Rino v. Mead

• Decision Date: 27 September 2002
• Docket Number: No. 01-165., No. 01-108
• Citation: 55 P.3d 13,2002 WY 144
• Parties: Theresa McCalla RINO, Appellant (Plaintiff), v. Katherine L. MEAD, Mead & Mead, Attorneys at Law; and James T. Sorensen, Appellees (Defendants). Theresa McCalla Rino, Appellant (Plaintiff), v. Katherine L. Mead, Mead & Mead, Attorneys at Law, and James T. Sorensen, Appellees (Defendants).
• Court: Wyoming Supreme Court

55 P.3d 13

2002 WY 144

Theresa McCalla RINO, Appellant (Plaintiff), v. Katherine L. MEAD, Mead & Mead, Attorneys at Law; and James T. Sorensen, Appellees (Defendants).

Theresa McCalla Rino, Appellant (Plaintiff), v. Katherine L. Mead, Mead & Mead, Attorneys at Law, and James T. Sorensen, Appellees (Defendants).

Nos. 01-108, 01-165.

Supreme Court of Wyoming.

September 27, 2002.

C.M. Aron of Aron and Hennig, LLP, Laramie, Wyoming, Representing Appellant.

Richard E. Day and Susan Chapin Stubson of Williams, Porter, Day & Neville, P.C., Casper, Wyoming, Representing Appellee Katherine L. Mead and Mead & Mead, Attorneys at Law.

Mark W. Gifford, Casper, Wyoming, Representing Appellee James T. Sorensen.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ and VOIGT, JJ., and DONNELL, D.J.

VOIGT, Justice.

[¶ 1] These consolidated appeals are challenges to the district court's grant of summary judgment to an attorney and an accountant in a professional malpractice case and the district court's further denial by inaction of a subsequent motion to reconsider. We affirm the summary judgment in favor of the accountant because there are no genuine issues of material fact as to whether he made any professional representations that were relied upon by the appellant, and he is entitled to a judgment as a matter of law. However, we reverse the summary judgment granted to the attorney because she did not establish a prima facie case entitling her to summary judgment.

FACTS

[¶ 2] In October 1996, J. Douglas McCalla (McCalla) filed for divorce from Theresa McCalla, now Theresa Rino (Rino). McCalla was represented by attorney John Stark (Stark). Rino hired Katherine L. Mead (Mead) to represent her. With the assistance of a mediator, McCalla and Rino settled child custody and support issues, leaving for trial only the issue of property and debt division.

[¶ 3] Shortly before the date set for trial, McCalla, Rino, Stark, and Mead met to attempt to work out the property and debt issues. Also in attendance was appellee James T. Sorensen (Sorensen), who had acted as the McCallas' accountant during their marriage. Sorensen brought with him to the meeting a compiled financial statement he recently had prepared for the McCallas to enable them to extend a bank credit line. That compiled financial statement was used at the meeting as the basis for a division of the marital assets and debts between McCalla and Rino. A settlement was reached and Stark advised the district court to cancel the trial.

[¶ 4] After the settlement meeting, a written settlement agreement was prepared. Rino refused to sign the agreement, terminated Mead's employment, and obtained new counsel. McCalla then filed a motion to enforce the agreement. After a hearing, an order was entered enforcing the settlement. The terms of the agreement were incorporated into the Decree of Divorce filed May 1, 1998.

[¶ 5] On September 23, 1999, Rino filed a professional malpractice complaint against Mead and Sorensen. Specifically, the complaint alleged that Mead had violated the following professional duties owed to Rino:

1. A duty of loyalty to her interests.

2. A duty to be truthful to her, and to honestly and in good faith keep her fully advised of the facts and law applicable to her legal situation in the divorce case, and of the preparations the attorneys had made for the trial set to commence on September 29, 1997.

3. A duty to investigate the applicable facts, particularly the valuation of the husband's interest in his law firm, and to evaluate the effect of those facts on the legal proceedings.

4. A duty to prepare for the trial set to commence on September 29, 1997, including but not limited to the duty to prepare the expert witnesses she allegedly had retained.

5. A duty to prepare for, advise Rino with regard to, and participate in, the mediation conducted on September 24, 1997, including but not limited to the duty to be conversant with the relevant financial facts which were in dispute between the parties, and a duty to negotiate zealously on behalf of Rino.

