NO. 94-531

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

DANIEL E. MOORE and DOLORES MOORE,

individually, and as husband and wife,

Plaintiffs and Appellants,

-VSDOES 1 TO 25, inclusive, each in their

individual and professional capacities

and each other and with COURT E. BALL,

Esq., individually, as an attorney at

law and in his business relationships

with DOES 1 TO 25, inclusive,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Don Edgar Burris, Attorney at Law, Billings,

Montana

For Respondents:

Peter F. Habein; Crowley, Haughey, Hanson,

Toole & Dietrich, Billings, Montana

Filed:

Submitted on Briefs: April 6, 1995

Decided: May 17, 1995

Cl&k
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Daniel E. Moore and Delores Moore brought this action for

legal malpractice in the District Court for the Thirteenth Judicial

District, Yellowstone County. The court granted defendant Court E.

Ball's motion for summary judgment. The Moores appeal. We affirm.

The issue is whether the court erred in ruling that this

action requires expert testimony and in granting summary judgment

on the basis of the Moores' failure to produce such testimony.

In January 1990, Donna Rostad and her daughters Deborah

Birchell and Kathleen Riter (sellers) agreed in writing to sell the

"Country Pride" restaurant in Big Timber, Montana, to the Moores.

The buy/sell agreement stated "[rlights to the sewer and right of

way as well as the lift station to be transferred to buyers as part

of this sale." The agreement also stated that the buyers and the

sellers were to share the legal costs of drafting the contract, but

[slellers request that their attorney represent them,

draw the closing contract and documents. Buyers may

request review of documents by their own legal counsel if

they so desire.

The sellers asked attorney Court Ball for his services. Ball

prepared various documents incident to the closing, including a

contract of sale.

Ball did not include in the contract of sale the words "rights

to the sewer and right of way as well as the lift station to be

transferred to buyers as part of this sale." Several months after

the contract was executed, another individual represented to the

Moores that he held rights to the sewer and right of way. The
Moores rescinded the contract. They then brought this action

against Ball, alleging legal malpractice.

Following discovery, Ball moved for summary judgment. The

District Court noted that a factual issue existed as to whether an

attorney/client relationship existed between the Moores and Ball.

It concluded, however, that the Moores had failed to provide

necessary expert testimony concerning the standard of care for an

attorney under these circumstances. In so concluding, the court

reasoned that the alleged misconduct by Ball was not so apparent

that a lay juror could understand the issue. The court granted

summary judgment on the basis that the Moores had failed to

establish an issue of material fact as to one element of their

cause of action, breach of an attorney's standard of care.

Did the court err in ruling that this action requires expert

testimony, and in granting summary judgment on the basis of the

Moores' failure to produce such testimony?

This Court's standard of review of an order granting summary

judgment is the same as the standard initially applied by the

district court. Minnie v. City of Roundup (1993), 257 Mont. 429,

431, 849 P.2d 212, 214. The moving party must establish the

absence of genuine issues of material fact in the record, and that

he or she is entitled to judgment as a matter of law. Rule 56(c),

M.R.Civ.P. The non-moving party may not rely upon mere conclusory

or speculative statements to oppose a motion for summary judgment,

but must produce facts of a substantial nature to show a genuine

3
issue of material,fact. Lueck v. United Parcel Service (1993), 258

Mont. 2, 9, 851 P.2d 1041, 1045.

In Lorash v. Epstein (1989), 236 Mont. 21, 767 P.2d 1335, this

Court listed the elements of a legal malpractice claim:

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 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 )I [tlhat 'but for' such negligence or breach of

contract the client would have been successful in the

prosecution or defense of the action."

Lorash, 767 P.2d at 1337. In the present case, the District Court

concluded that the Moores failed to raise an issue of fact as to

the element "acts constituting negligence."

As a general rule, only expert testimony can establish the

standard of care in a legal malpractice case. Carlson v. Morton

(1987), 229 Mont. 234, 240-41, 745 P.2d 1133, 1137-38. The

exception is that no expert witness is needed if "the attorney's

misconduct is so obvious that no reasonable juror could not

comprehend the lawyer's breach of duty." Carlson, 745 P.2d at

1137.

Court Ball submitted the affidavit of attorney James W.

Thompson in support of his motion for summary judgment. Thompson

testified by affidavit that he had reviewed the documents prepared

by Ball and that those documents were in his opinion competently

prepared and effective for their intended purpose. He testified

that in his opinion the contract transferred all rights of the

4
sellers in the sewer line and the lift station serving the

property.

Thompson's expert testimony was the only independent expert

testimony offered in this case. The Moores introduced two

affidavits in connection with the motion for summary judgment.

Neither affidavit addressed the applicable standard of care for an

attorney under these circumstances.

The first affidavit submitted by the Moores was signed by the

individual who claimed an interest in the sewer line. He did not

claim to be an attorney. He set forth his point of view concerning

ownership of the sewer line. The Moores also introduced an

affidavit by their counsel in this action, Don Burris. Burris

opined that "Mr. Ball viewed himself as a scrivener only in the

transaction that is the subject of this lawsuit." Burris's

affidavit was addressed primarily to the question of whether an

attorney/client relationship existed between Ball and the Moores.

The Moores assert to this Court that a segment of the sewer

line located outside of the Country Pride property was subject to

different conveyancing requirements than a segment located on the

Country Pride property, which they now claim was never at issue.

This assertion only buttresses the argument that the standard of

care for an attorney under these circumstances is a matter not

obvious to a lay juror and requiring expert testimony.

The District Court stated, "An attorney's standard of care

involved in drafting a closing contract, specifically with how

fixtures and appurtenances should be conveyed, is complex." We

5
agree. We hold that this case required expert testimony as to the

standard of care for an attorney under the circumstances presented.

The Moores' failure to produce expert testimony that Ball did not

meet the applicable standard of care was fatal to their case.

The Moores also argue to this Court that an attorney/client

relationship existed between them and Ball. The presence of a

question of fact on that element of the action for legal malpractice is irrelevant, because it was not the basis for summary

judgment.

We hold that the District Court did not err in ruling that

this action required expert testimony on the standard of care

required of Ball and in granting summary judgment in his favor

based on the Moores' failure to produce such testimony. Affirmed.

We concur:

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