Jarman v. Hale

• Decision Date: 22 May 1986
• Docket Number: No. 15823,15823
• Citation: 731 P.2d 813,112 Idaho 270
• Parties: Ronald J. JARMAN, Plaintiff-Respondent, v. Thomas F. HALE and Margaret S. Hale, husband and wife, Defendants-Appellants. Thomas F. HALE and Margaret S. Hale, husband and wife, Plaintiffs, v. Mary Ellen WALSH and Robert Edington, Defendants.
• Court: Idaho Court of Appeals

Page 813

731 P.2d 813

112 Idaho 270

Ronald J. JARMAN, Plaintiff-Respondent, v. Thomas F. HALE and Margaret S. Hale, husband and wife, Defendants-Appellants.

Thomas F. HALE and Margaret S. Hale, husband and wife, Plaintiffs, v. Mary Ellen WALSH and Robert Edington, Defendants.

No. 15823.

Court of Appeals of Idaho.

May 22, 1986.

Thomas F. Hale, pro se, defendant-appellant.

Kenneth E. Lyon, Jr., Pocatello, for plaintiff-respondent.

SWANSTROM, Judge.

Attorney Ronald Jarman represented Thomas and Margaret Hale in a 42 U.S.C. § 1983 action against certain persons and Idaho State University (ISU) for alleged wrongful termination of Thomas Hale's teaching contract. The § 1983 action resulted in a $100,000 verdict and judgment in favor of the Hales. Two defendants appealed and the Hales cross-appealed. The Hales replaced Jarman with other counsel on that appeal.

Jarman then filed a complaint in the same action against the Hales for attorney fees allegedly due and for an attorney's charging lien against the judgment obtained by the Hales. The Hales counterclaimed, alleging Jarman negligently represented them and intentionally inflicted emotional distress on them. Jarman moved to strike the emotional distress counterclaim and that claim was dismissed. Partial summary judgment was entered granting an attorney's lien to Jarman, in an amount to be determined after disposition on appeal of the ISU suit. ¹ The partial summary judgment also dismissed the Hales' counterclaim against Jarman for malpractice. The Hales then filed this appeal. For reasons stated below, we vacate the partial summary judgment.

The Hales raise numerous issues in this appeal. Those we deem necessary to discuss relate to whether the district court: (1) had jurisdiction to decide the summary judgment motion, (2) erred in dismissing the legal malpractice counterclaim and (3) erred in granting an attorney's lien.

The Hales first assert that the district court did not have jurisdiction because the motion for partial summary judgment was not served in a timely manner. The motion was filed and a copy thereof mailed to the Hales on July 6, 1984, with a copy of a notice for a hearing on July 16. During the time pertinent hereto, Rule 56(c), I.R.C.P., provided that a motion shall be served at least ten days before the time fixed for the hearing. ² In addition, I.R.C.P. 6(e)(1) states that a party who is served by mail shall be provided an extra three days to respond. Therefore, the motion and notice of hearing did not allow the minimum time set by the rules for the responsive affidavits which were required by Rule 56(c).

Jarman relied upon the affidavits of two attorneys to support his motion for summary judgment. In each affidavit the attorney gave his opinion that none of the acts or omissions alleged in the Hales' counterclaim against Jarman constituted negligence. The first of these affidavits was served by mail on the Hales on July 10. The second was served by mail on July 13. Ordinarily, "[w]hen a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in rule 59(c) [not applicable here], opposing affidavits may be served not later than one (1) day before the hearing, unless the court permits them to be served at some other time." I.R.C.P. 6(d). Construing together Rules 6(d), 6(e)(1) and 56(c) (as it then existed), we think it is clear that the Hales were entitled to at least thirteen days to respond to Jarman's affidavits.

On July 16 when the motion for partial summary judgment was scheduled to be heard, the Hales were given an additional week to submit authorities and affidavits in opposition to the motion. The Hales failed to submit affidavits, but did file additional motions, including a motion for extension of time. These motions were argued August 6 and the court gave the Hales until August 8 to submit additional support. In its decision dated August 9, the district court noted it had granted the Hales an additional week because there was a question as to the timeliness of the hearing due to the mailing of the notice. The court concluded that the additional time granted was sufficient for the Hales to supply affidavits and materials to resist the motion.

The Hales argue that Jarman's mere failure to give the minimum notice required under the rules deprives the court of jurisdiction to take any action on the motion. They assert that the court should not have aided Jarman by "correcting" the time deficiency, but should have required Jarman to start "anew" with his notice of a hearing. No persuasive authority in support of this jurisdictional argument has been cited. In fact, it has been held that if no prejudice results from the failure to provide the required notice then proceeding with the summary judgment motion may be proper. See, e.g., Kelsey v. State of Minnesota, 565 F.2d 503 (8th Cir.1977) (failure to give minimum notice of summary judgment hearing held to be harmless error where no prejudice resulted). We hold that the court did have jurisdiction to decide the motion for summary judgment.

