Duncan v. Dempsey

• Decision Date: 24 April 2018
• Docket Number: No. ED 105962,ED 105962
• Citation: 547 S.W.3d 815
• Court: Missouri Court of Appeals
• Parties: Daryl DUNCAN, Appellant, v. Michael C. DEMPSEY and Baylard, Billington, Dempsey & Jensen, P.C., Respondent.

547 S.W.3d 815

Daryl DUNCAN, Appellant,

v.Michael C. DEMPSEY and Baylard, Billington, Dempsey & Jensen, P.C., Respondent.

No. ED 105962

Missouri Court of Appeals, Eastern District, Division Three.

Filed: April 24, 2018

Laurence D. Mass, 230 South Bemiston, Suite 1200, Saint Louis, MO. 63105, for appellant.

Richard Wuestling, M. Adina Johnson, Co-Counsel, 1034 S. Brentwood, Suite 2100, Saint Louis, MO. 63117, for respondent.

OPINION

Angela T. Quigless, J.

Daryl Duncan ("Duncan") appeals from the trial court’s grant of summary judgment in favor of Michael C. Dempsey and Baylard, Billington, Dempsey & Jensen, P.C. (collectively, "Dempsey") on Duncan’s claim of professional negligence for legal malpractice against Dempsey. Duncan asserts one point on appeal, arguing the trial court erred in granting summary judgment because Dempsey’s motion was supported by inadmissible hearsay, discovery was still outstanding, and genuine issues of material fact remained such that summary judgment was not proper. We affirm.

Factual and Procedural Background

We review the record in the light most favorable to the party against whom summary judgment was entered, which is Duncan. United States Bank, NA v. Watson , 388 S.W.3d 233, 234 (Mo. App. E.D. 2012).

Duncan hired Dempsey to represent him in a business transaction to redeem his financial interest in a company known as Reflective Recycling of South Carolina, LLC ("RRSC"). Following Dempsey’s advice, Duncan entered into an agreement to sell his share of the company to his former business partner ("Partner") in exchange for a promissory note. Duncan asked Dempsey to negotiate the transaction so that the promissory note would be secured by collateral from either RRSC’s commercial assets or the Partner’s personal assets. However, when Dempsey was unable to secure collateral, Duncan accepted an unsecured promissory note.

The agreement also required Partner to pay off an outstanding loan at Bank of Franklin County ("BFC"), which Partner did by securing a new loan from Carolina Alliance Bank ("CAB"). CAB would only provide the loan to Partner if Duncan agreed that his promissory note would be subordinate to the CAB loan, which Duncan agreed to do. In the subordination agreement, Duncan agreed that Partner would be excused from making payments to Duncan on the promissory note if RRSC did not meet a specified profit ratio. Subsequently, RRSC never met the specified profit ratio, and Partner never made any payments to Duncan under the promissory note. To date, Duncan has been unable to collect any amount of the promissory note, and the note is essentially "unenforceable."

Duncan filed a petition against Dempsey asserting a claim of professional negligence for legal malpractice based on Dempsey’s failure to procure collateral for the promissory note as Duncan requested. Duncan amended the petition to assert an additional claim for breach of contract, but subsequently filed a motion to voluntarily dismiss this claim without prejudice.¹

During the pendency of this litigation, Duncan was represented by a succession of five different attorneys. The first four attorneys to represent Duncan each eventually moved for, and were granted, leave to withdraw from the case. After each of the first three withdrawals, the court granted Duncan a continuance on pending matters so that Duncan would have time to obtain new counsel. During this time, Duncan also sought, and was granted, several extensions of time to respond to Dempsey’s discovery requests.

After nearly a year and a half of discovery, Dempsey moved for summary judgment arguing Duncan had not produced, and would be unable to produce, evidence supporting two essential elements of his claim for professional negligence: negligence and causation. Specifically, Dempsey argued there was no evidence Duncan would have been able to secure more favorable terms in the promissory note but for Dempsey’s negligence, and Duncan failed to produce evidence from an expert witness to establish that Dempsey was negligent or that Duncan’s damages were proximately caused by Dempsey’s negligence.

