FACTS 

In 2003, OHM hired Wacht to act as managing member of 

OHM and to provide architectural services for the development of real 

property located in Laughlin, Nevada. While executing his duties as 

managing member of CRM, Wacht secured a $5.5 million loan by signing a 

deed of trust against the property, which named the Bank as beneficiary. 

As a result of his work, Wacht also held a mechanic's lien against the 

property. 

Later, Wacht retained Peel & Brimley as counsel to foreclose 

on his $670,846.96 mechanic's lien against CRM and to assert priority in 

interest against the Bank's deed of trust. CRM filed counterclaims 

against Wacht, and the Bank filed a motion for summary judgment, 

arguing that as a matter of law its deed of trust against the property had 

first priority. The district court granted summary judgment, concluding 

that there were no genuine issues of material fact regarding the Bank's 

priority position as first deed of trust holder. Thereafter, the Bank 

foreclosed on its first priority deed of trust, leaving OHM without assets. 

Wacht and OHM agreed that it made no sense for them to 

pursue claims against one another and entered into a settlement 

agreement. 2Pursuant to the settlement agreement, each party's claims 

against the other would be dismissed with prejudice. The agreement 

noted that the dismissal was based upon Wacht's inability to maintain his 

lien against the property, as a result of the Bank's foreclosure. 

2At some point before the settlement agreement between Wacht and 

OHM, Peel & Brimley withdrew as counsel. 

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Consequently, the district court filed an order dismissing Wacht's case 

with prejudice. 

Wacht then filed a legal malpractice claim against Peel & 

Brimley, alleging that their negligent failure to conduct discovery led to 

the district court's decision to award the Bank priority. Wacht contended 

that, after the Bank's foreclosure, he had no alternative but to settle. In 

response, Peel & Brimley filed a motion for summary judgment that the 

district court granted. Wacht now appeals the district court's order 

granting summary judgment. 

DISCUSSION 

This court reviews a district court order granting summary 

judgment de novo. Yeager v. Harrah's Club, Inc., 111 Nev. 830, 833, 897 

P.2d 1093, 1094 (1995). "Where a motion for summary judgment under 

NRCP 56(c) has been granted, the essential question on appeal is whether 

genuine issues of material fact were created by pleadings and proof 

offered." Id. "The nonmoving party is not entitled to build a case on the 

gossamer threads of whimsy, speculation, and conjecture." Wood v. 

Safeway, Inc., 121 Nev. 724, 732, 121 P.3d 1026, 1031 (2005) (internal 

quotations omitted). 

Wacht contends that Peel & Brimley's failure to engage in 

discovery caused the district court to award the Bank's deed of trust 

priority over his mechanic's lien. Wacht further contends that the Bank's 

subsequent foreclosure left CRM without assets and he was thereby forced 

to settle his mechanic's lien claim against CRM. "In Nevada, legal 

malpractice is premised upon an attorney-client relationship, a duty owed 

to the client by the attorney, breach of that duty, and the breach as 

proximate cause of the client's damages." Semenza v. Nev. Med. Liab. Ins. 

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Co., 104 Nev. 666, 667-68, 765 P.2d 184, 185 (1988). "Establishing 

causation . . . requires the plaintiff to prove what has been characterized 

as a 'case within a case,' that is, the plaintiff must demonstrate that the 

claim underlying the malpractice action would have been successful if the 

attorney had acted in accordance with his or her duties." Luttgen v. 

Fischer, 107 P.3d 1152, 1154 (Colo. App. 2005) (citing Bebo Constr. Co. v. 

Mattox & O'Brien, P.C., 990 P.2d 78, 83 (Colo. 1999)). 

We cannot conclude that if Peel & Brimley had participated in 

discovery, Wacht's mechanic's lien action would have been successful. 

First, even if Peel & Brimley had participated in discovery, the Bank's 

deed of trust would have maintained its priority position over Wacht's 

mechanic's lien. Wacht secured the Bank's priority position by signing the 

deed of trust on CRM's behalf, representing that there were no liens with 

priority over the Bank's and that no work had commenced on the property. 

Thus, even if Peel & Brimley had engaged in discovery, the Bank still 

could have foreclosed on its first priority deed of trust, leaving CRM 

without assets from which Wacht could collect. And in that event, it is 

likely that Wacht would have still chosen to settle. Second, 

notwithstanding discovery, Wacht's mechanic's lien claim might have been 

successful, had he maintained it. 3But the parties agreed to completely 

"walk away" from their claims against one another. Thus, it was Wacht's 

settlement agreement that shaped the outcome, not Peel & Brimley's 

failure to engage in discovery. 

3Wacht's argument that it was useless to pursue his mechanic's lien 

claim after the Bank's foreclosure left CRM defunct does not affect the 

outcome here. 

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It is important to distinguish this case from Hewitt v. Allen, 

where we held that, to withstand summary judgment in a litigation 

malpractice action, a client was not required to pursue a fruitless appeal 

in an underlying personal injury action. 118 Nev. 216, 224, 43 P.3d 345, 

350 (2002). In Hewitt, the district court dismissed the client's underlying 

personal injury action because her attorney failed to properly notice a 

required party. Id. at 218-19, 43 P.3d at 346-47. Hence, the client could 

offer evidence in the malpractice action that her attorney was the 

proximate cause of her harm without further litigating the personal injury 

action. Here, however, Wacht cannot offer evidence that Peel & Brimley 

were the proximate cause of his harm because his abandonment of the 

mechanic's lien action was the proximate cause of his harm. Therefore, we 

are not persuaded that Wacht could not have achieved a better outcome in 

the underlying action. 

In addition, although we have not expressly adopted the better 

outcome standard, see Herrington v. Superior Court, we note that sound 

policy favors limiting litigation malpractice claims to cases where evidence 

can be offered to show that a better result would have been achieved "but 

for" the attorney's malpractice. 132 Cal. Rptr. 2d 658, 661 (2003). That is 

not the case here, where "but for" Wacht's election to settle, there may 

have been a better outcome. A conclusion in the alternative would be 

based on speculation or conjecture, whereas, to survive summary 

judgment, Wacht must demonstrate that there are genuine issues of 

material fact in dispute. Here, there are none. 

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J. 

Based on the foregoing, we ORDER the judgment of the 

district court AFFIRMED. 

2Parraguirre 1site‘=traa j. 

Dt77,4-e 

Douglas 

, J. 

cc: Hon. Stefany Miley, District Judge 

Israel Kunin, Settlement Judge 

Joseph Y. Hong 

Lipson Neilson Cole Seltzer & Garin, P.C. 

Eighth District Court Clerk 

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