The Hales make an alternative argument that the district court abused its discretion in refusing to give them additional time to obtain and file opposing affidavits as required by Rule 56(e). Their arguments are persuasive that more than the minimum time was needed to respond, given their circumstances. The prejudice resulting to them from the failure to file responsive affidavits is apparent. However, we need not address this argument since we hold that entry of summary judgment was improper because of the existence of genuine issues of material fact.

The Hales contend it was error for the district court to dismiss by summary judgment their counterclaim against Jarman for negligence in handling the § 1983 action against ISU. Summary judgment is appropriate only when there are no genuine issues of material fact and the case may be decided as a matter of law. I.R.C.P. 56(c); Moss v. Mid-American Fire & Marine Insurance Co., 103 Idaho 298, 647 P.2d 754 (1982). The Hales are entitled to the benefit of all favorable inferences reasonably drawn from the evidentiary facts. Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982). Here the record discloses genuine issues of fact with respect to negligence, causation and damages. Consequently, as we shall explain, the partial summary judgment must be vacated.

Jarman filed two affidavits from Idaho attorneys, Keith Zollinger and Boyd White. Each stated that in his professional opinion Jarman did not commit legal malpractice. Zollinger's opinion was based upon his view of Idaho's standards of practice and his examination of the ISU case file and of the Hales' malpractice claim. White was one of the opposing counsel in the ISU suit and his opinion was grounded upon personal knowledge of the litigation.

Generally, a party defending a motion for summary judgment may not rest on his pleadings, but must offer affidavits or other evidentiary materials which demonstrate that an issue of fact remains. Theriault v. A.H. Robins Co., Inc., 108 Idaho 303, 698 P.2d 365 (1985). However, the filing of a counteraffidavit is not required merely because the motion is supported by affidavits. Vincen v. Lazarus, 93 Idaho 145, 456 P.2d 789 (1969). If the record already discloses a genuine issue of material fact it would be "a useless procedure" to require additional affidavits restating the same facts. Vincen v. Lazarus, 93 Idaho at 149, 456 P.2d at 793.

It has been said that "[t]wo factors are imperative in legal malpractice based upon negligence, (1) that the trial attorney was negligent in the preparation, investigation, or trial of a case; and (2) his negligence was the proximate cause of the injury." Sanders v. Smith, 83 N.M. 706, 496 P.2d 1102, 1105 (Ct.App.1972), cert. denied, 83 N.M. 698, 496 P.2d 1094 (1972). See Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269 (1964). "A lay witness does not have the experience, knowledge and wisdom to opinionate on the complexities of trial practice, including the verdict that a jury will render." Sanders v. Smith, 496 P.2d at 1105. As a general rule, for plaintiff to establish a prima facie case of legal malpractice at trial, he must produce expert evidence showing negligence and causation. See Annot. 14 A.L.R.4th 170 (1982). Even at the stage of resisting a defendant's motion for summary judgment, a plaintiff may be required to show--by an expert's affidavit--that there exists a genuine issue of material fact as to the attorney's alleged negligence. Sanders v. Smith, supra; Hughes v. Malone, 146 Ga.App. 341, 247 S.E.2d 107 (1978); Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban & Fuller, 75 Ill.App.3d 516, 31 Ill.Dec. 357, 394 N.E.2d 559 (1979).

However, the general rule requiring the client to support his allegations of negligence with expert testimony has its exceptions even at trial. For example, where the attorney's alleged breach of duty of care is so obvious that it is within the ordinary knowledge and experience of laymen, expert testimony has not been required. See Annot. 14 A.L.R.4th 170-203 (1982); Walker v. Bangs, 92 Wash.2d 854, 601 P.2d 1279 (1979). Also, where the alleged negligence consists of the failure of an attorney to follow with reasonable promptness and care the explicit instructions of his client, expert testimony may not be necessary. Those cases are cast in the law of agency even though the agent-principal relationship is but a reflection of the attorney-client relationship. A jury is competent to understand and apply the standards of care to which agents are held. Olfe v. Gordon, 93 Wis.2d 173, 286 N.W.2d 573 (1980).

In their counterclaim, the Hales asserted twelve alleged negligent acts and omissions committed by Jarman. Thomas Hale verified these allegations as true to the best of his knowledge in a subsequent affidavit. He added some detail to his allegation in another...