Brown v. Kelly, No. 283-80

• Docket Nº: No. 283-80
• Citation: 437 A.2d 1103, 140 Vt. 336
• Case Date: November 03, 1981

Page 1103

437 A.2d 1103 140 Vt. 336 Robert BROWN
v.
Richard G. KELLY, Trustee of the Trust Estate of Gelsie G. Monti. No. 283-80. Supreme Court of Vermont. Nov. 3, 1981.

Page 1104

[140 Vt. 337] John A. Burgess of Garry, Dreyfus, McTernan, Brotsky, Stender, Herndon & Walsh, Inc., San Francisco, Cal., for plaintiff.

Deane C. Davis, Montpelier, and Edwin W. Free, Jr., Barre, for defendant.

Before [140 Vt. 336] BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

[140 Vt. 337] PECK, Justice.

This appeal had its genesis in April, 1958, when plaintiff Brown brought suit seeking an accounting and damages from his finance broker, Emanuele Pilini. Plaintiff was represented in that suit by Gelsie Monti, Esquire. Plaintiff prevailed in his suit against Pilini and secured a judgment for $32,620.26. We upheld that judgment in Brown v. Pilini, 128 Vt. 324, 262 A.2d 479 (1970).

On December 22, 1971, plaintiff, having failed to satisfy his judgment against Pilini, brought suit against defendant Monti, who has been replaced as a party by his personal representative. V.R.A.P. 43. The amended complaint alleged that Monti, while acting as plaintiff's attorney, negligently failed to seek a writ of sequestration for the attachment of Pilini's assets. The case was tried by the Washington Superior Court without a jury.

[140 Vt. 338] The trial court concluded that the defendant had indeed been negligent in failing to search for and attach Pilini's net assets. Plaintiff was not awarded damages, however, because the court found that defendant's negligence was not the "actual" cause of plaintiff's loss. A small recovery was awarded plaintiff for a related contractual dispute, but this is not challenged by defendant.

On appeal, plaintiff claims that the trial court erred in denying him damages for the defendant's negligence. We disagree.

An action for damages from the negligence of an attorney is similar to more commonplace negligence actions. See Houghton v. Leinwohl, 135 Vt. 380, 376 A.2d 733 (1977). An attorney who fails to perform his duties for his client in accordance with established standards of legal skill and care is negligent. Sohn v. Bernstein, 279 A.2d 529, 532 (Me.1971); Restatement (Second) of Torts § 299 A (1965). In the instant case it is undisputed that defendant was negligent in his representation of plaintiff. This is expressed in the trial court's conclusion that:

Defendant (Monti) failed to exercise the ordinary and reasonable care...