IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

BENJAMIN L. BROWN, 

Plaintiff and Appellant, 

-vsFLOYD SMALL and JOHN C. DOUBEK, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gerald J. Neely, Attorney at Law, Billings, Montana 

For Respondent: 

Douglas A. Ruxbaum and Mark Mattioli; Poore, Roth 

and Robinson, Butte, Montana 

Submitted on Briefs: July 25, 1931 

Clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On March 17, 1988, Benjamin Brown filed a legal malpractice 

complaint against Floyd Small and John Doubek in the ~irst Judicial 

District Court in Lewis and Clark County. The ~istrict Court 

granted summary judgment for Small and Doubek and dismissed the 

complaint on October 9, 1990. Brown appeals. We affirm. 

The issues are: 

1. Did the ~istrict Court err when it granted summary 

judgment against Brown on his claim of professional negligence? 

2. Did the District Court err when it granted summary 

judgment against Brown on the portions of his complaint that 

attempted to reopen an earlier lawsuit that Brown had dismissed 

with prejudice? 

In 1981, Brown owned several commercial properties in Helena, 

including the Denver Block Apartment Building. During the early 

morning of May 26, 1981, the Denver Block was badly damaged by 

fire. Brown, who had previously employed Helena attorney Carl 

Hatch, retained Hatch's partners, Floyd Small and John Doubek, to 

assist him in recovering payment from his insurer. For a number of 

reasons, coverage was vigorously disputed. 

Brown settled his claim with the insurer on August 19, 1981, 

for $315,000, and executed a settlement agreement. Claims against 

Brown's recovery by other parties reduced Brown's share to 

$109,963.80. Small and Doubek then charged Brown a contingent fee 

of $25,000. Brown claimed he had not agreed to a contingent fee, 

but he paid the fee despite his objection. 
On March 15, 1984, Brown filed a complaint against Small and 

Doubek, alleging that they had overcharged him for their services. 

In that action, Brown claimed that by charging a contingent fee 

Small and Doubek had breached an oral contract to bill only by the 

hour. During the preparation of their defense in that action, 

Small and Doubek discovered that in 1980 Brown's insurer had issued 

a mid-term endorsement to Brown's fire insurance policy on the 

Denver Block. The 1981 settlement with the insurer did not include 

the additional coverage available under this mid-term endorsement. 

The reasons why this endorsement was not originally considered are 

now disputed by the parties. 

Small and Doubek then arranged for a settlement conference 

with Brown on March 19, 1985. Brown attended with his attorney 

R. J. Sewell, Jr., to whom he had transferred his business after 

leaving Small, Hatch, and Doubek. At this meeting, Doubek 

explained that he had come across Itwork product1' that might result 

in recovering more money from Brownts insurer. Doubek offered to 

use this "work product" on Brown's behalf in exchange for Brown's 

agreement to dismiss his complaint against Small and Doubek. 

Doubek refused to disclose the nature of the "work producttt he had 

discovered. 

Sewell protested vehemently. He took Brown aside and advised 

him that Brown should refuse to accept the offer. Sewell refused 

to sign any such agreement between Brown and his former attorneys 

and left the meeting. 
Doubek had originally suggested that he could recover as much 

as $15,000 with the "work product.I1 Brown, however, insisted that 

he would not agree to dismiss the first lawsuit unless Doubek would 

promise to recover $20,000. Brown then signed an agreement in 

which he gave Small and Doubek four months to recover an additional 

$20,000 from the insurer. In this agreement, Brown specifically 

consented to a contingent fee arrangement. The agreement also 

provided that if Small and Doubek succeeded in recovering $20,000 

from the insurer, Brown would dismiss his first lawsuit with 

prejudice . 

Subsequently, Small and Doubek used the mid-term endorsement 

to recover another $112,500 from the insurer. It appears from the 

record that this amount was based at least in part on Brown's 

allegation that his insurer had fraudulently and in bad faith 

concealed the existence of the mid-term endorsement. Brown further 

alleged that the insurer had misrepresented the available coverage 

as $277,200 instead of the true amount, $325,000. Brown netted 

almost $75,000 after deduction of costs and the contingent fee. On 

August 16, 1985, Brown stipulated to a dismissal of his first 

lawsuit with prejudice. Small and Doubek regarded the matter as 

finally settled. 

Brown then filed the present complaint on March 17, 1988. In 

this second lawsuit, Brown sought (1) damages for the allegedly 

negligent failure of Small and Doubek to discover the mid-term 

endorsement before the 1981 settlement with the insurance company; 

and (2) rescission of the 1985 settlement with Small and Doubek and 
reinstatement of the first lawsuit. The pretrial order clearly 

indicates that Brown was unprepared to present expert testimony on 

the standard of care applicable to Small and Doubek. 

