Witte v. Desmarais

Decision Date01 September 1992
Docket NumberNo. 91-252,91-252
Citation136 N.H. 178,614 A.2d 116
PartiesBruce P. WITTE v. Wilfred J. DESMARAIS and Wiggin & Nourie.
CourtNew Hampshire Supreme Court

Thomas A. Rappa, Jr., Woodsville, on brief and orally, for plaintiff.

Merrill & Broderick, Manchester (John T. Broderick, Jr., on brief and orally and Mark E. Howard on brief, for defendants.

THAYER, Justice.

This is a legal malpractice action. The plaintiff, Bruce P. Witte, appeals the Superior Court's (Hampsey, J.) decision granting the defendants' motion to dismiss his suit for failure to state a claim upon which relief may be based. The defendants are Wiggin & Nourie, a Manchester law firm, and Wilfred J. Desmarais, one of its partners. Witte makes several allegations of negligence, while the defendants argue, among other things, that Witte's claims of damages are too speculative to support a cause of action. We hold that, as to one of Witte's allegations, his claims of damages are not too speculative, and therefore reverse and remand for further proceedings.

Witte is no stranger to the state and federal courts; his domestic relations have been the fount from which much litigation has sprung. See, e.g., Witte v. Justices of New Hampshire Superior Court, 831 F.2d 362 (1st Cir.1987); Christy & Tessier v. Witte, 126 N.H. 702, 495 A.2d 1291 (1985); Witte v. Witte, No. 83-184 (N.H.; June 2, 1983). This most recent foray alleges malpractice stemming from the defendants' handling of Witte's divorce ten years ago. In his writ, Witte alleges:

"[T]he defendants were negligent in providing professional legal services to the plaintiff during their representation of him before the Hillsborough County Superior Court in the case of Witte v. Witte, # M-82-579. The defendants owed the plaintiff a duty of care and competent representation and breached that duty as further set out in the attached schedule A, said breach being the direct, legal and proximate cause of significant damage to the plaintiff, both monetarily and emotionally."

Schedule A sets forth several specific allegations of negligence; we will list them seriatim as we discuss the merits of Witte's appeal below.

As a preliminary matter, we outline the well-established review standard: "On an appeal from an order granting a motion to dismiss, the only issue raised is whether the allegations are reasonably susceptible of a construction that would permit recovery." Collectramatic, Inc. v. Kentucky Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000 (1985) (quotation omitted). All of Witte's factual assertions must be presumed true and read in the light most favorable to him, see Nutter v. Frisbie Mem. Hosp., 124 N.H. 791, 793, 474 A.2d 584, 585 (1984), and all reasonable inferences must be drawn to support Witte's position, see Collectramatic supra.

On a motion to dismiss, of course, the plaintiff's writ must be assessed in light of the law governing the tort or violation alleged--here, legal malpractice. In North Bay Council, Inc. v. Bruckner, 131 N.H. 538, 563 A.2d 428 (1989), we described this tort as follows:

"The elements of liability in a legal malpractice action ... require demonstration of a relationship, as of client and attorney, upon the latter of whom the law imposes a duty to exercise care, skill and knowledge in providing legal services to the client; a breach of that duty; and a connection of legally recognized causation between the breach and resulting harm to the client. The malpractice plaintiff's burden in proving liability is thus essentially the same as any negligence plaintiff's burden to prove facts upon which the law imposes a duty of care, breach of that duty, and so-called proximate causation of harm."

Id. at 542, 563 A.2d at 430 (citations omitted). Thus, in order to withstand a motion to dismiss, a legal malpractice plaintiff must adequately plead the three basic elements of negligence: duty, breach, and causation of damages. The first element, duty, is adequately pleaded by alleging an attorney-client relationship, see Fairhaven Textile v. Sheehan, Phinney, et al., 695 F.Supp. 71, 73 (D.N.H.1988), and does not appear to be a matter of dispute here.

We turn now to Witte's several allegations of malpractice and determine whether they do in fact state a claim upon which relief could be based. First, we address Witte's allegation in his brief that the defendants

"intentionally [led] the plaintiff to believe he would be represented by a renowned partner of the firm, whose services the plaintiff expressly requested and paid to retain, only to later inform the plaintiff, at a point in the case when it was impractical to retain new counsel, that the attorney would not be available to try the case after all."

