Bangs v. Schroth

• Decision Date: 19 February 2009
• Docket Number: No. S-07-0012.,S-07-0012.
• Citation: 2009 WY 20,201 P.3d 442
• Parties: Brenda BANGS, Appellant (Plaintiff), v. Robert E. SCHROTH, Appellee (Defendant).
• Court: Wyoming Supreme Court

201 P.3d 442

2009 WY 20

Brenda BANGS, Appellant (Plaintiff), v. Robert E. SCHROTH, Appellee (Defendant).

No. S-07-0012.

Supreme Court of Wyoming.

February 19, 2009.

Representing Appellant: William R. Fix and Jenna V. Mandraccia of William R. Fix, P.C., Jackson, Wyoming. Argument by Ms. Mandraccia.

Representing Appellee: Robert M. Shively and Amy M. Taheri of Shively, Taheri & Rochelle, P.C., Casper, Wyoming. Argument by Ms. Taheri.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

GOLDEN, Justice.

[¶ 1] Brenda Bangs, who claims that attorney Robert E. Schroth, Sr., undertook and then mishandled her legal representation by failing to timely commence medical malpractice litigation against two doctors, appeals the district court's grant of summary judgment to Mr. Schroth in her legal malpractice action against him. Because Mr. Schroth has not established a prima facie case entitling him to summary judgment on Ms. Bangs' claims of negligence, breach of fiduciary duty, breach of contract, negligent misrepresentation, fraud, and punitive damages, we reverse the district court's summary judgment on those claims. We dismiss, however, Ms. Bangs' claim of deceit under Wyo. Stat. Ann. § 33-5-114 because it is not legally cognizable under the undisputed facts of the case. W.R.C.P. 12(b)(6).

ISSUES

[¶ 2] In regard to the district court's summary judgment on all claims except deceit under Wyo. Stat. Ann. § 33-5-114, the dispositive issue is whether Mr. Schroth properly supported his motion for summary judgment as required by W.R.C.P. 56 and our decisions in Rino v. Mead, 2002 WY 144, 55 P.3d 13 (Wyo.2002); Havens v. Hoffman, 902 P.2d 219 (Wyo.1995); Roybal v. Bell, 778 P.2d 108 (Wyo.1989); and Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo.1987).

[¶ 3] In regard to the district court's grant of summary judgment to Mr. Schroth on Ms. Bangs' claim of deceit under Wyo. Stat. Ann. § 33-5-114, the dispositive issue is whether, as a matter of statutory interpretation, that statutory provision applies under the facts of this case.

FACTS

[¶ 4] In the parties' appellate briefs here and their legal memoranda submitted to the district court in connection with the summary judgment proceedings there, they provide the following background information which is helpful to place the issues before us in appropriate context.

[¶ 5] On or about May 22, 2000, Ms. Bangs employed Dr. Robert Bricca in Jackson, Wyoming, for medical services in connection with her pregnancy which was then at approximately twelve to fourteen weeks. While in Dr. Bricca's care, Ms. Bangs experienced complications and was diagnosed with fulminant ulcerative colitis.¹ This medical condition required Ms. Bangs' transfer from Dr. Bricca's care to the LDS Hospital in Salt Lake City, Utah, and the medical care of Dr. Peter Bossart. Because of her medical condition and the ensuing apparent distress of her unborn infant, Ms. Bangs underwent an emergency cesarean section delivery of her twenty-six-week preterm infant before a total colectomy on August 18, 2000. In addition, Ms. Bangs underwent numerous subsequent surgical procedures resulting from her toxic megacolon secondary to chronic ulcerative colitis.

[¶ 6] Following Ms. Bangs' medical treatment, she contacted Mr. Schroth for legal representation in medical malpractice litigation against Dr. Bricca and Dr. Bossart. Mr. Schroth drafted the complaints against the doctors. Mr. Schroth never filed the complaint against Dr. Bossart, and the statute of limitations ran on that claim. On September 26, 2003, the district court dismissed the claim against Dr. Bricca, which had been filed, because he had not been timely served with the complaint before the statute of limitations ran on that claim.

[¶ 7] On February 7, 2005, Ms. Bangs filed suit against Mr. Schroth, alleging claims of negligence (Count I), breach of fiduciary duty (Count II), breach of contract (Count III), negligent misrepresentation (Count IV), fraud (Count V), deceit under Wyo. Stat. Ann. § 33-5-114 (County VI), and punitive damages (Count VII). In pertinent part in her complaint, she alleged that in December 2000, she contacted Mr. Schroth to represent her in a medical malpractice case for injuries and medical problems arising out of her pregnancy and the subsequent birth of her child; Mr. Schroth agreed to competently and zealously perform his duties as her legal counsel; an attorney-client relationship existed between Ms. Bangs and Mr. Schroth; and Mr. Schroth told her that his team in San Diego would undertake to review and prosecute her claims against all responsible parties and Mr. Schroth assured her that she had a viable case.

