4.10. Reading: Lanham v. Fleenor, 429 P.3d 1231 (Idaho 2018)

Reading Guide

The contours of “proximate cause”: In this case the Idaho Supreme Court addressed an issue of first impression: how do you establish proximate cause when the alleged malpractice is the failure to file an appeal?

Issues:
– What are the elements to establish a legal malpractice claim?
– What element is in dispute?
– Who does the Idaho Supreme Court say is the proper party to determine whether an appeal would have been successful: the judge or the jury? Why?
– The case excerpts the Andrews v. Saylor case from the New Mexico Court of Appeals. Who does that court say should decide the proximate cause element? Why?

Lanham v. Fleenor

429 P.3d 1231 (Idaho 2018)

Opinion

STEGNER, Justice.

Thomas Lanham (Thomas) appeals from the district court’s dismissal of his legal malpractice action against his former attorney, Douglas Fleenor (Fleenor). Fleenor represented Thomas in a will contest regarding the will of Gordon Lanham (Gordon), Thomas’s father. After the magistrate court ruled against Thomas at the summary judgment stage, Fleenor filed an untimely appeal, which was rejected on that basis.

Because the appeal brought by Fleenor was untimely, Thomas brought a legal malpractice action against Fleenor in district court. Thomas alleged that the failure to timely appeal the magistrate’s ruling proximately caused him financial loss because he had a meritorious appeal that he never got to pursue due to Fleenor’s negligence.

The district court dismissed Thomas’s legal malpractice claim at the summary judgment stage. The district court reasoned that a timely appeal by Fleenor would have been unsuccessful on the merits; hence, Thomas did not suffer any injury as a result of Fleenor’s alleged malpractice. Thomas has appealed the district court’s adverse summary judgment ruling.

The crux of this appeal is the interpretation of Gordon’s Last Will and Testament (Will), in which he attempted to disinherit Thomas. The validity of the Will was not contested. However, Thomas contends his father’s Will did not properly dispose of all of Gordon’s property because it did not contain a residuary clause. Thomas maintains these failures should have resulted in various assets passing to him through intestate succession. We affirm the district court’s dismissal of Thomas’s malpractice case.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts in this case are largely undisputed. On November 16, 2010, Gordon began dictating his Will via an audio recording device. Gordon recorded his Will intermittently on nine separate days, concluding on January 7, 2011. On January 19, 2011, the ten dictated paragraphs were transcribed into his written Will. On February 19, 2011, the Will was signed, witnessed, and notarized. Thomas has not contested the validity of the Will.

In his Will, Gordon explicitly limited the inheritance of Thomas and Thomas’s brother Keith Lanham to one dollar and one wooden bed each. The Will mentioned two parcels of real property to which Thomas now claims an interest (collectively the subject properties). The subject properties are a ranch located at 3555 Butte Road, Emmett, Idaho (the Ranch), and a forty-seven acre parcel on Big Creek, in Valley County, Idaho (the Big Creek Property). Although Gordon stated in his Will that he planned on devising (the word Gordon used in the Will was “administering”) “1/2 [of the Big Creek Property] to one person and 1/2 to another,” the Will failed to bequeath the property to any specific devisee. The Will further failed to dispose of the Ranch. It also lacked a residuary clause to direct disposition of property not specifically devised.

Gordon died on December 5, 2013. The Will was filed with the magistrate court for informal probate on December 20, 2013. Judd Lanham (Judd), Gordon’s cousin, was appointed personal representative of Gordon’s estate, as was contemplated in Gordon’s Will. On January 8, 2014, Thomas filed a pro se pleading entitled “Application to Attest [sic] Personal Representative For This Estate” by which he contested the validity of the Will and requested “an order determining intestacy ….”

Thomas later retained Fleenor to challenge certain portions of the Will. Fleenor filed a motion for summary judgment arguing that the Will failed to properly dispose of the residue of Gordon’s estate (including the subject properties); the effect of which would mean any property not specifically devised would pass to Thomas and Keith as Gordon’s intestate heirs. In response, Judd, acting on behalf of Gordon’s estate, filed a cross-motion for summary judgment arguing Thomas’s claim should be dismissed because Gordon’s intent to disinherit his sons was clear and the Will fully and properly disposed of all of Gordon’s property.

On June 10, 2014, at the hearing on the cross-motions for summary judgment, the magistrate orally ruled against Thomas from the bench. On June 20, 2014, Fleenor, on behalf of Thomas, filed a motion asking the magistrate judge to reconsider his earlier oral ruling. On June 25, 2014, the magistrate issued written findings of fact, conclusions of law, and a judgment against Thomas. The magistrate’s written findings did not address the previously filed motion for reconsideration.