Although Witte's brief insinuates that the defendants deliberately misled him and made him the victim of a "bait and switch," we must base our review of the trial court's order on Witte's pleadings below, not on his appellate arguments. See Collectramatic, 127 N.H. at 320, 499 A.2d at 1000. The writ itself states:

"2. Dr. Witte expressly retained the services of L. Jonathan Ross, Esquire of the defendant law firm, Wiggin & Nourie, to represent him in [his divorce] matter.

3. During the pre-trial phase of that litigation Dr. Witte was informed by agents of Wiggin & Nourie that the defendant, Wilfred J. Desmarais, Esquire, would be preparing the case for Mr. Ross, but that Mr. Ross would be available to actually present the case at trial.

4. Shortly before the matter was scheduled for a hearing on the merits, Dr. Witte was informed that Mr. Ross would not be available to try his case and that he was free to seek alternative, and possibly more economical, legal representation should he so choose.

5. At that late stage in the matter the plaintiff felt compelled to continue to retain the services of Wiggin & Nourie and was actually represented through the hearing on the merits by the defendant, Wilfred J. Desmarais, Esquire, of that firm."

According to the defendants, Jonathan Ross was unable to handle Witte's case due to illness.

Assuming, as we must, all the allegations above to be true, and drawing all reasonable inferences therefrom in the light most favorable to the plaintiff, we hold that, with regard to this claim, Witte has failed to plead one of the requisite elements of his cause of action: breach of the defendants' duty to competently and diligently represent him. His writ alleges neither deception nor misrepresentation and it makes no suggestion that the defendants intentionally or inadvertently withheld information about Ross' availability. Without some assertion of carelessness or deceit, the conduct described in the writ merely states an unfortunate chain of events, particularly as the defendants took pains to tell Witte of his option to seek other counsel. A law firm is not a guarantor of its attorneys' good health and does not breach its duty simply by informing a client that the attorney he or she originally requested is no longer available. Consequently, the trial court properly granted the defendants' motion to dismiss with regard to this allegation. Whether the facts as alleged present a contract issue is not before us, and we make no decision in that regard.

Next, we address Witte's argument, as stated in his brief, that

"[Desmarais'] failure to disclose to his client the potential prejudice of the hearing officer scheduled to hear the plaintiff's case until the parties were literally walking into the hearing room, in spite of the fact that the hearing officer's identity was known to [Desmarais] well in advance of the hearing, breached the duty of professional representation owed the client."

This statement accurately summarizes Witte's argument and allegations as they appear in his writ. Witte's current attorney conceded during oral argument that the conduct claimed above does not, "in and of itself," constitute malpractice, but he argued that such conduct, when considered along with Desmarais' other alleged actions, evinces a callous disregard of the plaintiff's emotional state that is itself legal malpractice. We disagree.

Just as law firms are not guarantors of their attorneys' good physical health, lawyers are not guarantors of their clients' good emotional health. While Witte

"had the right to expect that [Desmarais'] representation of him be within the range of competence required of attorneys ..., [i]t is clear ... that the professional skills expected of an attorney are those arising out of legal training and experience, and do not include ... the ability to diagnose the psychological state of a client...."

McLaughlin v. Sullivan, 123 N.H. 335, 340, 461 A.2d 123, 126 (1983). We say this not to solicit anything but the most humane and compassionate behavior from attorneys, but simply to observe that lawyers are trained and hired to perform legal services, not psychological services. Though reprehensible, callous insensitivity does not alone constitute legal malpractice. We therefore hold that the trial court properly granted the defendants' motion to dismiss with regard to this allegation.

We turn to a third allegation, articulated as follows in Witte's brief:

"[Desmarais'] failure to procure formal court approval of his motion for a special marital master to preside over the final hearing in his client's divorce, thus subjecting the client to a hearing in which the presiding officer had no actual authority to hear the case, breached the duty of professional care owed the plaintiff."

As the defendants point out, even if their conduct as alleged above did constitute a breach of duty, Witte cannot prove the essential element of damages. RSA 519:9, governing the appointment of special masters, states that "[t]he superior court with the consent of the parties shall ... commit to one or more referees any cause at law or in equity...." (Emphasis added.) Witte concedes that Desmarais' motion for...

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