Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2012-432

SEPTEMBER TERM, 2013

Donald L. Bletz, Sr. and Bruce Van Guilder } APPEALED FROM:

}

} Superior Court, Rutland Unit,

 v. } Civil Division

}

}

John J. Welch, Jr., Esq. } DOCKET NO. 136-3-11 Rdcv

Trial Judge: Mary Miles Teachout 

In the above-entitled cause, the Clerk will enter:

Donald L. Bletz, Sr. and Bruce Van Guilder, plaintiffs in this legal malpractice action,

appeal from a superior court order granting summary judgment in favor of defendant John J. 

Welch, Jr., Esq. based on plaintiffs’ failure to identify an expert witness to support the claim. 

Plaintiffs contend the trial court erred in failing to apply the recognized exception for negligence 

so apparent that only common knowledge and experience are needed to comprehend it. We 

affirm in part and reverse in part. 

This is the third appeal to reach the Court in this real property dispute. Most of the 

material facts are set forth in the two earlier appeals, Bischoff v. Bletz, 2008 VT 16, 183 Vt. 235 

(Bischoff I) and Bischoff v. Bletz, 2010 VT 49, 188 Vt. 47 (Bischoff II), and may be 

summarized for our purposes here as follows. In 1978, plaintiffs’ predecessors in interest 

conveyed a deeded right of first refusal in two parcels of land to Rodney White. Twenty-five 

years later, in 2003, plaintiffs, who had acquired the properties following the death of their 

predecessors in interest—with no apparent notice to White—agreed to sell the properties to the 

Bischoffs. Bischoff I, 2008 VT 16, ¶ 3. In 2005, the agreements were superseded by two option 

contracts. Id. In April 2006, plaintiffs informed White that they had received “bona fide offers” 

for the properties, and later—after the Bischoffs indicated that they were exercising their 

purchase options—plaintiffs relayed the resulting sales agreements to White. Id. ¶¶ 5-6. White 

responded that he intended to exercise his right of first refusal. Id. ¶ 7.

The Bischoffs then filed a complaint against plaintiffs, alleging breach of contract, breach 

of warranty, misrepresentation, and negligence. Although White was not a named defendant, the 

complaint alleged that his purchase offer was invalid because he had not agreed to pay the same 

price as the Bischoffs. They sought compensatory damages from plaintiffs “for sums expended 

in reliance upon” plaintiffs’ representations, and an order enjoining any sale to White. Id. ¶ 8. 

White was later joined as a necessary party at plaintiff’s request, but no third-party claim was 

made against him. Id. ¶ 10.

The Bischoffs subsequently moved for summary judgment, alleging that White’s right of 

first refusal was invalid. Id. The trial court granted the motion, concluding that White had not 

validly exercised his right of first refusal, and that it had thus “been extinguished by its own 
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terms.” Id. ¶ 12. We reversed, concluding that the Bischoffs lacked standing to seek a 

declaration of White’s rights under his agreement with plaintiffs’ predecessors in interest; they 

were “strangers to the contract between White and [plaintiffs], and as such, they have no right to 

challenge the validity of White’s contractual rights.” Id. ¶ 16. Thereafter, in further proceedings 

on remand, the court upheld White’s right of first refusal, and ruled that he was required to pay 

$31,000 and $215,000 to plaintiffs for the two parcels in question. Bischoff II, 2010 VT 49, ¶ 6. 

White appealed, claiming that he was required to pay only the “net price” to be tendered at 

closing, i.e., the purchase price less the option payments previously made by the Bischoffs, id. 

¶ 7. We disagreed, and affirmed the trial court’s ruling. Id. ¶¶ 9-11.

Plaintiffs subsequently filed this malpractice action against attorney Welch and another 

attorney.1 The complaint alleged that Welch had previously represented plaintiffs’ predecessors 

in interest and had drafted the right-of-first-refusal agreement with White; that Welch later 

represented plaintiffs in executing the purchase and sale agreement and superseding option 

contracts with the Bischoffs; that Welch thus knew or should have known of White’s right of 

first refusal and negligently failed to convey that knowledge to plaintiffs; that plaintiffs, as result, 

entered into the contracts with the Bischoffs under the false belief that their title was “good and 

clear”; and that, as result of Welch’s omission, plaintiffs were subject to litigation for failure to 

honor the deeded right of first refusal. They also assert that Welch was negligent in failing to 

join White as a third-party defendant during the Bischoffs’ initial lawsuit. In addition to 

malpractice, plaintiffs also asserted claims for consumer fraud and breach of fiduciary duty.