Fleenor filed a notice of appeal to the district court on August 13, 2014, forty-nine days after the magistrate’s written judgment was filed. (The time for filing an appeal is forty-two days…) The district court dismissed the appeal as untimely and found that the June 20, 2014 motion to reconsider did not toll the period for appeal, because the magistrate’s written decision was filed after the motion for reconsideration was filed. Fleenor filed a timely appeal of the district court’s dismissal. However, the Court of Appeals affirmed the district court’s dismissal. In doing so, that court found that Thomas’s outstanding motion for reconsideration did not toll the time for filing an appeal and that the magistrate’s judgment presumptively denied the outstanding motion for reconsideration.

As a result of the late filing of the appeal of the magistrate’s adverse ruling, Thomas filed this legal malpractice action against Fleenor on March 17, 2016, in district court.[1] After the filing of cross-motions for summary judgment, the district court ruled that a determination of whether an underlying, unperfected appeal would have been successful, if pursued in a timely way, was a question of law for the court to decide. (An unperfected appeal giving rise to a legal malpractice suit will be referred to in this decision as a “hypothetical appeal.”) The district court also determined that the record was incomplete and denied both parties’ motions regarding the issue of whether the hypothetical appeal would have been successful. As a result, the parties supplemented the record and stipulated that the sole issue for the renewed summary judgment motions was whether Thomas would have prevailed on his hypothetical appeal.

The district court ruled on the renewed motions for summary judgment. In its written decision, the district court determined the Will both disinherited Thomas and unambiguously granted a general power of appointment to Judd, the personal representative of Gordon’s estate. As a result, the district court found that Judd was granted the ability to distribute all property whether or not specifically bequeathed, including the subject properties. The general power of appointment therefore precluded Thomas’s intestate inheritance. Given this finding, the district court determined that Thomas’s untimely appeal would not have succeeded, and Fleenor’s alleged malpractice could not have caused Thomas any injury. The district court then granted summary judgment to Fleenor and dismissed Thomas’s case. Thomas appeals to this Court, seeking to set aside the district court’s granting of summary judgment.

II. STANDARD OF REVIEW

***

III. QUESTIONS PRESENTED ON APPEAL

1. Did the district court correctly determine that the success of a hypothetical appeal is a question of law for the court to determine? …

IV. ANALYSIS

Ordinarily, the elements of a legal malpractice claim against an attorney in Idaho consist of the following:

(1) the existence of an attorney-client relationship that gives rise to a duty of care on the part of the attorney to the client;[2]

(2) an act or omission by the attorney in breach of the duty of care;

(3) the breach of the duty was a proximate cause of damage to the client; and

(4) the fact and extent of the damages alleged.

As in many other torts, the plaintiff bears the burden of proving each of these elements by a preponderance of the evidence.

The critical element in this case involves proximate cause. In order to establish proximate cause, the plaintiff must prove causation which, in natural or probable sequence, produced the claimed injury, loss, or damage and but for that cause, the damage would not have occurred. In addition,

the client seeking recovery from his attorney is faced with the difficult task of proving two cases within a single proceeding. To hold otherwise would permit a jury to find a defendant liable on the basis of speculation and conjecture. Although the “suit within a suit” concept is not universally applicable, it applies where the alleged negligent conduct involves the failure of an attorney to properly pursue an appeal.

Charles Reinhart Co. v. Winiemko, 513 N.W.2d 773, 776 (Mich. 1994) (internal quotation, footnotes, and citations omitted).

A. The success of a hypothetical appeal is a question of law for the court to decide.

Although this Court has decided many legal malpractice cases, it does not appear to have decided one in which the basis for the legal malpractice claim was an unperfected appeal. Consequently, we must decide, as a matter of first impression, if the potential success of a hypothetical appeal is an issue of fact to be decided by a jury, or rather is it a question of law for the court to decide. We conclude, as have twenty-eight other jurisdictions (twenty-seven states and the District of Columbia, 4 RONALD E. MALLEN, LEGAL MALPRACTICE § 33:118 at n.9 (2018 ed.)), that it is a question of law to be decided by the court. We do so for a number of reasons.

As noted, it is the majority rule in the United States. (It is not only the majority rule, there is only one jurisdiction that has determined the issue should be regarded as a factual issue.  Andrews v. Saylor, 80, P.3d 482, 487 (N.M. Ct. App. 2003)). As a result, it is fair to conclude that the majority view constitutes a super majority of those jurisdictions that have decided the issue. See MALLEN, supra.

