No. 88-494 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

MARION LORASH , 

Plaintiff and Appellant, 

-vsLARRY D. EPSTEIN, and JAMES C. NELSON, 

d/b/a WERNER, NELSON & EPSTEIN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R.D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sweeney & Healow; Kevin T. Sweeney, Billings, Montana 

For Respondent : 

Floyd D. Corder; Alexander & Raucus, Great Falls, 

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w Submitted on Briefs: Dec. 16, 1988 .- 1 r- -; ic> 

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Decided: January 27, 1989 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Appellant appeals the order of the Ninth Judicial 

District Court, Glacier County, Montana, granting the 

defendant's motion for summary judgment upon finding 

plaintiff presented no material facts proving that the 

defendants committed legal malpractice. We affirm. 

Appellant, Marion Lorash, the owner of a glass business 

in Cut Bank, Montana, entered into a partnership with one 

Chad Standish to operate an auto repair business in Browning, 

Montana. The partners contacted Wilbur Werner, a law partner 

in the firm of Werner, Nelson and Epstein, for the purpose o+ 

drafting a partnership agreement. The partnership agreement 

was prepared and executed in March of 1982. The partners 

constructed a building, in which they intended to operate the 

auto repair business, on land owned by Standish. The 

partnership began using the building for the auto repair 

business in August, 1982. By December, 1982, the partners 

were aware that the business was not going to succeed. They 

discussed ways in which the appellant could protect his 

interest in the partnership. They decided that the best way 

would be for the appellant to file a lien against the 

building and the land on which the building stood. In 

December of 1982 or January of 1983, appellant contacted 

defendant Epstein for the purpose of securing his interest in 

the labor and materials contributed to the building. 

Defendant Epstein agreed to prepare a mechanic's lien which 

would secure plaintiff's interest. Mr. Lorash provided a 

schedule of the labor and materials he supplied for the 

building and a property description. After appellant 

supplied the necessary data, defendant Epstein drafted the 

mechanic's lien which was then filed on March 18, 1983. 

Nothing further happened regarding the mechanic's lien until 
December, 1984, when the appellant was contacted regarding an 

incorrect legal description on the mechanic's lien which 

affected another person's property. Appellant contacted the 

defendant Epstein, who determined from an examination of the 

mechanic's lien statute and conversations with the title 

company manager that there was no problem regarding the 

validity of the lien. This information was communicated to 

the appellant. 

In March or April of 1985, appellant was notified that 

Mr. Standish had filed bankruptcy. Concerned with the effect 

of the bankruptcy on the mechanic's lien, appellant then 

contacted defendant Epstein. After consultation with his 

partner Mr. Nelson, defendant Epstein informed the appellant 

that due to a conflict of interest he was unable to represent 

him in foreclosing the lien. The conflict arose due to 

defendant Nelson's position as the county attorney and Mr. 

Epstein's position as deputy county attorney, and the fact 

the county attorney's office was conductinq an investigation 

in which the appellant was involved. 

The appellant then contacted another attorney in Cut 

Rank to attempt to foreclose the mechanic's lien and protect 

his claim in Mr. Standish's bankruptcy. That attorney was 

unsuccessful in establishing a priority claim based upon the 

mechanic's lien, due to the running of the statute of 

lirnj-tations under Montana law. As a result, appellant was 

only able to establish an unsecured claim in the bankruptc~i. 

action and received nothing when the hankruptcy court 

discharged his claim. 

Appellant then brought this legal malpractice action 

seeking the value of the lien, approximately $24,000, lost 

due to the alleged: (1) negligent withdrawal of counsel from 

representation, and (2) defendants' negligent failure to 

Foreclose the mechanic's lien. 

Defendants filed a motion for summary judgment citing 

five independent and separate grounds for d i smissing the 
action. The District Court, having reviewed the entire file 

and heard oral arguments, held there were no relevant factual 

matters in dispute and that defendants were entitled to 

judgment as a matter of law on both counts. 

Rule 56 (c) , M. R.Civ.P. , provides that summary judgment 

is appropriate when "[tlhe pleadings, depositions, answers to 

interrogatories, 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." Generally negligence issues 

will not he susceptible to summary judgment because of the 

factual issues involved in such cases. See Brohman v. State 

of Montana (Mont. 1988), 749 P.2d 67, 69, 45 St.Rep. 139, 

141, and cases cited therein. In a summary judgment 

proceeding, plaintiffs are entitled to all reasonable 

inferences which may be drawn from the offered proof and 

which indicate any issue of fact which would thereby defeat 

the summary judgment motion. Brown v. Merrill, Lynch, 

Pierce, Fenner and Smith, Inc. (1982), 197 Mont. 1, 640 P.2d 

453. Rowever, an issue of negligence cannot be inferred 

merely from the fact that a loss has occurred. Carlson v. 

