O'Neil v. Vasseur
| Decision Date | 26 January 1990 |
| Docket Number | No. 17804,17804 |
| Citation | 796 P.2d 134,118 Idaho 257 |
| Court | Idaho Court of Appeals |
| Parties | Jerry Bryant O'NEIL, and Jerry Bryant O'Neil, Guardian ad Litem for David Arthur O'Neil, Wendy Kay O'Neil, Laura Beth O'Neil, Sara Louise O'Neil, and Maria Jennifer O'Neil, Plaintiffs-Appellants, v. Thomas M. VASSEUR, Norman L. Gissel, and Thomas M. Vasseur and Norman L. Gissel, doing business together as "Vasseur & Gissel, Attorneys at Law," Defendants-Respondents. |
Mark S. Prusynski and W. Scott Wigle, Boise, for defendants-respondents.
In this appeal, Jerry O'Neil challenges the district court's order granting Thomas Vasseur and Norman Gissel's motion for summary judgment in an action involving alleged attorney malpractice. We affirm.
We are asked by O'Neil to address several questions:
1. If an attorney, by willful neglect and in bad faith, delays obtaining a judgment for his client, should the attorney be held liable for his client's damages under a bad faith tort theory?
2. If so whether he should be held liable for damages:
(a) --associated with completing performance and mitigating damages in the underlying case;
(b) --for the loss of use of the monetary judgment on the original case during the period of delay;
(c) --representing emotional damages and other injury, if any, associated with the attorney's refusal to proceed with the client's case;
(d) --to serve as punitive or exemplary damages.
3. Whether O'Neil should be allowed discovery of relevant information possessed by the Idaho State Bar Commission regarding the attorneys.
In response, the attorneys ask us (1) not to consider the bad faith issue, contending that issue was not raised in the trial court and (2) to consider whether the damages in this action were already awarded in another action, O'Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1987); 116 Idaho 507, 777 P.2d 729 (1989) (hereinafter Schuckardt ).
The facts surrounding this case are complex and have been litigated in the Idaho courts for several years. O'Neil's wife and children became involved in the "Fatima Crusade," a radical sect of the Catholic Church led by Bishop Francis Schuckardt. In December, 1975, Vasseur and Gissel, formerly "Vasseur & Gissel, Attorneys at Law," were hired by O'Neil to prosecute an alienation of affections case against Schuckardt. O'Neil paid the attorneys a retainer fee of $2000 at that time.
The attorneys filed a complaint against Schuckardt in December, 1975. However, for the next three years and nine months, they engaged in little formal activity on the case despite continual pressure from O'Neil to proceed with the matter.
During this time, the relationship between O'Neil and his attorneys deteriorated. In October, 1979, after learning the Schuckardt case was about to be dismissed for lack of activity, O'Neil took over the case himself and filed this action, pro se, against the attorneys.
Gissel formally withdrew as O'Neil's attorney on November 19, 1979, and Vasseur withdrew the next day. Since its commencement, this case has undergone a number of summary judgment motions and amendments to the pleadings. Most significantly, in 1988, this Court dismissed O'Neil's first appeal due to improper certification of a partial summary judgment. O'Neil v. Vasseur, 113 Idaho 886, 749 P.2d 1011 (Ct.App.1988) (review denied). On remand, the district court entered a final summary judgment in favor of Vasseur and Gissel. At that time the $2000 retainer fee, plus interest accrued thereon, was returned to O'Neil. This appeal followed.
The summary judgment of September 9, 1988, from which O'Neil has appealed, was based in part upon a stipulation by which O'Neil agreed to accept the sum of $2000 which previously had been deposited in court as full satisfaction for the above-mentioned retainer plus interest on the unearned portion. According to the stipulation, the parties further agreed that all prior agreements between them would be The summary judgment denied any damages to O'Neil for the following:
[118 Idaho 260] terminated, that all files belonging to the O'Neils would be returned to them and that summary judgment in the "form attached" to the stipulation could be entered by the court without the necessity of any further hearing on the matter.
1. All damages associated with completing performance and mitigating damages in Schuckardt;
2. All damages for the loss of use of the monetary judgment in Schuckardt for any period it was delayed due to the acts of Vasseur and Gissel;
3. Any damage associated with Vasseur and Gissel's refusal to proceed in Schuckardt; and
4. Punitive and/or exemplary damages.
The summary judgment concluded with the statement: "This order and judgment, including the prior orders referred to above, constitutes a full and final determination of all of the claims of the parties in this action, with the exception of any claims for costs that may be awardable pursuant to Rule 54 of the Idaho Rules of Civil Procedure."
The summary judgment did not address the question of whether there was an issue of "bad faith" tort in this case. However, a prior summary judgment memorandum decision and order, dated July 19 and 20, 1983, and filed July 22, 1983, which was written by Judge Richard D. Magnuson, did consider O'Neil's arguments on issues of "want of knowledge, recklessness, constructive fraud and bad faith." Judge Magnuson held O'Neil had not shown facts indicating intentional, wilful and wanton misconduct. This order appears to have been included by reference in the summary judgment of September 9, 1988, from which this appeal was taken.
