Martin v. Burns

• Decision Date: 06 July 1967
• Docket Number: No. 8351,8351
• Citation: 102 Ariz. 341,429 P.2d 660
• Parties: S. K. MARTIN and Alice E. Martin, husband and wife, Appellants, v. F. Britton BURNS and Paul Ferrin, Appellees.
• Court: Arizona Supreme Court

Page 660

429 P.2d 660

102 Ariz. 341

S. K. MARTIN and Alice E. Martin, husband and wife, Appellants, v. F. Britton BURNS and Paul Ferrin, Appellees.

No. 8351.

Supreme Court of Arizona, In Division.

July 6, 1967.

A. Y. Moore, Phoenix, for appellants.

Jennings, Strouss, Salmon & Trask, by Thelton D. Beck and Nicholas Udall, Phoenix, for appellees.

LOCKWOOD, Justice:

This is an action by plaintiffs Martin, appellants here, for alleged malpractice against the attorneys who represented them in the case of Overson v. Martin, 90 Ariz. 9, 363 P.2d 604 (1961). The Martins allege that their attorneys (hereinafter referred to as appellees) were negligent in failing, in the case cited, to call to this Court's attention that an order of the trial court granting a motion to set aside a default entered against the Martins was not appealable, and in failing to file a timely petition for rehearing after this Court ruled against the Martins and reinstated the default.

The original action was commenced by Overson against the Martins. When they failed to answer the summons the Martins were defaulted. Following the entry of the default, the Martins hired the appellees to represent them in an attempt to have the default set aside. The appellees filed a motion to set aside the default. The motion was granted by the trial court. Overson appealed the decision granting the motion to set aside the default to this Court.

The appellees did not raise the question of whether an order setting aside a default was an appealable order.

The only questions raised and decided upon the appeal in the Overson case were whether the Martins were guilty only of excusable delay before default was entered, and whether the trial court abused its discretion in setting aside the default. We resolved these issues against the Martins and ordered the default reinstated. The attorneys for the Martins did not file a motion for rehearing.

The Martins then hired another lawyer, who attempted to stay the mandate in the first case and to present the question of whether the order from the trial court was appealable. This Court ruled that the Martins could not at that time raise the question of the appealability of the order, since the question had not been raised on the appeal, and the Court had jurisdiction over the parties and the subject matter, and the mandate had been issued, although not physically delivered to the trial court. Overson v. Martin, 90 Ariz. 151, 367 P.2d 203 (1961).

The present action for malpractice was filed on April 15, 1963. The appellees filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court treated the motion as one for summary judgment. The trial judge ruled that there was no question of fact presented and that the attorneys were entitled to a judgment as a matter of law. From this judgment the present appeal ensued.

The only question for our consideration is whether the trial court was correct in ruling that as a matter of law it was not malpractice for the appellees to fail to urge on appeal that the order granting a motion to set aside a default is not appealable, and for the appellees to fail to move for a rehearing when this Court reinstated the default which the trial court had set aside.

An attorney must act for his client in a reasonably careful and skillful manner in light of his special professional knowledge. Sarti v. Udall, 91 Ariz. 24, 369 P.2d 92 (1962). He will not be held liable, while acting in good faith and in a belief...