Samuel v. Hepworth, Nungester & Lezamiz, Inc., 24156.

Citation996 P.2d 303,134 Idaho 84
Decision Date28 February 2000
Docket NumberNo. 24156.,24156.
PartiesCharles F. SAMUEL and Valerie A. Samuel, Plaintiffs-Appellants, v. HEPWORTH, NUNGESTER & LEZAMIZ, INC., John Lezamiz and Brit Groom, Defendants-Respondents.
CourtUnited States State Supreme Court of Idaho

Charles F. Samuel, Valerie A. Samuel, Nordman, pro se appellants. Charles F. Samuel argued.

Paine, Hamblen, Coffin, Brooke & Miller, Coeur d'Alene; Shannon M. Votava, Spokane, Washington, for respondents. Eugene L. Miller argued.

KIDWELL, Justice.

Charles F. Samuel and Valerie A. Samuel (the Samuels) sued the defendant attorneys and law firm seeking damages for attorney malpractice, breach of contract, fraud and misrepresentation. The district court granted summary judgment to the defendants, and the Samuels appealed. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Charles Samuel was a seasonal employee of the U.S. Forest Service at the Priest Lake Ranger District in the summer of 1988. During the season, Charles and his family lived in a trailer in a Forest Service group camping area near the ranger station. Several incidents caused friction between Charles and his supervisors. Among other things, Charles believed that his supervisors illegally garnished his wages, unjustly suspected him of stealing several crosscut saws, deliberately furnished him with faulty equipment, unfairly deprived him of tree planting and firefighting assignments, and unreasonably withheld mail and messages addressed to him. Most importantly, Charles believed that the Forest Service, together with the Bonner County Sheriff's Office,1 was spying on him and his family using hidden listening devices and night vision equipment.

When Charles and his wife Valerie decided to sue the Forest Service, local attorney Bruce Greene referred them to the Twin Falls law firm of Hepworth, Nungester & Lezamiz (the Hepworth firm). The Samuels met with John T. Lezamiz of the Hepworth firm in April 1989. Accounts of this meeting differ. The Hepworth firm asserts that it limited the scope of its representation to investigating the Samuels' claims and filing any necessary tort claim notices. The Samuels have variously contended that (1) they signed a contingent fee agreement and that the Hepworth firm agreed to fully represent them, and (2) they reached no agreement which would allow the Hepworth firm to take any action on their case. No written agreement between the Samuels and the Hepworth firm is in the record. The Hepworth firm did, however, prepare a "New Matter Report" indicating that it would have a contingency fee of 40%.

After Lezamiz interviewed several Forest Service employees at Priest Lake, the Hepworth firm prepared federal and state tort claim notices which the Samuels signed. On August 22, 1989, the Hepworth firm filed tort claim notices with the Forest Service. The Forest Service denied the tort claims on February 20, 1990. Bonner County also denied the tort claim brought against it.

On March 6, 1990, Brit Groom of the Hepworth firm wrote to the Samuels. Groom wrote that the Samuels' claims had merit but stated that, for financial reasons, the Hepworth firm declined to represent the Samuels any further. The letter recited that the Hepworth firm had agreed only to investigate the Samuels' claim and to file tort notices. Groom advised the Samuels that they had six months from the denial date in which to file a complaint against the federal government, and he further advised them to seek other legal counsel.

After the Hepworth firm withdrew, the Samuels wrote a series of letters to the firm accusing it of numerous instances of malfeasance, including forging the government documents that denied the Samuels' tort claims. The Hepworth firm corresponded with the Samuels for several months concerning these accusations. On May 22, 1990, however, the Hepworth firm ended its correspondence with the Samuels, calling it "fruitless."

Although the Samuels contacted forty-seven attorneys, they were unable to obtain legal representation for a case against the Forest Service. Therefore, they proceeded pro se. The Samuels pursued a federal tort claim action, Samuel v. United States, against the Forest Service and the United States in federal district court in Idaho. The federal district court dismissed all claims except those involving invasion of privacy and intentional infliction of emotional distress. On the date set for trial, the Samuels moved for a dismissal, which the federal district court granted. Nevertheless, the Samuels appealed to the Court of Appeals for the Ninth Circuit. On appeal, the Ninth Circuit affirmed. See Samuel v. United States, 37 F.3d 1506 (9th Cir.1994) (unpublished disposition).

Acting on their belief that a tort claim notice was never filed with Bonner County, the Samuels also filed suit in state district court, Samuel v. Bonner County Records, CV-92-0085-JRM. Thereafter, alleging that Judge Michaud allowed perjured testimony in Bonner County Records, the Samuels sued Michaud and fifty-five other defendants in federal district court. This action was decided in favor of the defendants. Samuel v. Michaud, 980 F.Supp. 1381, 1417-18 (D.Idaho 1996), aff'd, 129 F.3d 127 (9th Cir.1997) (unpublished disposition).

The Samuels filed a complaint against Lezamiz, Groom, and the Hepworth firm (collectively, the Hepworth firm) for "professional malpractice, breach of warranty and implied covenant, and fraud and deceit." After several adverse rulings, the Samuels moved to disqualify Judge Michaud for bias and prejudice. After a hearing, the district court denied the motion. The Samuels also moved to amend their complaint to seek punitive damages. The district court denied this motion as well.

The Hepworth firm moved for summary judgment. The district court granted partial summary judgment for the Hepworth firm on the issues of attorney malpractice and breach of contract. It held that the Samuels had not demonstrated any injury caused by the Hepworth firm's alleged negligence. When the district court denied the Samuels' motion for reconsideration, the Samuels filed an appeal with this Court. They subsequently withdrew their appeal.

In its first motion for summary judgment, the Hepworth firm failed to present argument regarding the Samuels' claims of fraud and misrepresentation. After the grant of partial summary judgment, the Hepworth firm filed for summary judgment on the remaining issues. The district court, again finding no proof of damages, granted summary judgment for the Hepworth firm on the remaining issues. When the district court denied the Samuels' motion for reconsideration, the Samuels filed the present appeal.

II. STANDARD OF REVIEW

When this Court reviews a district court's grant of summary judgment, it uses the same standard properly employed by the district court originally ruling on the motion. Lowder v. Minidoka County Joint Sch. Dist. No. 331, 132 Idaho 834, 837, 979 P.2d 1192, 1195 (1999). Summary judgment is proper "if the pleadings, depositions, 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." I.R.C.P. 56(c). This Court construes the record in the light most favorable to the non-moving party, and draws all reasonable inferences in favor of that party. DBSI/TRI V v. Bender, 130 Idaho 796, 801-02, 948 P.2d 151, 156-57 (1997). If reasonable minds might come to different conclusions, summary judgment is inappropriate. Id. at 802, 948 P.2d at 157.

"[A] mere scintilla of evidence or only slight doubt as to the facts" is not sufficient to create a genuine issue for purposes of summary judgment. Harpole v. State, 131 Idaho 437, 439, 958 P.2d 594, 596 (1998). The non-moving party "must respond to the summary judgment motion with specific facts showing there is a genuine issue for trial." Tuttle v. Sudenga Indus., Inc., 125 Idaho 145, 150, 868 P.2d 473, 478 (1994). The Court considers only that material contained in affidavits and depositions which is based on personal knowledge and which would be admissible at trial. Harris v. State, Dep't of Health & Welfare, 123 Idaho 295, 298, 847 P.2d 1156, 1159 (1992). Summary judgment is appropriate where a non-moving party fails to make a showing sufficient to establish the existence of an element essential to its case when it bears the burden of proof. Id.

III. ANALYSIS
A. Judge Michaud Did Not Abuse His Discretion in Denying the Samuels' Motion to Disqualify Him.

The Samuels moved to disqualify Judge Michaud for bias. They contended that Judge Michaud showed bias by such alleged actions as concealing records and raising law library photocopy costs. They also asserted that Judge Michaud's conduct in Samuel v. Bonner County Records exhibited bias against them.

After a hearing, Judge Michaud held that Valerie's affidavit in support of the motion to disqualify was deficient because it did not distinctly state the grounds upon which disqualification was based. In addition, he stated that his only knowledge of the Samuels and their claim was acquired from the court's official proceedings, and that he had no personal bias or animosity against the Samuels or their claim. Finding no bias, Judge Michaud denied the motion to disqualify. The Samuels contend that this ruling was an abuse of discretion.

A party may move to disqualify a judge from presiding on the grounds of bias. I.R.C.P. 40(d)(2)(A)(4). An affidavit "stating distinctly the grounds upon which disqualification is based and the facts relied upon in support of the motion" must accompany the motion. I.R.C.P. 40(d)(2)(B). Adverse rulings, by themselves, do not demonstrate disqualifying bias. Bell v. Bell, 122 Idaho 520, 530, 835 P.2d 1331, 1341 (Ct.App.1992). To be disqualifying, the alleged bias "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what...

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