[¶ 8] On April 27, 2005, Mr. Schroth filed his answer to Ms. Bangs' complaint, generally denying her claims and liability. On November 9, 2005, District Court Judge Nancy J. Guthrie assigned the case to District Court Judge Dennis L. Sanderson, who held a scheduling conference on December 6, 2005, and filed the scheduling order on December 16, 2005. In that scheduling order, the trial judge ordered, among other matters, Ms. Bangs' designation of expert witnesses to be made by March 15, 2006; Mr. Schroth's designation of expert witnesses to be made by May 1, 2006; discovery cut-off to be on October 23, 2006; dispositive motions to be filed on or before September 15, 2006; pre-trial conference to be held on October 23, 2006; and jury trial to commence on November 13, 2006.

[¶ 9] On December 27, 2005, eleven days after the filing of the district court's scheduling order, Mr. Schroth filed his motion for summary judgment. In support of his motion, he relied on his own affidavit, the affidavits of Dr. Bricca and Dr. Bossart, and a legal memorandum. On December 30, 2005, the district court filed its order setting Mr. Schroth's motion for summary judgment for hearing on February 3, 2006. On January 10, 2006, Ms. Bangs filed several motions, seeking, among other matters, enlargement of time to respond to Mr. Schroth's motion; vacation of the motion hearing on February 3, 2006; supplementation of the record with depositions and affidavits as discovery progressed; and striking of the affidavits of Dr. Bricca and Dr. Bossart because they were self-serving and conclusory. On January 12, 2006, the district court held a hearing on Ms. Bangs' several motions; and on January 13, 2006, the district court filed its order denying those motions.

[¶ 10] On January 17, 2006, Ms. Bangs filed a legal memorandum in opposition to Mr. Schroth's motion for summary judgment. In support of her opposition to that motion, she attached to her legal memorandum the affidavit of Henry F. Bailey, Jr., an attorney; Ms. Bangs' deposition taken in her failed litigation against Dr. Bricca; Ms. Bangs' affidavit; and District Court Judge Nancy J. Guthrie's order dated September 26, 2003, dismissing Ms. Bangs' litigation against Dr. Bricca. On January 30, 2006, Mr. Schroth filed his reply to Ms. Bangs' opposition to his motion for summary judgment. On February 1, 2006, Ms. Bangs filed Mr. Schroth's deposition which she had taken on January 12, 2006. On February 3, 2006, the district court judge held the hearing on Mr. Schroth's motion for summary judgment.

[¶ 11] On May 15, 2006, the district court judge filed the order granting Mr. Schroth's motion for summary judgment on Ms. Bangs' claims for negligence (Count I), breach of fiduciary duty (Count II), breach of contract (Count III), fraud (Count V), and punitive damages (Count VII). In regards to Ms. Bangs' claims of negligent misrepresentation (Count IV) and deceit under Wyo. Stat. Ann. § 33-5-114 (Count VI), the district court judge desired "further briefing and consideration of the causal requirements and the quantity of injury, if any," informing the parties that they may submit additional motions and briefs.² In the district court's order granting summary judgment on these five claims, the district court judge explained his ruling as follows:

Following a review of the pleadings, briefs and supporting materials, and having heard the argument of counsel, the court FINDS:

1. The elements in a legal malpractice case are: (1) the accepted standard of [legal] care or practice, (2) that the [lawyer's] conduct departed from the standard, and (3) that [the lawyer's] conduct was the legal cause of the injuries suffered. Moore v. Lubnau, [855] P.2d 1245 (Wyo.1993)[.]

2. A fact is material if it establishes or refutes an essential element of a claim or defense. Tidwell v. HOM, Inc. 896 P.2d 1322, 1324 (Wyo.1995)[.]

3. Defendant has definitively made a showing of undisputed, uncontroverted material fact with respect to element number (3) by refuting ... "that [the lawyer's] conduct was the legal cause of the injuries suffered." Defendant has produced affidavits negating the viability of the underlying medical malpractice action. Even viewing all of the evidence in the light most favorable to the plaintiff, no material facts which establish the essential element of causation appear in the record before this Court.

4. Plaintiff attached no affidavits of physicians attesting to medical negligence in the underlying medical malpractice case, as required to rebut the Affidavits of Drs. Bricca and Bossart. Plaintiff has not provided the Court with affidavits or other competent evidence which would give rise to a genuine issue of material fact with regard to this element.

5. The mere fact of injury or the occurrence of a bad result, standing alone, is no proof of negligence in the ordinary malpractice action. Harris v. Grizzle, 625 P.2d 747 (Wyo.1981)[.]

6. It has long been established in Wyoming that a medical malpractice claim in almost all cases, and certainly in a case such as the plaintiff's concerning obstetrical care, a qualified medical expert is essential to establishing a viable claim of medical malpractice. Harris v. Grizzle, Supra.

7. There is no genuine issue of material fact on the subject of...