No. 53-241 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

R. H. SCHWARTZ CONSTRUCTION SPECIALTIES, INC., 

a Montana corportion, 

Plaintiff and Appellant, 

THOMAS J. HANRAHAN, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable R. C. McDonough, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nye & Meyer; Jerrold L. Nye argued, Billings, Montana 

For Respondent: 

Huntley & Eakin; Ira Eakin argued, Baker, Montana 

---=.---.--- 

Submitted: October 27, 1983 

Decided: December 6, 1983 

Filed: [jC!> ci '$83 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Schwartz Construction filed complaint March 

1983 in the District Court of the Seventh Judicial District, 

Dawson County, alleging legal malpractice by Thomas Hanrahan. 

The complaint was dismissed on May 10, 1983, for failure to 

state a claim upon which relief could be granted. Schwartz 

Construction appeals. 

Schwartz Construction hired Thomas Hanrahan, a 1-icensed, 

practicing attorney, to act as its legal counsel in two suits 

filed against it. According to the malpractice complaint 

filed by Schwartz Construction (which is the only evidence we 

have on the matters), Hanrahan failed to file answers in both 

cases. One suit resulted in a default judgment against 

Schwartz Construction and a subsequent sheriff's sale of some 

of its property. The other suit resulted in execution on 

Schwartz Construction's bank account. Execution on the 

account apparently resulted in the bank stripping Schwartz 

Construction's account of all funds. 

Section 7 of the complaint alleges: 

"7. The failure of the Defendant [Hanrahan] to 

perform even rudimentary legal functions to protect 

his client from the above law suits was negligent, 

wrongful, and failed to comply with the standard.^ 

by which conduct of any attorney are measured. 

These failures were the proximate cause of great 

expense and harm to Plaintiff." 

Further, the complaint seeks $50,000 in actual damages from 

Hanrahan for failure to represent his client and punitive and 

exemplary damages of not less than $250,000. 

Counsel for Hanrahan filed a motion to dismiss on April 

19, 1983, based on Schwartz Construction's failure to allege 

that "'but for the negligence of the attorney' the particular 

result would not have occurred." The motion to dismiss was 

granted for that reason. Schwartz Construction did not 
attempt to amend its complaint, but brought this appeal 

instead. 

Montana's liberal rules of pleading are found in Rule 8, 

M.R.Civ.P. The rules relevant to this proceeding are: 

"Rule 8(a). Claims for relief. A pleading which 

sets forth a claim for relief, whether an original 

claim, counterclaim, cross-claim or third-party 

claim, shall contain (1) a short and plain 

statement of the claim showing that the pleader is 

entitled to relief, and (2) a demand for judgment 

for the relief to which he deems himself entitled. 

Relief in the alternative or of several different 

types may be demanded. 

"Rule 8(e). Pleading to be concise and direct - 

consistency. (1) Each averment of a pleading 

shall be simple, concise, and direct. No technical 

forms of pleading or motion are required." 

Schwartz Construction's claim against Hanrahan is one of 

attorney malpractice, a negligence action. It is axiomatic 

that negligence requires the existence of a duty, a breach of 

that duty and harm caused by that breach. 

The complaint at issue simply and concisely sets forth 

allegations supporting each of those elements: 

(1) Schwartz Construction hired Hanrahan to act as its 

legal counsel. 

(2) While so acting, Hanrahan failed to file answers to 

two complaints filed against Schwartz Construction. 

(3 Those failures resulted in default judgments 

against Schwartz Construction. 

(4) Schwartz Construction suffered $50,000 in actual 

damages because of those judgments and demands relief in at 

least that amount. 

Clearly, the complaint against Hanrahan is sufficient 

under Rule 8, M.R.Civ.P. We therefore reverse the decision 

of the District Court and remand this cause for trial on the 

complaint. 
This decision is limited solely to the determination 

that the complaint filed by Schwartz Construction adequately 

states a claim against Thomas Banrahan for attorney 

malpractice. We leave for another time the substantive issue 

of what type of proof is required in an attorney malpractice 

action. 

Reversed and remanded. 

We concur: 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

I dissent. The order of the District Court dismissing 

the complai.nt here is proper. 

Rule 8 (a), M.R.Civ.P., provides that a claim for relief 

'"hall contain (1) a. short and plain sta-tement of the claim 

showing -- that the pleader - is entitled - to relief . . ." 

One cannot read into plaintiff's claim in this case any 

showing that the plaintiff is entitled - to relief. 

