Feldman v. Coggin

• Decision Date: 17 July 2019
• Docket Number: 2019-UP-261
• Parties: Robert E. Feldman and Lois J. Feldman, Appellants, v. Gary P. Coggin, Respondent. Appellate Case No. 2017-000242
• Court: South Carolina Court of Appeals

Robert E. Feldman and Lois J. Feldman, Appellants, v. Gary P. Coggin, Respondent.

Appellate Case No. 2017-000242

No. 2019-UP-261

Court of Appeals of South Carolina

July 17, 2019

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Submitted June 4, 2019

Appeal From Beaufort County Marvin H. Dukes, III, Special Circuit Court Judge.

Thomas A. Pendarvis and Christopher W. Lempesis, Jr., both of Pendarvis Law Offices, P.C., of Beaufort, for Appellants.

M Dawes Cooke, Jr. and Jeffrey Michael Bogdan, both of Barnwell Whaley Patterson & Helms, LLC, of Charleston, for Respondent.

PER CURIAM.

In this legal malpractice action, Appellants Robert E. Feldman and Lois J. Feldman (the Feldmans) challenge the circuit court's order granting summary judgment to Respondent Gary P. Coggin. We affirm.

I. Issues of Fact

The Feldmans argue summary judgment was improper because there were factual issues concerning whether Coggin's alleged negligence diminished the settlement value of their underinsured motorist (UIM) claims. We disagree.

"In an action for legal malpractice, the claimant must prove four elements: (1) the existence of an attorney-client relationship; (2) breach of a duty by the attorney; (3) damage to the client; and (4) proximate causation of the client's damages by the breach." McNair v Rainsford, 330 S.C. 332, 342, 499 S.E.2d 488, 493 (Ct App. 1998). "A plaintiff in a legal malpractice action must generally establish the standard of care by expert testimony." Id. at 342, 499 S.E.2d at 494; see also Mali v. Odom, 295 S.C. 78, 80, 367 S.E.2d 166, 168 (Ct. App. 1988) ("A plaintiff in a legal malpractice case must ordinarily establish by expert testimony the standard of care, unless the subject matter is of common knowledge to laypersons.").

"Furthermore, a claimant is required to demonstrate that 'he or she "most probably would have been successful in the underlying suit if the attorney had not committed the alleged malpractice."'" Stokes-Craven Holding Corp. v. Robinson, 416 S.C. 517, 525, 787 S.E.2d 485, 489 (2016) (emphasis added) (quoting Doe v. Howe, 367 S.C. 432, 442, 626 S.E.2d 25, 30 (Ct. App. 2005)). As to loss of settlement value, this court has held,

The client's burden of establishing proximate cause in a legal malpractice action requires that he prove that he would have obtained a better result in the underlying matter if the attorney had exercised reasonable care. The burden does not necessarily compel the client to demonstrate that he would have won the underlying case. Rather, it is enough for the legal malpractice plaintiff to show that he has lost a valuable right; e.g., the settlement value of the underlying case. Stated otherwise, "the client need not show a perfect claim. But the client must show at least that he has lost a probability of success as a result of the attorney's negligence."

Doe, 367 S.C. at 446, 626 S.E.2d at 32 (emphasis added) (quoting David A. Barry, Legal Malpractice in Massachusetts: Recent Developments, 78 Mass. L. Rev. 74, 79 (1993)).

In Hall v. Fedor, this court held that the plaintiff "could satisfy the 'most probably' requirement and defeat [the defendant's] summary judgment motion by establishing he 'most probably' would have received a larger settlement than [the settlement obtained by the defendant] or that he 'most probably' would have prevailed on the underlying claim at trial." 349 S.C. 169, 175, 561 S.E.2d 654, 657 (Ct. App. 2002) (emphasis added). However, the court held that the plaintiff failed to meet this standard: "[C]onsidering the absence of any admissible evidence presented by [the plaintiff], and in light of the evidence presented by [the defendant], [the plaintiff] failed to show he 'most probably' would have received a settlement amount greater than [the amount obtained by the defendant]." Id. at 177, 561 S.E.2d at 658.

Here, the Feldmans likewise failed to present any evidence showing that they most probably would have obtained more than $25, 000 to settle their UIM claims. First, the Feldmans presented no evidence that Coggin failed to serve Dickenson with the complaint before the statute of limitations expired or that his failure to file the affidavit of service diminished the settlement value of the case. Neither Liberty Mutual's answer nor its motion to dismiss the case included specific facts indicating how service of process was deficient, and the record does not indicate that Liberty Mutual submitted any supporting affidavits or other evidence or even amended its answer to assert the statute of limitations before the case was settled; therefore, Liberty Mutual waived this defense. See Unisun Ins. v. Hawkins, 342 S.C. 537, 542- 43, 537 S.E.2d 559, 562 (Ct. App. 2000) (holding that the defendant waived the defense of insufficiency of service of process by failing to specify any defects in the service of process and thereby also waived his statute of limitations defense).