[Here is the position of the New Mexico Court of Appeals in Andrews v. Saylor (cited above) in holding that the jury, not a judge, is to determine whether an appeal would have been successful:

“With few exceptions, proximate cause is a question of fact to be determined by the factfinder.” Lerma v. State Highway Department, 877 P.2d 1085, 1087-88 (N.M. 1994).

Defendants argue that it would be improper to allow a jury to reconstruct this hypothetical past because, in doing so, the jury must decide the appeal, a task that in an actual appeal is the function of judges. Thus, Defendants ask us to create a legal-malpractice exception to the general rule that proximate cause is a question of fact to be determined by the factfinder.

In a legal malpractice action involving a failure to appeal, proximate cause ultimately reduces to a prediction as to what the outcome of a hypothetical appeal would have been. Significantly, under the preponderance-of-the-evidence standard applicable to legal malpractice actions, complete certainty as to the outcome of the hypothetical appeal is not required: the party bearing the burden of proof need only persuade the jury that the likelihood of a favorable outcome in the hypothetical appeal was greater than even. Unlike an actual appellate decision, the jury’s answer to the question of who more likely than not should have prevailed had an appeal been taken does not change the result in the earlier lawsuit and does not establish binding legal precedent in future lawsuits.

We see no need for treating legal malpractice any differently than other types of professional malpractice. Although a district judge, as a lawyer, will have a general knowledge of the law and likely will have expertise in some areas, no lawyer is presumed to know all the law, much less to be an expert in every area of the law. We are confident that a jury, aided by the testimony of experts versed in the relevant area of the law, is capable of making a prediction as to the outcome of a hypothetical appeal with the degree of certainty required by a preponderance-of-the-evidence standard of proof. We are concerned that our adoption of a special rule that insulates malpracticing lawyers from jury scrutiny of their conduct would give the public the impression that we are simply lawyers protecting other lawyers. … We therefore hold that in a legal malpractice action, the issue of proximate cause is a question of fact for the jury, and this is so even when proximate cause depends upon whether or not an appeal would have been successful.

Andrews v. Saylor, 80, P.3d 482, 487 (N.M. Ct. App. 2003)].

The question of whether the appeal would have succeeded is at its heart inherently a question of law. Determining that the question should be decided by a jury would require a jury to, in effect, sit as an appellate court. A judge is better trained and in a better position to make that decision than is a jury.

Some have criticized the decision to treat the question as one of law as usurping a jury’s fundamental fact-finding function. However, jurors are never tasked with the responsibility of determining legal issues. That function is always performed by the court. See Lubcke v. Boise City/Ada Cnty. Hous. Auth., Worrell, 124 Idaho 450, 464, 860 P.2d 653, 667 (1993). This function, determining the applicable law, is a bedrock of judicial decision-making. As Chief Justice John Marshall wrote in the landmark decision Marbury v. Madison, “[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must necessarily expound and interpret that rule.” 5 U.S. 1 Cranch 137, 177, 2 L.Ed. 60 (1803).

For the reasons articulated, we conclude the trial judge correctly decided that the success or failure of the appeal is a question of law for the trial court to decide. We turn next to the question of whether the trial judge correctly determined that Thomas’s appeal would have failed, as a matter of law, had it been appealed properly.

[The court then goes on to discuss the legal issues that would have been raised on appeal.]

V. CONCLUSION

The judgment of the district court is affirmed. We award Fleenor costs, but not attorney’s fees, on appeal.

---

[1] [footnote 2 in the case]: There appears to be a factual dispute about who was responsible for the untimely appeal.  Fleenor claims that he advised Thomas of the limited time frame in which to file an appeal, but Thomas did not instruct him to file an appeal until August 13, 2014, which was after the deadline for filing had passed.  In contrast, Thomas contends that “[u]pon the Magistrate’s ruling, [he] instructed his attorney, defendant Douglas Fleenor, to appeal the decision.”  Because this case was resolved at summary judgment, the non-moving party, in this case Thomas, is entitled to all reasonable inferences.  As a result, we presume, for purposes of this appeal, that Thomas instructed Fleenor to appeal the magistrate’s decision prior to the expiration of the time for bringing the appeal, and that Fleenor failed to act on Thomas’s instruction.

[2] [footnote 3 in the opinion]:  The existence of an attorney-client relationship is necessary except in very narrow circumstances.  See Harrigfeld v. Hancock, 90 P.3d 884, 889 (2004).