The standards controlling the entry and review of a summary judgment are well-settled. Disputed facts are viewed in favor of the party opposing the motion for summary judgment. Where a jury has been requested, as in the present case, the non-moving party must receive the benefit of every reasonable inference that may be drawn from the facts presented. Earl v. Cryovac, A Division of W.R. Grace Co., 115 Idaho 1087, 772 P.2d 725 (Ct.App.1989) (review denied); see also Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982). Therefore, O'Neil had the burden to demonstrate to the judge that a triable issue arose from the facts. Earl, supra; 6 J. MOORE, W. TAGGART, & J. WICKER, MOORE'S FEDERAL PRACTICE § 56.11 (2d ed.1988). "A 'triable issue' exists whenever reasonable minds could disagree as to the material facts or the inferences to be drawn from those facts." Earl, supra 115 Idaho at 1093-94, 772 P.2d at 731-32. This threshold of reasonableness is as far as the judge may look. The task of weighing the evidence and observing the demeanor of witnesses is properly preserved for the jury. Id. at 1094, 772 P.2d at 732.
Here, both parties offered motions for summary judgment. Vasseur also demanded a jury trial. In his memorandum decision, the judge acknowledged that Vasseur and Gissel's representation of O'Neil's alienation of affection case was negligent. 1 The judge correctly noted that to establish liability for negligence, damage caused by negligence must be proven to sustain a recovery. The judge stated:
Normally proximate cause is a question for the trier of fact and under the circumstances here the Court is unable to find as a matter of law that [Vasseur and We are thus presented with the question of whether the district court properly dismissed O'Neil's claim by granting Vasseur and Gissel's summary judgment motion. Because the invasion of privacy suit is still unresolved, the damages that may be awarded therein are speculative, conjectural and unliquidated. Furthermore, it has not been established that Vasseur and Gissel's delay is responsible for a diminution of that possible award. To prove this contested fact, O'Neil would have to prove the amount a jury would have awarded absent the delay. We agree with the district court that any evidence tending to shed light on this question would be inadmissible due to its speculative nature. In negligence cases, summary judgment is appropriate in only the most clear situations. Jarman v. Hale, 112 Idaho 270, 273, 731 P.2d 813, 816 (Ct.App.1986). Negligence issues are jury questions "unless the proof is so clear that different minds cannot reasonably draw different conclusions or where all reasonable minds would construe the facts and circumstances of the case in only one way." Annau v. Schutte, 96 Idaho 704, 707, 535 P.2d 1095, 1098 (1975). Customarily, a claim of negligence presents questions of fact for the jury to resolve. Contested facts may not be resolved at the summary judgment stage. Jarman, supra; Fajen v. Allstate Insurance Co., 96 Idaho 886, 538 P.2d 1190 (1975); Johnson v. Stanger, 95 Idaho 408, 510 P.2d 303 (1973). See also State of Idaho v. Bunker Hill Co., 662 F.Supp. 725 (D.Idaho 1987). We will now consider the issues in the light of these standards.
[118 Idaho 261] Gissel's] negligence is the proximate cause of [O'Neil's] loss of one-half of the alienation award or that gross negligence or wanton, wilful or reckless acts will entitle [O'Neil] to an award of exemplary or punitive damages. On the contrary, [O'Neil] has shown no right to either award. (Emphasis original.)
Vasseur and Gissel contend this Court should not consider the issue of bad faith as raised by O'Neil in his briefs. They assert this issue was not presented to the district court. We disagree. The record clearly shows that this issue was considered by Judge Magnuson and decided by him against O'Neil on or about July 19, 1983. As stated, this decision was incorporated in the summary judgment of September 9, 1988. Therefore, this issue may be considered in this appeal.
The phrase "justice delayed is justice denied," takes on significance when reviewing the...
To continue reading
Request your trial
-
McClure v. Lincoln Cnty. & Lincoln Cnty. Bd. of Comm'rs
...P.2d 958 (Idaho 1980); Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980)); see also O'Neil v. Vasseur, 118 Idaho 257, 796 P.2d 134, 142 (Idaho Ct.App.1990). Punitive damages may be recovered in a contract action. Cuddy Mtn. Concrete, Inc. v. Citadel Construction, In......
-
McGilvray v. Farmers New World Life Ins. Co.
...wantonly, maliciously or outrageously. See Vaught v. Dairyland Ins. Co., 131 Idaho 357, 362, 956 P.2d 674 (1998); O'Neil v. Vasseur, 118 Idaho 257, 796 P.2d 134 (Ct.App.1990). Because we have upheld the dismissal on summary judgment of the bad faith claim and the relief being sought thereun......
-
Vendelin v. Costco Wholesale Corp.
...O'Dell v. Basabe, 119 Idaho 796, 810 P.2d 1082 (1991); Schaefer v. Ready, 134 Idaho 378, 3 P.3d 56 (Ct.App.2000); O'Neil v. Vasseur, 118 Idaho 257, 796 P.2d 134 (Ct.App.1990). Thus, the district court's failure to include Costco's requested instruction regarding the "extremely harmful menta......
-
Margaret H. Wayne Trust v. Lipsky
...have been avoided by reasonable acts, including reasonable expenditures, after actionable conduct has taken place. O'Neil v. Vasseur, 118 Idaho 257, 796 P.2d 134 (Ct.App.1990); Davis v. First Interstate Bank of Idaho, N.A., 115 Idaho 169, 765 P.2d 680 (1988). Whether the action taken by Mrs......