Morton (Mont. 1987), 745 P.2d 1133, 44 St.Rep. 1929. To 

establish a professional negligence action "the plaintiff 

must prove that the professional owed him a duty, [and] that 

the professional failed to live up to that duty, thus causing 

damages to the plaintiff." Carlson, 745 P.2d at 1136. 

In pursuing a negligence or breach of contract action 

against an attorney, the plaintiff must initially establish 

the existence of an attorney-client relationship. The 

plaintiff must then establish that the acts constituting the 

negligence or breach of contract occurred, proximately 

causing damages to the plaintiff. The final requirement for 

the plaintiff is the need to establish "[tlhat 'but for' such 

negligence or breach of contract the client would have been 
successful in the prosecution or defense of the action." 

Christy v. Saliterman (Minn. 1970), 179 N.W.2d 288, 293-294. 

A. Duty to Foreclose the Mechanic's Lien 

The plaintiff in the case at bar has simply failed to 

establish an attorney-client re!.ationship which would require 

the defendants to foreclose the mechanic's lien. Montana has 

not recognized the doctrine of continuous representation, 

which may have required the defendants to continue to 

represent plaintiff regarding the mechanic's lien. Schneider 

v. Leaphart (Mont. 1987), 743 P.2d 613, 617, 44 St.Rep. 1699, 

1703. To establish a duty owed to continue to represent the 

plaintiff, the plaintiff would need to show the existence of 

a retainer agreement or a specific agreement between the 

parties that the defendants would foreclose the mechanic's 

lien. We note that neither party cites any specific 

authority on the question of whether or not an attorney who 

drafts a mechanic's lien has a duty to foreclose that lien. 

Appellant claims he had used defendants' law firm for 

various dealings over a period of several years, both before 

and after the mechanic's lien was drawn. However, the 

appellant's deposition states he was not sure he "had call" 

to have an attorney prior to the drafting of the partnership 

agreement. Further, the first time he met defendant Epstein 

on a professional basis was when he contacted him regarding 

the drafting of the mechanic's lien. The appellant stated in 

his deposition he had no further contact with Mr. Epstein 

from the time he signed the lien, until he contacted him 

regarding the error in the property description, in early 

1985. 

Also, appellant's deposition shows a retainer agreement 

did not exist between himself and the law firm. 

Q. The law firm of Werner, Nelson & 

Epstein were not on retainer to you or 

anything; it was just simply when you 
needed work done you called and asked if 

they could do it for you? 

A. Yes. That's correct. 

Even under the continuous representation doctrine, such an on 

and off history of representation would not establish a duty 

on the part of an attorney to monitor the activities of their 

clients. See, Shapero v. Fliegel (1987), 236 Cal.Rptr. 696, 

699. This is particularly so where the attorney had acted as 

a scrivener in preparing documents which a client inferred 

they did not intend to use. 

Q. When you filed this Mechanic's Lien 

did you intend to foreclose on the lien? 

A. As a last resort, yes, I did. 

Q. Why did you wait until March of 1985 

to begin any action on the foreclosure of 

the lien? 

A. Because I didn't want to use--- I 

didn't want that to keep him from being 

able to borrow the money to pay me off. 

Based upon the foregoing deposition testimony which the 

District Court had before it, we find the order granting 

summary judgment was proper. Appellant failed to establish 

the existence of a duty owing by the defendamts to the 

appellant to foreclose the mechanic's lien. 

B. Negligent Withdrawal of Counsel 

Appellant contends that the defendants negligently 

withdrew from their representation of appellant. This 

contention is fatally flawed, however, in light of the fact 

that no representation existed. Appellant asserts that this 

case involved a collection action and that the defendants 

were obligated to pursue the collection action to a 

conclusion once they accepted representation. 7 Arn.Jur.Zd, 

Attorneys at Law, S 211. This contention ignores the fact 

that the appellant himself forestalled the foreclosure of the 

mechanic's lien. Mr. Lorash acknowl-edges he did not intend 
to foreclose the 1.j-en except as a last resort. Further, he 

did not communicate a desire to foreclose the lien until he 

was notified that Mr. Standish was in bankruptcy. As Mr. 

Lorash had been informed of the two year statute of 

limitations which applied to the mechanic's lien, and was the 

party who forestalled its foreclosure, we find the defendants 

did not have a duty to foreclose the mechanic's lien. 

Further, representation had been terminated as to the 

mechanic's lien, pending further action on Mr. Lorash's part, 

and there could not be a negligent withdrawal. 

Having found that no duty existed for the defendants to 

foreclose the mechanic's lien, the parties' arguments whether 

or not the mechanic's lien involved in this case was valid 

and enforceable become moot. 

The decision of the District Court is affifmed. 

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We concur: -17'