Collins v. Greenstein, 6052

• Decision Date: 14 May 1979
• Docket Number: No. 6052,6052
• Citation: 61 Haw. 26,595 P.2d 275
• Parties: Violet COLLINS, Plaintiff-Appellant, v. Hyman M. GREENSTEIN, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 275

595 P.2d 275

61 Haw. 26

Violet COLLINS, Plaintiff-Appellant, v. Hyman M. GREENSTEIN, Defendant-Appellee.

No. 6052.

Supreme Court of Hawai'i.

May 14, 1979.

Syllabus by the Court

1. The applicable standard on a motion for directed verdict is that the evidence and the inferences which may be fairly drawn from the evidence must be considered 2. Where there is no conflict from the evidence and but one inference can be drawn from the facts, it is the duty of the court to pass upon the question of negligence and proximate cause as questions of law.

in the light most favorable to the party against whom the motion is directed and if the evidence and inferences viewed in that manner are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions on a crucial issue, then the motion should be denied and the issue should be submitted to the jury.

3. In some situations proof of negligence may be sufficiently clear without the aid of experts.

4. In a case where expert testimony is not required, it is for the trial court to determine the reasonable standard of care, skill, and diligence which must be exercised by an attorney.

5. The application of the standard of care to specific fact situations and the issue of whether or not the attorney has breached the duty of care owed is a question for the jury.

6. As in ordinary negligence actions, the burden of proving proximate cause by the preponderance of the evidence is on the client who alleges negligence on the part of the attorney. The plaintiff need not, however, prove that the defendant's negligence was the sole proximate cause of injury.

7. In cases where reasonable persons might differ on the issue, the question of proximate cause is one for the jury. Where reasonable persons would not dispute the absence of causality, however, the court may take the decision from the jury and treat it as a question of law.

8. In situations involving more than one probable cause of a plaintiff's injury and where there is conflicting evidence on this issue, the question of proximate cause remains a jury question.

9. The test to determine whether an intervening negligent act is a superseding cause is one of Foreseeability of the third person's conduct.

Donald S. Kagawa, Lihue, Kauai, for plaintiff-appellant.

John S. Edmunds, Honolulu, for defendant-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and KOBAYASHI, Retired Justice, assigned by reason of vacancy. ^*

KOBAYASHI, Retired Justice.

Plaintiff-appellant, Violet Collins (appellant), initiated a suit in the circuit court of the fifth circuit, Civil No. 1319, alleging professional negligence on the part of defendant-appellee, Hyman M. Greenstein, attorney at law (appellee). This appeal is taken by appellant from an order granting appellee's motion for a directed verdict, and from an order denying appellant's motion for an order granting relief from judgment and for a new trial. Reversed and remanded.

ISSUE

Whether the trial court erred in granting appellee's motion for a directed verdict on the issue of proximate cause.

STATEMENT OF THE CASE

Appellant initially filed her complaint on January 18, 1973, alleging that appellee had negligently failed to institute a suit on her behalf against Hawaiian Merchandising Associates, Ltd. (HMA), and First Hawaiian Bank (Bank), and alleging injury resulting from the fact that her claim for relief against HMA and the Bank had been barred by the statute of limitations. On The amended complaint set forth in detail appellant's allegations of acts of negligence, malpractice, and breach of contract on the part of appellee. Appellant sought $50,000 in general damages, such special damages as may be proven at trial, including reasonable expectations of recovery in potential lawsuits, $25,000 in punitive damages, and the cost of litigation and reasonable attorney's fees.

February 13, 1973, appellant amended her complaint, alleging, Inter alia, that in addition to failing to institute an action against HMA and the Bank, appellee negligently failed to set forth affirmative defenses and failed to answer a request for admissions concerning a collection suit filed against her by the Bank in First Hawaiian Bank v. Collins, Civil No. 915, circuit court, fifth circuit.

Appellant moved to disqualify Judge Alfred Laureta from presiding over the case on the grounds that appellant wished to call Judge Laureta as a material witness regarding the proceedings in Civil No. 915. Specifically, appellant desired to elicit testimony from the judge regarding his denial of appellant's motion to amend her pleadings, and his subsequent denials of her efforts to introduce evidence regarding possible fraud on the part of the Bank or its employees. Judge Laureta denied the motion to disqualify.