Para-graph 7 of the complaint, upon which the majority 

relies, is so vague and overbroad as to be illusory. An 

examination of paragraph 7 will reveal that nothing in it 

contains facts from which it could be drawn that the 

plaintiff had been improperly sued or that the judgments 

against it were not proper. The allegation that the failures 

of Hanra.han a.s alleged in the comp'l-aint "were the proxima.te 

cause of great expense and harm to the pla.intiffn may include 

the fact that the lawsuits were properly brought, and 

judgments would have resulted regardless of what Hanrahan did 

in the premises. Therefore, the complaint does not show on 

its face that plaintiff "is - entitled - to relief'' in the 

language of Rule 8 (a) , M.R.Civ.P. 

An essential allegation a.gainst an attorney on the 

grounds of ma]-practice is that the malpractice resul-ted in 

actual loss to the client. As the Arizona court said in 

Brosie v. Stockton (1970), 105 Ariz. 574, 468 P.2d 933, 936: 

"The question in the instant case is whether the 

allegation of a representation by the defendant as 

an attorney for both the plaintiff and his former 

wife is of itself an allegation of damage to 

plaintiff. As far as the complaint is concerned, 

it falls short of stating that plaintiff was 

damaged in any way. He alleges the defendant, in 
violation of his obligations to the plaintiff, 

wilfully and intentionally brought suit; however, 

he does not allege that the suit was not a just 

one, nor that he did not owe money to his former 

wife under the property settlement. He does pray 

for damages, but in no place in the complaint does 

he allege damages. The whole theory of his cause 

of action is that the defendant had represented 

both plaintiff and his wife in a divorce case. 

This is not enough to show damage. 

". . . 'Under the new rules of procedure the test 

as to whether a complaint is sufficient to 

withstand a motion to dismiss is whether enough is 

stated therein which, if true, would entitle 

plaintiff to some kind of relief on some 

theory.. . .' 

"In the instant case it does not appear that the 

plaintiff is entitled to relief under any state of 

facts susceptible of proof." 

In the words of Professor Ploore, 2A Moore's Federal 

Practice 8.14 at 8-136 (2d ed. 1982) : 

"True, the courts will go very far in finding a 

basis on which to sustain a pleading as against a 

motion to dismiss for failure to stat-e a claim, but 

good practice demands that the pleader state his 

claim with simplicity and clarity in the first 

instance, rather than set out a jumble of unrelated 

facts and hope that the court will work out his 

case for him. Further, if the pleading is to give 

'fair notice' of the claim, it will normally have 

to be bottomed upon some theory supporting 

recovery." (Footnotes omitted.) 

Professor Moore further points out that in ruling on the 

sufficien.cy of a pleading that is on the borderline, if this 

case can be considered on the borderline, the court should 

consider the following: 

" (1) At what stage of the action is the objection 

raised? 

"(2) Are the prima facie elements of the claim or 

defense stated? 

" (3) If these are stated, is the statement fair 

notice to the adverse party? 

" (4) Is it fea.si.ble to require more 

particularity?" 2A Moore's Federal Practice 9 8.13 

at 8-130, 8-131 (2d ed. 1982) (Footnotes omitted.) 
The pleading here fails test no. 2 in that the prima 

facie elements of the claim against Hanrahan are not stated, 

since it is not shown that the actual loss, if any, sustained 

by the plaintiff is the proximate result of the claimed 

insufficient representation of the attorney. It does not 

meet test no. 3 because the pleading is not a fair notice to 

the adverse attorney, since he is not advised from the 

pleading that he is the cause of actual loss. 

Moreover, in this case it is feasible to require more 

particularity of the plaintiff, either by a more definite 

statement, or by an amendment. 

I hold to the propriety of the theory of the Montana 

Rules of Civil Procedure, identical to that of the Federal 

Rules of Civil Procedure, that pleadings are in effect notice 

to the adverse party of the claim being made. I do not, 

however, throw out the window every necessity for pleading, 

because even under notice pleadings, the opposing party is 

entitled to understand from the pleading the nature of the 

claim against him. This complaint is artfully contrived not 

to allege that there was actual loss arising from the 

attorney's deficiencies, but seems rather intent on 

embarassing him for claimed deficiencies which may not have 

proximately resulted in a loss to the client. 

It is proper under Rule 12(b), M.R.Civ.P., to attack a 

pleading upon the ground that it fails "to state a claim upon 

which relief can be granted. " That is what happened here. 

F-ule 12 (b) may become useless if, as here, mere unrelated, 

vague, overbroad, and illusory statements of damage can be 

held to state a claim. 

When the motion to dismiss was made in this case on the 

ground that the compl-aint was insufficient, the plaintiff did 
not move to amend his pleading so as to make the proper 

allegations. That indicates to me a basic deficiency in 

plaintiff's case; otherwise, a motion for amendment would 

have been simple to make and proper for the District Court to 

grant. I: therefore disagree with the ma-jority and would 

affirm the dismissal by the District Court. 

Justice 

I join in Justice Sheehy's dissent. 

d?!fL Justice ,