Jensen v. Hillsboro Law Grp., PC

• Decision Date: 13 September 2017
• Docket Number: A158221.
• Citation: 287 Or.App. 697,403 P.3d 455
• Parties: Jens JENSEN, Plaintiff- Appellant, v. HILLSBORO LAW GROUP, PC; and John Andon, Defendants-Respondents.
• Court: Oregon Court of Appeals

287 Or.App. 697
403 P.3d 455

Jens JENSEN, Plaintiff- Appellant,
v.
HILLSBORO LAW GROUP, PC; and John Andon, Defendants-Respondents.

A158221.

Court of Appeals of Oregon.

Argued and submitted March 3, 2016.
September 13, 2017

George W. Kelly, Eugene, argued the cause and filed the brief for appellant.

Kathryn Mary Pratt argued the cause and filed the briefs for respondents.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

ORTEGA, P. J.

287 Or.App. 699

Plaintiff Jens Jensen filed a complaint against defendants John Andon and the Hillsboro Law Group that included claims for negligence and breach of contract arising out of their representation of plaintiff in a legal matter.¹ Defendant moved for summary judgment on both claims and prevailed. We conclude that material issues of fact exist as to the limited issues that were fairly raised by defendant's motion, and consequently reverse and remand.

We recount the facts from the summary judgment record, "viewing the facts and all reasonable inferences that may be drawn from them in the light most favorable to plaintiff, as the nonmoving party." Lahn v. Vaisbort , 276 Or.App. 468, 470, 369 P.3d 85 (2016) (internal quotation marks omitted). Plaintiff is the president of Durst-Pro-USA (DPU). DPU had an agreement for legal services with Bullivant Houser Bailey (Bullivant), which ultimately devolved into an attorney-fee dispute. In its effort to resolve that dispute, Bullivant sent a letter addressed to DPU and plaintiff requesting arbitration before the Oregon State Bar (OSB). Plaintiff, in response, sought legal advice from defendant, both personally and in plaintiff's capacity as a representative of DPU. When plaintiff met with defendant, he told defendant that his goal was to be separated from the demand for arbitration, as he did not believe he should be part of Bullivant's fee dispute with DPU.² Defendant advised

403 P.3d 457

plaintiff that, to extricate himself from arbitration, all he had to do was to decline his consent to arbitration and inform OSB and Bullivant that he was not a party to the claim. Plaintiff, it appears, did just that. As to DPU, defendant advised that it should consent to arbitration. DPU did so and was represented by defendant at the arbitration hearing.

287 Or.App. 700

In an email confirming representation, defendant wrote that he was "willing to represent Jens Jensen/Durst Pro USA in the fee dispute matter with [Bullivant]," and the written fee agreements listed "Jens Jensen" as the client. The record also contains bills directed to Jens Jensen for "Jensen-Civil Matter."

Plaintiff appeared as a witness for DPU at the arbitration, with the understanding that he was not a party to the proceedings. Nevertheless, following the hearing, the arbitration panel issued a joint award against DPU and plaintiff.³ Realizing that the award held him personally liable, plaintiff asked defendant to correct what he believed to be an error. Defendant refused, indicating that he represented only DPU, not plaintiff. Plaintiff then hired a different attorney to assist him in vacating the award against him, though it appears that those efforts ultimately were unsuccessful.

Plaintiff, acting pro se, then filed a complaint against defendant for negligence (legal malpractice) and breach of contract.⁴ As to his negligence claim, plaintiff alleged that defendant had "acted unprofessionally, incompetently and negligently" and listed specific ways in which defendant had failed to represent him at the arbitration and in his communications with OSB. That is, plaintiff listed things that, in his view, defendant should have done to help him but did not, such as informing plaintiff that he would be appearing pro seat the arbitration hearing and alerting the arbitration panel that plaintiff was making a special appearance at the hearing. Further, plaintiff alleged:

"After having been made aware of having been falsely convicted plaintiff * * * requested that defendant attempt to remedy what happened to plaintiff to be an error. [Defendant] refused.

