Richmond v. Nodland

• Decision Date: 16 June 1993
• Docket Number: No. 920372,920372
• Citation: 501 N.W.2d 759
• Parties: Donald RICHMOND, Plaintiff and Appellant, v. Irvin NODLAND, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 759

501 N.W.2d 759

Donald RICHMOND, Plaintiff and Appellant, v. Irvin NODLAND, Defendant and Appellee.

Civ. No. 920372

Supreme Court of North Dakota.

June 16, 1993.

Donald Richmond, pro se.

James S. Hill (argued), of Zuger Kirmis & Smith, Bismarck, for defendant and appellee.

LEVINE, Justice.

Donald Richmond appeals from a district court summary judgment dismissing his action against Irvin Nodland for fraud and deceit, legal malpractice and breach of contract. We affirm.

In February 1988, Richmond was charged with arson in connection with a December 1987 mobile home fire. In May 1988, before the preliminary hearing, Assistant Burleigh County States Attorney Bruce Haskell filed, and the trial court granted, a motion to dismiss the arson charge against Richmond. The factual circumstances underlying these events are detailed in Richmond v. Haney, 480 N.W.2d 751 (N.D.1992), and need not be repeated here.

When Richmond learned he had been charged with arson, he contacted attorney Calvin Rolfson. Rolfson met with Haskell, reviewed the criminal complaint and supporting investigative reports in the file, and determined "that there was sufficient probable cause to charge [Richmond] with arson...." Rolfson recommended that Richmond be represented by a more experienced criminal defense attorney and arranged an April 6, 1988, meeting between Nodland and Richmond to discuss possible representation. Richmond claims that Rolfson also told him that Nodland would require a $10,000 retainer fee, but that any amount not used for Richmond's defense would be refunded. Although the parties dispute the terms of the retainer agreement reached at the April 6 meeting, it is undisputed that Nodland agreed to represent Richmond on the arson charge and that Richmond gave Nodland a $10,000 check.

Nodland entered an appearance on Richmond's behalf. He contacted Haskell and advised him of potential defects in the case, including Richmond's failure to sign the proof of loss form that had been submitted to the insurance carrier for the mobile home. In May 1988, on the date scheduled for Richmond's preliminary hearing, Haskell filed a motion to dismiss the criminal complaint. Haskell explained in an affidavit:

"The motion to dismiss was based upon my conversation with a representative of Allstate Insurance Company. I was informed that a proof of loss form had been submitted to the company, but that the form was apparently unsigned and that no other action had been taken to pursue the claim. It was my belief at that time that the failure to pursue the insurance claim would make it difficult to prove that Donald Richmond set the fire for the purpose of collecting insurance proceeds, therefore dismissal was appropriate."

The trial court granted the motion.

In April 1990, Richmond, appearing pro se, brought this action against Nodland for damages arising from Nodland's legal representation of him in regard to the 1988 arson charge. Richmond sought to recover for breach of contract the $10,000 he paid Nodland to represent him as well as damages for fraud and deceit and legal malpractice. Richmond alleges that Nodland fraudulently induced him into paying $10,000 for a trial defense requiring numerous expert witnesses that Nodland "knew would not be needed and which would not take place." Richmond further alleges that Nodland advised him that Haskell had been notified that there was no probable cause for issuance of the complaint, but that Haskell nevertheless refused to dismiss the charge. Richmond also alleges that Nodland deceived him by this advice in order to obtain the $10,000 advance for a defense in court when Nodland knew the complaint would ultimately be dismissed without the necessity of a trial. He asserts that he did not want the arson charge dismissed and that the terms of the fee arrangement with Nodland were that "if Haskell did change his mind and dismiss before the case got into court, the $10,000.00 would be returned" to him.

The trial court granted Nodland's motion for summary judgment, dismissing all of Richmond's claims. Richmond appeals, asserting that summary judgment was improperly granted in this case.

Summary judgment is appropriate when, after viewing the evidence in the light most favorable to the party opposing the motion, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or when the only issues to be resolved are questions of law. United Accounts, Inc. v. Teladvantage, Inc., 499 N.W.2d 115, 119 (N.D.1993). Under N.D.R.Civ.P. 56, the movant has the burden of establishing entitlement to summary judgment. First State Bank of Casselton v. McConnell, 410 N.W.2d 139, 140-141 (N.D.1987).

We agree with Nodland that the trial court properly granted summary judgment dismissing Richmond's claim for fraud and deceit. That claim is premised on Richmond's assertions that there was no probable cause to support the arson charge, that Nodland knew this at all times, and that Nodland fraudulently obtained the $10,000 fee because he knew no trial would take place. In Richmond v. Haney, supra, 480 N.W.2d at 758, we affirmed a summary judgment dismissing Richmond's malicious prosecution action based on the filing of the arson complaint, holding that "a person need not actually sign a proof of loss claim to be guilty of arson" and that "probable cause existed to instigate the prosecution against" Richmond. There is no dispute as to material facts on this issue. We conclude that the trial court properly granted summary judgment dismissing Richmond's claim based on fraud and deceit.

We also agree with Nodland that summary judgment of dismissal was proper with regard to Richmond's claim of legal malpractice. Richmond appears to argue that Nodland committed legal malpractice by failing to obtain a dismissal of the arson...