[¶ 6] The complaint alleged that Sorensen had violated the following professional duties owed to Rino:

1. A duty of loyalty to her interests when he purported to act on her behalf.

2. A duty to be truthful and unbiased with respect to the valuation of the husband's interest in his law firm.

3. A duty to provide accounting information that was truthful and represented accurately what it purported to show about the parties' assets and liabilities.

[¶ 7] Finally, Rino's complaint alleged that, as a result of the malpractice of Mead and Sorensen, Rino received more than $400,000.00 less than she should have received in the property division.

[¶ 8] Sorensen and Mead separately filed motions for summary judgment. Mead argued that the district court's enforcement of the settlement agreement collaterally estopped Rino from later contending that she had not agreed to the settlement. Sorensen's primary argument was that Rino knew the compiled financial statement was never intended by Sorensen as a representation of the value of the properties listed. The district court granted both motions and these appeals followed.

ISSUES

[¶ 9] The parties do not agree as to what issues are before this Court. To more fully present the parties' viewpoints, we will set forth the issues as they have been stated by them. Rino lists the issues as follows:

1. Whether it is error to grant summary judgment in favor of a lawyer sued for malpractice when there is [a] dispute of fact as to the following errors by the attorney:

a. Failure to hire an expert accountant for trial as promised.

b. Failure to provide advice or explanation of misleading financial documents with regard to the client's husband's law firm, showing the husband's interest in the law firm to have virtually zero value.

c. Failure to hire an attorney expert for trial to testify to the value of the husband's work in progress, as the attorney had promised.

d. Failure to obtain information about the client's husband's law firm financials and work in progress e. Failure to assert a claim for alimony as promised.

f. Failure to be prepared to try the case.

g. Settlement of the case without the client's authority.

h. Incorrect legal advice concerning the client's right to a share of her husband's retirement account accumulated during the marriage.

2. Whether the court can disregard the opinions of the client's expert because they are based on assuming the hypothetical facts of the client's allegations of malpractice.

3. Whether the court can disregard the deposition testimony of the client's experts because the transcripts were filed of record by the opposing parties rather than the client.

4. Whether a court can rely on an expert opinion that there was no legal malpractice in a divorce case, when the expert considered only material from the divorce case while failing to consider any of the disputed facts in the malpractice claim itself.

5. Whether a client has to offer contradictory expert testimony when the lawyer's expert has given no opinion that there was an absence of malpractice.

* * *

6. Where both parties' experts agree it is accountant malpractice to present and use false and misleading financial information, whether the court can grant summary [judgment] on the factual issue of whether the financial information was misleading.

* * *

7. Whether it is error for the trial court to deny [W.R.C.P.] 60 relief when the court was incorrect with regard to the timely filing of the plaintiff's expert information in opposition to summary judgment.

[¶ 10] Mead contends that the sole issue before this Court is whether the district court properly entered summary judgment in favor of Mead when Rino failed to submit appropriate expert affidavits or other testimony to establish a genuine issue of material fact to counter the affidavit of Mead's expert that Mead acted in a reasonable, careful and prudent manner with respect to her representation of Rino and did not fall below the applicable standard of care.

[¶ 11] Sorensen presents the accountant malpractice issue as being whether summary judgment was appropriate where Rino failed to submit expert testimony to counter the testimony of Sorensen's expert that Sorensen complied in all respects with the applicable standard of care, where there was uncontroverted evidence that Sorensen effectively disclaimed any representation regarding the accuracy of the information presented in the compiled financial statement, and where Rino admitted that she did not rely upon the financial statement compiled by Sorensen.

STANDARD OF REVIEW

[¶ 12] Rulings on summary judgment motions are governed by the following language found in W.R.C.P. 56(c):

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Our standard for the appellate review of a summary judgment was recently reiterated in Hasvold v. Park County School Dist. No. 6, 2002 WY 65, ¶ 11, 45 P.3d 635, 637-38 (Wyo.2002) (quoting Unicorn Drilling, Inc. v. Heart Mountain Irr. Dist., 3 P.3d 857, 860 (Wyo.2000)

):

"Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law.... We review a summary judgment in the same light as the district court, using the same materials and following the same standards. `We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record.'... Summary judgment serves the purpose of eliminating formal trials where only questions of law are involved.... We review a grant of summary judgment by deciding a

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