287 Or.App. 701

"Defendants refused to act or take action on behalf of plaintiff.

"After first agreeing to represent plaintiff and subsequently agreeing to represent DPU defendants did not discuss with plaintiff any potential conflicts that could arise by representing DPU and plaintiff simultaneously.

"Defendants issued all billing and all invoices for all work performed for both DPU and plaintiff to plaintiff.

"[Defendant] failed [p]laintiff when he assured [p]laintiff that no other actions than not signing the Agreement to Arbitrate and informing [t]he Oregon State Bar, and [Bullivant], that [p]laintiff was not a party to the claim, was sufficient actions to sever [p]laintiff from the claim.

"[Defendant] did not inform the arbitrations panel that [p]laintiff was not part[y] to the agreement between DPU and [Bullivant].

"Defendants did not share any research, relevant statutes or case law with plaintiff prior to the hearing.

"Defendants failed to demonstrate the skill and care that a reasonable person can expect from an Oregon [a]ttorney under similar circumstances.

"As a result of [defendant's] negligence [defendant] was unable to present the facts and the evidence and relevant law in an effective manner which the Arbitrations Panel could comprehend."

403 P.3d 458

(Paragraph numbering omitted.) Plaintiff's breach of contract claim relied on those same allegations.

In support of his complaint, plaintiff attached a copy of the fee agreement between himself and defendant, email correspondence in which defendant agreed to represent "Jens Jensen/Durst Pro USA," and a copy of the arbitration award holding plaintiff liable. He also attached a letter written by defendant in which defendant stated, in part: "Prior to the arbitration hearing * * *, I did not inform [plaintiff] that he was attending the hearing pro se[,]" and "Prior to the arbitration hearing * * *, I also did not discuss with [plaintiff] that I had informed the arbitration panel and the opposing attorney * * * that I would be representing solely [DPU] for the arbitration hearing."

287 Or.App. 702

Defendant moved for summary judgment on both of plaintiff's claims, asserting three bases for the motion.⁵ In asserting his first basis for summary judgment, defendant noted that "[a]n essential element of all legal malpractice claims is that plaintiff must plead and [prove] a breach of duty that runs from the defendant to the plaintiff." He then asserted that he had not breached his duty of care to plaintiff when he "correctly advised [p]laintiff that by not signing and returning the arbitration agreement to the Oregon State Bar Fee Arbitration Program * * * [p]laintiff would not be a party to the arbitration initiation by [Bullivant]." In other words, defendant did not dispute that he and plaintiff had an attorney-client relationship or that he owed, at least initially, a duty of care to plaintiff. Rather, defendant's argument focused on establishing that the legal advice he provided to plaintiff pre-arbitration had been accurate, pointing to case law and OSB rules. Defendant did not present expert testimony or affidavits, nor did he assert that plaintiff had the burden of presenting expert testimony to establish an issue of material fact on that issue.

As his second basis for summary judgment, defendant asserted that he did not owe plaintiff any duty of care during the arbitration proceedings because he and plaintiff did not have an attorney-client relationship at that time.⁶ According to defendant, plaintiff had no expectation that he was defendant's client at that time, and any "duty owed in preparation and conduct of the arbitration was owed to [DPU] and not [p]laintiff."

Finally, as his third basis for summary judgment, defendant argued that plaintiff could not prove the total amount of economic damages alleged in the complaint. According to defendant, "[b]ecause [p]laintiff's alleged damages cannot be objectively verified they do not satisfy the definition of 'economic damages,' " such that defendant was "entitled to judgment as a matter of law on these alleged

287 Or.App. 703

damages as not compensable." However, in his reply, defendant acknowledged that plaintiff could verify some of his economic losses, but that they did not exceed the mandatory $50,000 "arbitration cap."

Plaintiff opposed defendant's motion for summary judgment, asserting that defendant had failed to demonstrate that there were no genuine issues of fact, and the trial court held a hearing on the motion. At the hearing, defendant summarized his...