At trial, before a jury, appellant attempted to introduce the entire record of Civil No. 915 into evidence, stating that the record was necessary to show appellant's emotional distress each time the court ruled against her regarding the fraud defense she was not allowed to plead. The court refused to admit the entire transcript. However, a portion of the transcript was read into evidence.

At the close of all the evidence, appellee moved for a directed verdict and filed a memorandum in support thereof. The court granted the motion and stated as follows:

(T)he Court finds that there is evidence or questions of fact sufficient to deny the motion on the issues of (1) misrepresentation, undue influence, breach of contract, failure of consideration, and other defenses which defendant urges should have been pleaded as affirmative defenses or even as counterclaims in Civil 915, and (2) the standard of care which Mr. Greenstein should have followed as a competent attorney in preparing the answer to the complaint.

Let us assume, however, that Mr. Greenstein continued to remain as her attorney up to the time judgment was entered against Mrs. Collins in Civil 915. Based upon the state of the evidence, recited earlier, defendant's motion would be denied because there would have been enough evidence to go to the jury.

Suppose Mrs. Collins was unable to obtain new counsel and judgment was entered against her. Would Mr. Greenstein still be liable, that is, is there enough evidence to show, though controverted, that his failure was the proximate cause of the damages she suffered? Perhaps.

But now let us consider additional evidence in this case, and in the light most favorable to her.

1. On February 5th 1971, Mr. Greenstein withdrew as her attorney. She approved the withdrawal and had to beg Mr. Greenstein for a refund of the $250.00 retainer she had paid him. Whether Mrs. Collins approved the withdrawal voluntarily, or with reservations, or without knowledge if she had to approve or not, or was coerced, no one can deny that at the moment she received a refund of the $250.00 and her files, she knew that Mr. Greenstein no longer represented her as an attorney. The contractual obligations between them was (Sic ) cancelled and terminated in the same manner she allegedly cancelled all contractual agreements between herself and the bank and Carter and Croft and Desha.

2. She did not know that Civil 915 was pending against her in the Fifth Circuit Court until she received a letter from the bank's attorney, Mr. Henderson. She then contacted three attorneys and was 3. On that same date, the case was set for trial to commence on August 19, 1971, without objection.

successful in obtaining the services of Mr. Ross, who made his first appearance as attorney of record on July 23rd, 1971.

4. On the day of trial, Mr. Ross moved to amend the answer filed by Mr. Greenstein to include affirmative defenses, which motion was denied by the Court, and after trial, judgment was entered against Mrs. Collins.

I think no one will question that the burden of proving proximate cause rests with the plaintiff. Upon invitation of Mr. Kagawa to refer to his proposed jury instructions, I have selected two which I believe are appropriate and I quote:

Plaintiff's Proposed Instruction No. 74 The proximate cause of an injury is that cause which in direct, unbroken sequence, produces the injury, and without which the injury would not have occurred.

To these proposed instructions I would add that to prove proximate cause, proof of mere possibility of causation is not sufficient; the circumstances adduced must render reasonably probable the existence of such fact. The evidence must not leave the causal connection a matter of conjecture.

Now as of the time Mr. Ross entered upon the scene as counsel for Mrs. Collins, was he, too, bound by any standard of professional care which, if properly exercised, would have prevented the outcome in Civil 915?

What is this standard of professional care for an attorney who assumes legal representation after withdrawal of a preceding attorney within the circumstances of this case? On this subject, the Court believes that Nishi v. Hartwell, 52 Hawaii 188 (473 P.2d 116) (1970), is applicable, and failure of plaintiff to carry its burden in proving the applicable standard by expert testimony forces the question of proximate cause into the arena of conjecture and speculation, if it were to be submitted to the jury for determination.

Based upon the state of the evidence on the issue of proximate cause, the Court finds that as a matter of law, plaintiff has failed to meet the standard spelled out in its own proposed instruction that the defendant was the cause which in direct, unbroken sequence, produces the injury and without which the injury would not have occurred.

Accordingly, the motion for directed verdict is hereby granted.

Appellant moved for an order granting relief from judgment and granting a new trial. After a hearing, the court filed its order denying appellant's motion.

STATEMENT OF FACTS

On July 23, 1966, appellant entered into a conditional...