Both parties moved for summary judgment. The District Court 

granted summary judgment for Small and Doubek, noting that the new 

negligence theory was fatally flawed due to Brown's failure to 

arrange for expert testimony and that reinstatement of the first 

lawsuit was barred under the doctrine of res judicata. The court then 

dismissed Brown's complaint. It is from this order of summary 

judgment and dismissal that Brown appeals. 

Did the District Court err in granting summary judgment on 

Brown's claim of professional negligence? 

Brown's position on his negligencetheory is inconsistent with 

the theory his agents used to obtain a second recovery from the 

insurance company. Acting as his attorneys, Small and Doubek filed 

a second action against Brown's insurer. Pertinent portions of the 

complaint in that action read as follows: 

VIII. 

That . . . [the insurer] did not fulfill its clear 

responsibility to [Brown] at the time of said resolution 

of the underlying claim bv not informins rBrownl that the 

said endorsement was in effect when rBrownl submitted his 

proof of loss statement. 

IX. 

That said breach of responsibility was false, 

fraudulent, done in bad faith and for the purpose of 

producins a substantial loss to rBrownl. 
That [Brown] did in fact rely upon the false, 

fraudulent. and bad faith misrewresentations of [the 

insurer] to his detriment and was damaged thereby. 

[Emphasis added.] 

Small and Doubek settled this second action with the insurer for 

$112,500, and Brown accepted his share of almost $75,000 without 

protest. Now, however, he claims that it was the negligence of his 

attorneys, rather than the bad faith of the insurer, that resulted 

in the inadvertent exclusion of the mid-term endorsement from the 

first settlement with the insurance company. If the insurer 

actively concealed the endorsement in bad faith, it is difficult to 

see how Small and Doubek were negligent in not discovering it. 

This attempt by Brown to take inconsistent positions is barred 

by judicial estoppel. In Rowland v. Hies (1986), 223 Mont. 360, 726 

P.2d 310, we said: 

Judicial estoppel may arise when a person 

has taken a position or asserted a fact under 

oath in a judicial proceeding contrary to the 

position he is taking in the present 

litigation . . . The rule's purpose is to 

suppress fraud and prevent abuse of the 

judicial process by deliberate shiftins of 

positions to suit the exigencies of a 

particular action, and it will not be applied 

when the previous act or statement is 

uncertain or based on undetermined facts, but 

only when it is clear and certain. (Citations 

omitted.) [Emphasis added.] 

Rowland, 726 P.2d at 316 (quoting LaChancev. McKown (Tex. Ct. App. 

1983), 649 S.W.2d 658, 660). In Rowland, we applied judicial 

estoppel against a party who sought to take a position contrary to 

an earlier sworn affidavit. Rowland, 726 P.2d at 316. 
Judicial estoppel is equally applicable to a party like Brown 

who seeks to take a position contrary to his pleadings in an 

earlier judicial proceeding. Fey v. AA. Oil Cop. (1955) , 129 Mont . 

300, 323, 285 P.2d 578, 590. The doctrine applies with additional 

force here because Brown's allegation in the second complaint 

against the insurer resulted in a net recovery by him of almost 

$75,000. After accepting the benefits of that allegation, Brown 

cannot now change his position and allege that negligence by Small 

and Doubek was the real reason they did not discover the mid-term 

endorsement sooner. 

Furthermore, Brown failed to alleviate this apparent 

inconsistency by arranging for expert testimony. In Carlson v. Morton 

(1987), 229 Mont. 234, 745 P.2d 1133, we held that expert testimony 

is ordinarily required in legal malpractice cases. We said: 

To expect a jury to sit through hours of examination and 

cross-examination, without the guidance of an attorney's 

expert testimony and then arrive at a verdict consistent 

with the evidence is asking much. This is not because 

the average juror is not capable of understanding such 

matters but only because he or she has never had the 

occasion or desire to study such matters. The attorney's 

standard of care depends upon the skill and care 

ordinarily exercised by attorneys, a criteria that rarely 

falls within the common knowledge of laymen. . . . 

It is true that there are instances in which legal 

malpractice actions have been submitted for fact 

determination without the use of expert testimony. The 

theory in such cases is that the attorney's misconduct is 

so obvious that no reasonable juror could not comprehend 

the lawer's breach of duty. [Emphasis added.] 
Brown attempts to bring his case within the exception rather 

than the general rule by arguing that jurors would not need expert 

assistance in deciding ''whether a lawyer hired to collect insurance 

proceeds ought to look at the piece of paper which says how much 

insurance there is." We note, however, that the "piece of paper" 

to which Brown refers is the very same document he previously 

accused the insurance company of concealing from Small and Doubek 

in bad faith. Based on that inconsistent representation Brown has 

already been compensated. 