Welch moved for summary judgment, asserting that plaintiffs’ failure to identify an 

expert witness to support the malpractice claim was fatal to their case. Plaintiffs opposed the 

motion, asserting that expert testimony was not required to establish the elements of their claim. 

The trial court issued a brief entry order, concluding that expert opinion testimony was 

“necessary to support the claims of deviation from the standard of care and causation against 

Attorney Welch,” and therefore granted the motion. The court denied a subsequent motion for 

reconsideration. This appeal followed. 

As we have explained, “[g]enerally, negligence by professionals is demonstrated using 

expert testimony to: (1) describe the proper standard of skill and care for that profession, (2) 

show that the defendant’s conduct departed from that standard of care, and (3) show that this 

conduct was a proximate cause of plaintiff’s harm.” Estate of Fleming v. Nicholson, 168 Vt. 

495, 497 (1998). We have also recognized that, “[w]here a professional’s lack of care is so 

apparent that only common knowledge and experience are needed to comprehend it, expert 

testimony is not required to assist the trier of fact in finding the elements of negligence.” Id. at

497-98. Plaintiffs here assert that this exception applies, relying on their allegation that Welch 

drafted White’s right of first refusal and did not inform plaintiffs of its existence when they 

entered into the option contracts with the Bischoffs. Plaintiffs analogize to the facts in Estate of 

Fleming, where the defendant attorney failed to inform his client of a title defect, which the 

attorney had discovered prior to the client’s purchase of the subject property. The client 

purchased the property for over $66,000, but was later forced to sell for under $11,000 due to the 

undisclosed defect. Id. at 496. We held that the exception applied, observing that “[t]he issues 

of whether defendant had a duty to disclose the permit violation, whether he breached that duty, 

and whether the breach proximately caused the plaintiff’s injury are not technical issues that 

require the assistance of an expert in order for a trier of fact to be able to comprehend them.” Id. 

 

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 Plaintiffs indicate that they have “resolved matters with” the other attorney.
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at 499. Plaintiffs’ contend that Welch’s negligence in failing to disclose the right of first refusal 

was equally self-evident. 

Although Welch originally disputed the assertion that he drafted the right of refusal, he 

concedes that his authorship “was admitted for the sole purpose of summary judgment,” claiming 

that it is ultimately immaterial. Welch asserts, rather, that the issue is whether “as the attorney 

for the sellers of property, [he] had a legal duty to perform a title search of the property in which 

the plaintiffs intended to sell” in order to discover any cloud on the title, a technical question of 

law and duty plainly requiring expert testimony. We agree with Welch, and with the trial court, 

that if plaintiffs claimed that, as attorney for prospective sellers, Welch had an obligation to 

search the land records to determine whether plaintiffs had clear title to convey, expert testimony 

would be required to support plaintiffs’ claims. The scope of a lawyer’s duties to a client 

preparing to sell property is not a matter within the common knowledge and experience of 

ordinary jurors, and would require expert testimony.

However, we understand plaintiffs to be making a different claim. In particular, they 

assert that this seller’s attorney knew that the property was encumbered by a right of first refusal 

on the basis of his past representation of plaintiffs’ predecessors in interest. Welch’s failure to 

disclose the existence of the right of first refusal while he allegedly assisted plaintiffs in 

negotiating and executing contracts that put them in direct violation of that right of first refusal 

was, plaintiffs allege, a breach of his duty to them. This specific claim, based not on 

assumptions about the general duties of lawyers who represent sellers but, rather, based on the 

unique facts of this case, does not raise technical issues that require the assistance of an expert so 

that ordinary citizens can understand and evaluate the claims. Although Welch may ultimately 

establish that he was not aware of the right of first refusal when he counseled plaintiffs 

concerning these transactions, this question is a matter of disputed fact, and summary judgment 

was thus inappropriate.

Plaintiffs have also suggested that even if he did not, at the time he represented the 

sellers, have any recollection of the existence of the right of first refusal, Welch, nonetheless 

should have known. As counsel acknowledged at oral argument, this allegation rests on 

assertions about the duties of lawyers engaged in real estate practices—claims for which expert 

testimony is required.

In contrast to plaintiffs’ central claim, the allegation that Welch was negligent in failing 

to file a third-party complaint in Bischoff I requires a factfinder to evaluate a lawyer’s trial 

strategy—a technical assessment that in this case requires far more than common knowledge. 

The trial court rightly granted summary judgment on this count. 

Affirmed in part, reversed in part. 
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BY THE COURT:

_______________________________________

John A. Dooley, Associate Justice

_______________________________________

Marilyn S. Skoglund, Associate Justice

_______________________________________

Beth Robinson, Associate Justice