in the federal district court. The district court dismissed that action, and Dennis subsequently retained Northcutt, who pursued a legal-malpractice action against Meelheim and Rea, P.C. ("the first malpractice action").¹

After Northcutt successfully moved to withdraw as Dennis's counsel in the first malpractice case, Dennis pursued the legal-malpractice action against Meelheim and Rea pro se. Despite his efforts, the first malpractice action was dismissed, and he subsequently filed the instant legal-malpractice action against Northcutt.

Northcutt filed a motion for a summary judgment, which the trial court granted based on the statute of limitations set forth in § 6-5-574(a), Ala.Code 1975:

"(a) All legal service liability actions against a legal service provider must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. . . ."

(Emphasis added.) This Court reversed the summary judgment, holding that the discovery exception applied and that Dennis had filed the legal-malpractice claim against Northcutt within the six-month window provided by that exception. Dennis v. Northcutt, 887 So.2d at 222.

Our decision was released on February 13, 2004. Northcutt filed another motion for a summary judgment on July 7, 2004. The trial court granted that motion on December 3, 2004, holding that Dennis had failed to produce substantial evidence indicating that, but for Northcutt's alleged breach of the standard of care, he would have prevailed in either his first malpractice action against Meelheim and Rea, who represented him in the employment-discrimination action, or in the employment-discrimination action itself. See, generally, Independent Stave Co. v. Bell, Richardson & Sparkman, P.A., 678 So.2d 770, 772 (Ala.1996) ("`[I]n a legal malpractice case, the plaintiff must show that but for the defendant's negligence he would have recovered on the underlying cause of action....'" (quoting McDuffie v. Brinkley, Ford, Chestnut & Aldridge, 576 So.2d 198, 199 (Ala.1991))). See also § 6-5-579(a), Ala.Code 1975 ("If the liability to damages of a legal services provider is dependent... upon the resolution of a[n] underlying action ... the court shall upon the motion of the legal services provider, order the severance of the underlying action for separate trial."). The trial court's order states:

"With the exception of a one-year stay during appeal, the parties have had approximately eighteen (18) months since the filing of this lawsuit to conduct discovery. Despite the lengthy discovery period, the plaintiff is unable to provide the Court with sufficient proof to overcome summary judgment.

"....

"To overcome a summary judgment motion in a legal services liability action, a plaintiff must introduce evidence that in the absence of the alleged negligence, the outcome of the underlying case would have been different.... Although the plaintiff has produced the affidavit of George Huddleston, Esquire, to support his claim against the defendant,[²] he has failed to offer any evidence to reinforce the underlying claim against either Ms. Meelheim [one of the attorneys who represented Dennis in his employment-discrimination action³] or Scott Paper Company [the defendant in the employment-discrimination action]."

II. Standard of Review

"The standard of review applicable to a summary judgment is the same as the standard for granting the motion. . . ." McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

"A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala.R.Civ.P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present `substantial evidence' creating a genuine issue of material fact—`evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)."

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994).

III. Analysis

A.

Dennis appears to argue that he is required to produce substantial evidence indicating only that the result of his first malpractice action would have been different but for the alleged breach of the standard of care by Northcutt. He contends that he is not required to produce substantial evidence indicating that the result of the employment-discrimination action would have been different but for a breach of the standard of care by his attorneys in the employment-discrimination action. In other words, Dennis argues that in the instant case the "underlying action" to which cases like Independent Stave Co. refer is Dennis's legal-malpractice case against his attorneys in the employment-discrimination case, i.e., the first malpractice action, not the underlying employment-discrimination action itself. See Independent Stave Co., 678 So.2d at 772 ("`[i]n a legal malpractice case, the plaintiff must show that but for the defendant's negligence he would have recovered on the underlying cause of action'") (quoting McDuffie v. Brinkley, Ford, Chestnut & Aldridge, 576 So.2d at 199 (emphasis added)).

We do not agree with Dennis's argument. How can he satisfy his burden of showing that, but for a breach of the standard of care by Northcutt, the outcome of the first malpractice action would have been different, without also showing a breach of the standard of care by his attorneys in the employment-discrimination action, as well as showing that, but for such a breach, the outcome of the employment-discrimination action would have been different? He cannot. For Dennis to prevail in his malpractice action against Northcutt, he must show that, but for Northcutt's breach of the standard of care, he would have prevailed in the first malpractice action. And in order to show that he would have prevailed in his first malpractice action, he must show a breach by Meelheim and Ray in representing him in his employment-discrimination action and that, but for that breach, he would have prevailed in his employment-discrimination action. It is a case within a case within a case. And as the trial court noted, "[Dennis] has failed to offer any evidence to reinforce the underlying claim against either Ms. Meelheim [one of the attorneys representing Dennis in the employment-discrimination action] or Scott Paper Company [the defendant in the employment-discrimination action]."

B.

Dennis argues that Northcutt did not meet his burden of production in moving for a summary judgment. In Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999), this Court stated:

"`If the burden of proof at trial is on the nonmovant, the movant may satisfy the Rule 56 burden of production either by submitting affirmative evidence that negates an essential element in the nonmovant's claim or, assuming discovery has been completed, by demonstrating to the trial court that the nonmovant's evidence is insufficient to establish an essential element of the nonmovant's claim....'"

(Quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially) (first emphasis in original; second emphasis added).) We agree with the trial court that Northcutt made a sufficient showing that Dennis's evidence was insufficient to establish an...