In analyzing Brown's argument that the case is too simple to 

require expert testimony, the District Court said: 

The allegations of Count One are very complicated. 

The allegations deal with matters of insurance coverage 

and an attorney's duty to seek out the maximum coverage 

possible for his client for a loss. The allegations also 

deal with the duty owed a former client, since in the 

view of this Court, these parties were not in an 

attorney/client relationship in March 1985. Rather, on 

March 19, 1985, they were engaged in a hotly contested 

lawsuit and it cannot be said that the duty owed by 

Doubek to his former client Brown is one that is commonly 

known by lawyers, let alone by lay people. 

Indeed, the complexity of this matter can be seen by 

looking at page 5 of Plaintiff's supplemental memorandum 

filed on September 14, 1990. At page 5, Plaintiff 

indicates that Doubekls duty was to determine the 

existence, nature, and amount of any midterm endorsement 

to the primary policy issued afte; the primary policy. 

Plaintiff has not directed this Court to any authority 

that shows that this duty is commonly known to lay 

people. 

We agree. In a case such as this one, in which the plaintiff has 

already been compensated based upon an allegation that his insurer 

took affirmative steps to conceal the key document from the 
defendant attorneys, expert testimony on the standard of care is 

critical. 

We hold that the District Court did not err when it granted 

summary judgment against Brown on his professional negligence claim 

on the basis of Brown's failure to provide expert testimony. 

I1 

Did the District Court err when it granted summary judgment 

against Brown on the portions of his complaint that attempted to 

reopen the earlier lawsuit that Brown had dismissed with prejudice? 

In counts two through ten of the complaint in the case at bar, 

Brown sought to set aside the March 1985 settlement agreement and 

the accompanying dismissal with prejudice of the first lawsuit. 

Because Brown cannot resurrect the first lawsuit unless he can show 

grounds to set aside the dismissal, we turn first to the question 

of whether Brown has shown sufficient grounds for setting aside the 

dismissal. We conclude that he has not. 

A party who seeks relief from a final order can either file a 

Rule 60(b) motion for relief or file an independent equitable 

action based on the grounds enumerated in that Rule's residual 

clause. Rule 60(b), M.R.Civ.P. Brown has not filed a Rule 60(b) 

motion so we treat his action as arising under the residual clause. 

See Salway v. Arkava (1985), 215 Mont. 135, 695 P.2d 1302. 

In Salway, we held that the residual clause of Rule 60(b) 

provides one who seeks relief from a judgment with three avenues of 

attack: extrinsic fraud, lack of personal notification, and fraud 
upon the court. Salway, 695 P. 2d at 1305-06. We do not consider 

lack of personal notification here because it is inapplicable. 

In Salway, we characterized extrinsic fraud as "some 

intentional act or conduct by which the prevailing party has 

prevented the unsuccessful party from having a fair submission of 

the controversy." Salway, 695 P.2d at 1306. In this case, Brown 

was not misled by his former attorneys. He acted contrary to the 

advice of his new attorney based on what he perceived to be in his 

best interest at that time. Small and Doubek did not prevent him 

from obtaining a fair submission of the controversy. It was 

Brown's own action in stipulating to the dismissal that resulted in 

the case not being submitted to the District Court. We conclude 

that Brown has not made out a case of extrinsic fraud. 

Fraud upon the court is Itthat species of fraud which does or 

attempts to subvert the integrity of the court itself .It Salway, 695 

P. 2d at 1306. Examples of fraud upon the court include bribery, 

evidence fabrication, and improper attempts to influence the court 

by counsel. SU~WUY, 695 P. 2d at 1306. Generally, fraud between the 

parties, without more, does not rise to the level of fraud upon the 

court. Salway, 695 P.2d at 1306. 

Brown was an active and informed participant in what he now 

seeks to characterize as fraud upon the court. He stipulated to 

the dismissal of his own lawsuit with prejudice despite his 

attorney's advice to the contrary. Brown may have made a bad 

bargain with Small and Doubek but it does not rise to the level of 

10 
a fraud that "subvert[s] the integrity of the court itself .It We 

conclude that Brown has not made out a case of fraud upon the 

court. 

Because Brown has shown neither extrinsic fraud nor fraud upon 

the court, we hold that the District Court did not err when it 

granted summary judgment against Brown on his attempt to set aside 

his dismissal of the first lawsuit. 

The judgment of the District Court is affirmed. 

We concur: