Sanders v. Smith

• Citation: 496 P.2d 1102,1972 NMCA 16,83 N.M. 706
• Decision Date: 21 January 1972
• Docket Number: No. 704,704
• Parties: Hallie C. SANDERS et al., Plaintiffs-Appellants, v. Joseph L. SMITH et al., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1102

496 P.2d 1102

83 N.M. 706

Hallie C. SANDERS et al., Plaintiffs-Appellants, v. Joseph L. SMITH et al., Defendants-Appellees.

No. 704.

Court of Appeals of New Mexico.

Jan. 21, 1972.

Rehearing Denied March 20, 1972.

Certiorari Denied May 2, 1972.

[83 NM 707] Dale B. Dilts, Albuquerque, for appellants.

Charles B. Larrabee, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellee Joseph L. Smith.

James R. Toulouse, Toulouse & Moore, Albuquerque, for appellees Don Rupert, General Adjustment Bureau, Great American Insurance Co.

OPINION

SUTIN, Judge.

This case involves, (1) a claim to recover damages against an attorney for legal malpractice which allegedly occurred during preparation for, investigation and trial of, a damage suit in Federal Court; and (2) for breach of contract, fraud and deceit against the other defendants. The trial court awarded summary judgment in favor of all defendants. Plaintiffs appeal.

We affirm as to the attorney. We reverse as to the other defendants.

1. Was Summary Judgment Proper on the Issue of Legal Malpractice?

The Federal Court trial involved an automobile collision on March 20, 1964, between plaintiffs' vehicle and a defendant's truck in the cross-over of the median on U.S. Highway 66 at Clines Corners. The jury returned a verdict for defendants.

Plaintiffs contend their attorney negligently prepared, investigated and tried the case in Federal Court as follows:

1. The attorney had in his possession but failed to introduce in evidence an aerial photograph of the scene which showed the 55 mph speed sign at the point of impact; that the attorney had such a photograph and it was not placed before the jury. Plaintiffs assert that the jury verdict for the defendants was based on the claim that Mrs. Sanders was speeding. Defendants claimed that Mrs. Sanders was going 60 mph in a 55 mph zone. Plaintiffs claim that the photo would have established that Mrs. Sanders had not yet entered the 55 mph zone when the accident occurred.

2. The attorney failed to obtain and introduce in evidence a New Mexico Highway Department log and diagram of the scene showing that the speed sign was located at the point of impact.

3. The attorney failed to impeach certain witnesses on the issue of the speed Mrs. Sanders was travelling, by use of prior statements they had made.

4. The attorney used the deposition of defendant Gehring instead of calling him as an adverse witness.

5. The attorney failed to use an expert witness to counteract impressions left by diagrams.

6. The attorney failed to call as a witness the Justice of the Peace before whom Gehring pled guilty to the traffic offense, even though the plea of guilty was established in evidence by Gehring's deposition.

7. The jury was not polled.

8. The attorney failed to advise the plaintiffs of settlement offers.

9. The attorney negligently failed to take an appeal from an adverse judgment entered in the Federal Court.

To support the defendant attorney's motion for summary judgment, he attached to his motion, (1) his own affidavit, together with all depositions and a complete transcript of the record in the Federal trial; (2) affidavits of three attorneys, two of whom were defense counsel in the Federal trial; (3) the affidavit of the regional claims manager of defendant insurance company.

The plaintiffs did not counter with any affidavits, depositions or testimony of any attorneys.

Plaintiffs filed a first amended complaint; defendants filed a motion for summary judgment.

On November 23, 24, 1970, summary judgment was granted all defendants.

This is a matter of first impression in New Mexico on the subject of liability for legal malpractice.

Plaintiffs do not seek to establish what the standard of legal practice is or should be in New Mexico. They contend in their brief that 'we have informed the judge of issues of fact to be presented to the jury when all doubts are resolved in favor of plaintiffs in accord with Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964). In fact the affidavits of the Plaintiff Sanders create issues of fact on all material matters.' Cervantes is a medical malpractice case in which summary judgment was granted the doctor, and it was affirmed. This is the only citation in plaintiffs' brief and the only argument made on the issue of an attorney's liability for negligence.

We limit this opinion to plaintiffs' claim and argument to determine whether an issue of material fact exists.

In Cervantes, the court said:

Before a physician or surgeon can be held liable for malpractice in the treatment of his patient, he must have departed from the recognized standards of medical practice in the community, or must have neglected to do something required by those standards. (Cases cited). The fact that a poor result is achieved or that an unintended incident transpired, unless exceptional circumstances are present, does not establish liability without a showing that the result or incident occurred because of the physician's failure to meet the standard either by his acts, neglect, or inattention. Such facts must generally be established by expert testimony. (Citations.) Likewise, expert testimony is generally required to establish causal connection. (Emphasis added).

On expert testimony, see also Crouch v. Most, 78 N.M. 406, 432 P.2d 250 (1967); Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825 (Ct.App.1969); Binns v. Schoenbrun, 81 N.M. 489, 468 P.2d 890 (Ct.App.1970).

Expert testimony in claims of legal malpractice means testimony of lawyers. See Dorf v. Relles, 355 F.2d 488, 17 A.L.R.3d 1433 (7th Cir. 1966). The defendant attorney presented affidavits of three layers that the preparation, investigation and trial in Federal Court were handled in a professional manner without negligence. These affidavits stand uncontradicted by any expert testimony. Sanders, except for their own affidavits and attachments, presented no evidence in the trial court by way of affidavits, depositions or testimony of any lawyer to substantiate his claims that the trial attorney in the Federal Court case 'departed from the recognized standards of (legal) practice in the community, or must have neglected to do something required by those standards.' He relies on his own affidavits and attachments. But the facts stated in the affidavits are inadmissible, because departure from or neglect of legal standards lies in the field of knowledge in which only an attorney can give a competent opinion. Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); U.J.I. 8.1, both applicable to medical malpractice.

'* * * ( W)here the facts are not in dispute, but only the legal effect of the facts is presented for determination, summary judgment may be properly granted.' Pederson v. Lothman, 63 N.M. 364, 320 P.2d 378 (1958). After the defendant attorney sustained his burden to establish the absence of a fact issue by expert testimony, the plaintiffs could not remain silent. They must apprise the court of available expert proof to the contrary and then produce it. Cervantes v. Forbis, supra. The plaintiffs did not claim they had any such expert proof.

Two factors are imperative in legal malpractice based upon negligence, (1) that the trial attorney was negligent in the preparation, investigation, or trial of a case; and (2) his negligence was the proximate cause of the injury. Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269 (1964). A lay witness does not have the experience, knowledge and wisdom to opinionate on the complexities of trial practice, including the verdict that a jury will render.

We do not believe that an issue of material fact exists on questions of negligence and proximate cause in the preparation, investigation, trial and failure to appeal the Federal Court case.

We wish to make it clear that this decision does not intend to establish recognized standards of legal practice in New Mexico, nor proof of legal malpractice. We answer only the contention of the plaintiffs in ...