Meller v. Bartlett

Decision Date08 June 1990
Docket NumberNo. 88-138,88-138
PartiesJeffrey B. MELLER v. A. Barbara BARTLETT.
CourtVermont Supreme Court

O'Neill and Crawford, Burlington, and Paul L. Reiber of Abell, Kenlan, Schwiebert & Hall, Rutland, for plaintiff-appellee.

Thomas J. Donovan, Burlington, and Michael Rose (on the brief), St. Albans, for defendant-appellant.

Before PECK, GIBSON and MORSE, JJ.

PECK, Justice.

Defendant appeals from a judgment, after a trial by jury, in favor of plaintiff in an action to recover legal fees. In the trial court, defendant claimed that plaintiff had not provided competent representation, and violated his fiduciary duty by withdrawing as counsel before resolution of her case. We affirm.

Plaintiff first represented defendant's husband, who had been charged with arson. Before that charge was dropped, defendant retained plaintiff to represent her in litigation against the fire insurer. Defendant asserts that plaintiff pressured her and her husband to sell real property in South Burlington at a loss of $20,000 in order to pay his legal fee, and claimed that plaintiff threatened to abandon defendants' claims if his fee were not paid. Defendant also states that when the insurer sued her husband in a third-party complaint alleging arson, potentially making defendant and her husband adverse parties, plaintiff "represented Mr. Bartlett's interests right through to the end of the case," despite the conflict.

Plaintiff responds that there was no conflict, and that he offered the Bartletts three different fee arrangements, finally agreeing on a twenty percent contingency fee with a reduced hourly rate of twenty dollars and a total cap of $15,000. According to plaintiff, payments were made to the cap amount in July of 1984. Later bills did not indicate amounts actually due. At one point, when the insurer moved to disqualify plaintiff because he had previously represented a witness in the case, plaintiff hired another attorney to handle the motion which was denied. Plaintiff claims that a separate attorney was hired for Mr. Bartlett when the insurer filed its third-party action, and the Bartletts and this attorney bargained secretly with the insurer's attorney to settle the case in a way that would reduce or eliminate plaintiff's fee. After the case was settled for $150,000, plaintiff filed a trustee process against what he claimed was his share of the settlement amount. He prevailed in the trial court, and the court directed a verdict in his favor on defendant's counterclaim.

Defendant argues that there was sufficient evidence to substantiate her counterclaim. When reviewing a trial court's grant of a directed verdict, we must view the evidence in the light most favorable to the nonmoving party, excluding any modifying evidence; a directed verdict is not proper if any evidence fairly and reasonably supports the nonmoving party's claim. Seewaldt v. Mount Snow, Ltd., 150 Vt. 238, 239, 552 A.2d 1201, 1201-02 (1988). Nevertheless, we will uphold the trial court where the nonmoving party has failed to present evidence on an essential element of her case. Id. at 240, 552 A.2d at 1202.

In this case, defendant failed to support her claims through expert testimony, a prerequisite when professional malpractice or misconduct is in issue. Senesac v. Associates in Obstetrics & Gynecology, 141 Vt....

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5 cases
  • Buke, LLC v. Cross Country Auto Sales, LLC
    • United States
    • Court of Appeals of New Mexico
    • June 25, 2014
    ...malpractice claim premised on alleged conflict of interest or breach of fiduciary duty requires expert testimony); Meller v. Bartlett, 154 Vt. 622, 580 A.2d 484, 485 (1990) (holding that lack of expert testimony was fatal to claims of conflict of interest, failure to account, and unauthoriz......
  • Taylor v. National Life Ins. Co.
    • United States
    • Vermont Supreme Court
    • December 17, 1993
    ...a directed verdict is not proper if any evidence fairly and reasonably supports the nonmoving party's claim." Meller v. Bartlett, 154 Vt. 622, 623-24, 580 A.2d 484, 485 (1990). Further, "we will uphold the trial court where the nonmoving party has failed to present evidence on an essential ......
  • Buke, LLC v. Cross Country Auto Sales, LLC
    • United States
    • Court of Appeals of New Mexico
    • April 23, 2014
    ...a malpractice claim premised on alleged conflict of interest or breach of fiduciary duty requires expert testimony); Meller v. Bartlett, 580 A.2d 484, 485 (Vt. 1990) (holding that lack of expert testimony was fatal to claims of conflict of interest, failure to account, and unauthorized hiri......
  • Coll v. Johnson, 92-526
    • United States
    • Vermont Supreme Court
    • November 19, 1993
    ...should not be granted if there is any evidence that fairly and reasonably supports the nonmoving party's case. Meller v. Bartlett, 154 Vt. 622, 623-24, 580 A.2d 484, 485 (1990). A directed verdict will be upheld, however, if the nonmoving party fails to present evidence on an essential elem......
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1 books & journal articles
  • Ruminations
    • United States
    • Vermont Bar Association Vermont Bar Journal No. 42-2, June 2016
    • Invalid date
    ...January 15, 2010. [14] Cobb v. Gibson, unpublished, June 2002. [15] Fitzgerald v. Congleton, 155 Vt. 283 (1990). [16] Meller v. Bartlett, 154 Vt. 622 (1990). [17] Brown v. Kelly, 140 Vt. 336 (1981). [18] Smalley v. Soragen, 30 Vt. 2 (1856). [19] Russo v. Griffin, 147 Vt. 20 (1986). [20] Ass......

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