Notwithstanding the lack of merit to Liberty Mutual's motion to dismiss, the attorney who took over representation of the Feldmans after Coggin filed his motion to be relieved, Samuel Bauer, accepted Liberty Mutual's $25, 000 settlement offer. The record indicates Bauer's recommendation to accept this offer was based on the mistaken assumption that Liberty Mutual's motion to dismiss had merit. In the expert affidavit attached to the Feldmans' malpractice complaint, Bauer stated that Coggin's failure to timely serve Dickenson precluded the Feldmans' recovery of a judgment against Dickenson.

As to the Feldmans' assertion that Coggin failed to adequately prepare the UIM case "for settlement, mediation[, ] and trial," Bauer did not include in his affidavit the standard of care for case preparation or otherwise address the alleged failure of Coggin to adequately prepare the UIM case. In fact, the Feldmans presented no evidence establishing the standard of care or Coggin's breach of that standard. It was not until Coggin filed his summary judgment motion alerting the Feldmans to this court's precedent in Unisun that the Feldmans even asserted the claim that Coggin failed to adequately prepare the UIM case. Moreover, it was not until after the circuit court conducted a hearing on the summary judgment motion that the Feldmans sought Coggin's consent to amend their complaint to add the new failure-to-prepare allegations. The statutory requirement for an expert affidavit to be attached to a malpractice complaint would be rendered meaningless if the Feldmans were allowed to proceed on this new theory of liability without a supporting sworn statement from an expert. See S.C. Code Ann. 15-36-100(B) (Supp. 2018) (requiring the plaintiff in a professional negligence action to "file as part of the complaint an affidavit of an expert witness [that] must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit"); § 15-36-100(F) (authorizing the dismissal of a complaint for failure to timely file the expert's affidavit); Ranucci v. Crain, 409 S.C. 493, 509, 763 S.E.2d 189, 197 (2014) ("[T]he General Assembly sought to promote tort reform by creating a more efficient process in resolving all professional negligence cases by enacting section 15-36-100.").

Additionally, the Feldmans presented no evidence to refute Coggin's testimony that Bob's golfing activities greatly compromised the value of his UIM claim and that Liberty Mutual's counsel questioned Bob about these activities during Bob's deposition. Coggin's testimony also belies the Feldmans' assertions that Bob's medicals exceeded $100, 000 and his lost wages exceeded $200, 000. During Coggin's deposition, the Feldmans' counsel attempted to elicit testimony that Bob's medical expenses exceeded $100, 000 based on one of the settlement demand letters Coggin had written; however, Coggin indicated the amounts stated in the demand letters were just estimates, and he later clarified that he was estimating the impairment value at $100, 000 and future medicals at $60, 000. The Feldmans presented no evidence to refute this testimony.

Coggin also stated that Bob would evade Coggin's questions about whether Bob had actually worked before the accident and the amount he earned. Again, the Feldmans did not present any evidence to refute this testimony. While the Feldmans point to Coggin's settlement demand letters, ^[1] these letters do not serve as evidence of the actual amounts of medicals and lost wages. Likewise, the Feldmans presented no evidence refuting Coggin's testimony that Bob was unwilling to pay the substantial expenses necessary to prepare his case for trial.

Based on the foregoing, the circuit court properly granted summary judgment to Coggin. See David v. McLeod Reg'l Med Ctr., 367 S.C. 242, 250, 626 S.E.2d 1, 5 (2006) ("[S]ummary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner."); Sims v. Amisub of S.C., Inc., 408 S.C. 202, 208, 758 S.E.2d 187, 190-91 (Ct. App. 2014) ("Once the moving party carries its initial burden, the opposing party must come forward with specific facts that show there is a genuine issue of fact remaining for trial." (quoting Sides v. Greenville Hosp. Sys., 362 S.C. 250, 255, 607 S.E.2d 362, 364 (Ct. App. 2004))); Eadie v. Krause, 381 S.C. 55, 64 n.5, 671 S.E.2d 389, 393 n.5 (Ct. App. 2008) ("[T]o survive a motion for summary judgment, the plaintiff must offer some evidence that a genuine issue of material fact exists as to each element of the claim unless that element is either uncontested or agreed...