When Dempsey filed the motion for summary judgment, Duncan’s fourth attorney had just withdrawn and Duncan had not yet retained his fifth attorney, so Duncan was representing himself pro se. Before responding to the motion for summary judgment, Duncan filed a pro se motion to compel discovery, seeking to compel Dempsey to turn over portions of various documents Dempsey had redacted on grounds of attorney-client privilege. Duncan then filed a pro se response to Dempsey’s statement of uncontroverted facts. In his response, Duncan denied several of Dempsey’s facts arguing they were impermissibly supported by inadmissible hearsay evidence and citing documents that were neither part of the record nor attached to his response. Duncan also responded to several of Dempsey’s factual assertions by stating that "[a]t the very least, Duncan should be granted time to conduct additional discovery" concerning the facts asserted in the motion. Duncan did not attach copies of any discovery, exhibits, or affidavits to his response. Nor did Duncan file his own statement of facts or a legal memorandum of law opposing summary judgment.

In Dempsey’s statement of uncontroverted facts, he asserted Duncan "has failed to submit an expert witness to testify as to his allegations." Duncan did not deny this fact. Rather, Duncan responded by stating: "Duncan is still in the process of securing an expert in this matter. As the court has not yet closed discovery in this case or set an expert disclosure deadline, Duncan will disclose his expert at the appropriate time."

The trial court granted Dempsey’s motion for summary judgment, finding Duncan failed to produce evidence concerning the causation element of his claim, and that Duncan failed to elicit the expert testimony required to support his claim for legal malpractice. Duncan filed a motion to reconsider, to which he attached some of the documents referenced in but not attached to his response to the motion for summary judgment. The court denied the motion to reconsider. This appeal follows.

Point on Appeal

Duncan asserts one point on appeal, arguing the court erred in granting summary judgment in favor of Dempsey because the motion was impermissibly supported by hearsay, discovery was pending on evidence crucial to support the motion, and material facts were in dispute.

Discussion

We review de novo the entry of summary judgment. Watson , 388 S.W.3d at 234. We review the record in the light most favorable to the party against whom judgment was entered. Id. We will affirm where the pleadings, depositions, affidavits, answers to interrogatories, exhibits, and admissions establish that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id.

Where the movant is the defending party—as in this case—the movant may establish a prima facie right to summary judgment by: (1) showing facts negating any one of the elements of the non-movant’s claim; (2) demonstrating that the non-movant, after adequate time for discovery, has not been able and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of elements of the non-movant’s claim; or (3) establishing that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly plead affirmative defense. Diehl v. Fred Weber, Inc. , 309 S.W.3d 309, 317 (Mo. App. E.D. 2010). Once the movant has made a prima facie showing that there are no genuine issues of material fact and movant is entitled to judgment as a matter of law, the burden shifts to the non-moving party to "create a genuine dispute by supplementing the record with competent materials that establish a plausible, but contradictory, version of at least one of the movant’s essential facts." ITT Comm. Fin. Corp. v. Mid–Am. Marine Supply Corp. , 854 S.W.2d 371, 382 (Mo. banc 1993). In responding to a motion for summary judgment, the non-movant "may not rest upon the mere allegations or denials of the party’s pleading."

Mo. Sup. Ct. Rule 74.04(c)(2) ;² Wood & Huston Bank v. Malan , 815 S.W.2d 454, 457 (Mo. App. W.D. 1991). "Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial." Id. ; Margiotta v. Christian Hosp. Ne. Nw. , 315 S.W.3d 342, 344 (Mo. banc 2010).

A claim of professional negligence for legal malpractice requires proof of four elements: (1) the existence of an attorney-client relationship; (2) negligence by the attorney; (3) proximate causation of plaintiff’s damages; and (4) damages. SKMDV Holdings, Inc. v. Green Jacobson, P.C. , 494 S.W.3d 537, 545 (Mo. App. E.D. 2016). Failure to prove any of these four elements defeats a claim for legal malpractice. Id.

In all claims for professional negligence, in order to establish the negligence element, an expert witness who is a member of the same profession as the defendant is generally required to prove that the defendant’s conduct fell below the standard of care of the profession under the circumstances. Waters v. Meritas Health Corp. , 478 S.W.3d 448, 459 (Mo. App. W.D. 2015) ; Brennan v. St. Louis Zoological Park , 882 S.W.2d 271, 273 (Mo. App. E.D. 1994). The only time an expert witness is not required to establish professional negligence is where conduct constituting negligence is within "the common experience and knowledge of laypersons." Stalcup v. Orthotic & Prosthetic Lab, Inc. , 989 S.W.2d 654, 657 (Mo. App. E.D. 1999). Additionally, in a professional negligence claim for legal malpractice, an expert witness is required to establish that the plaintiff’s damages were the proximate cause of the attorney’s negligence "except in a clear and palpable case." SKMDV Holdings , 494 S.W.3d at 557 (citations and quotations omitted); ...