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Ball v. Birch, Horton, Bittner and Cherot (9/27/2002) sp-5634
Ball v. Birch, Horton, Bittner and Cherot (9/27/2002) sp-5634
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GERALD BALL, ALBERT NEWTON )
BALL, and ALBERT BALL, JR., ) Supreme Court No. S-10015
)
Appellants, ) Superior Court No. 3AN-97-8972
CI
)
v. ) O P I N I O N
)
BIRCH, HORTON, BITTNER AND ) [No. 5634 - September 27,
2002]
CHEROT, a professional corporation, )
and HAL R. HORTON, individually, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: R. Eldridge Hicks, Hicks, Boyd,
Chandler & Falconer, Anchorage, for
Appellants. Patrick B. Gilmore, Atkinson,
Conway & Gagnon, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
A law firms clients sued the firm. They claimed, among
other things, that the firm was negligent in negotiating a
commercial transaction and preparing transactional documents.
The law firm moved for complete summary judgment; it submitted in
support an experts report that addressed only the document-
preparation claim. When the plaintiffs repeatedly failed to
produce expert opinions to oppose the firms summary judgment
motion or support their malpractice claims, the superior court
granted the firm complete summary judgment. We discern no error
as to the document-preparation claim because plaintiffs did not
preserve any genuine factual dispute as to that claim. But as to
all claims the firms expert did not address, we reverse and
remand because the firm did not make out a prima facie showing
that it was entitled to summary judgment as to those claims.
II. FACTS AND PROCEEDINGS
A. The Transaction
Gerald Ball, Albert Newton Ball, and Albert Ball, Jr.
(the Balls) sought to sell their cargo airline businesses and
began negotiations with a prospective purchaser in early 1991.1
The purchaser tendered two $200,000 checks but they were returned
for insufficient funds. The checks return and other
circumstances raised a question about whether to proceed with the
sale or terminate discussions with the would-be buyer. The Balls
retained the Anchorage law firm of Birch, Horton, Bittner, and
Cherot to continue negotiations with the prospective buyer and to
draft documents for the sale of the businesses. Attorney Hal
Horton of that firm was the Balls lead lawyer.
According to their sworn discovery responses they later
provided, two of the Balls had doubts about the deal and had
wanted to end negotiations, but Horton insisted on continuing.
After the transactional documents were executed, the purchaser
defaulted on the first payment and the Balls foreclosed on what
property they could.
B. The Lawsuit
The Balls filed a malpractice complaint against Horton
and the law firm (collectively Birch, Horton or the law firm) in
October 1997. The complaint alleged that Birch, Horton failed to
meet the standard of care of the legal profession . . . in
negotiating the sale [of] the Stock and in drafting the documents
for the sale of the Stock in the Corporations. The complaint
prayed for damages exceeding $5,000,000.
The attorney who filed the Balls malpractice lawsuit
became incapacitated in the summer of 1999 and all of his cases,
including the Balls lawsuit, were referred to trustee counsel for
some months. The original lawyer briefly resumed representing
the Balls in early 2000.
Birch, Horton moved for summary judgment in January
2000 and supported its motion with a May 1999 report prepared by
its expert, Fairbanks attorney Charles E. Cole. Birch, Horton
served the report on the Balls in May 1999, and again served the
report on them with its January 2000 summary judgment motion.2
We discuss the report in Part III.B. The law firm also filed a
separate motion for partial summary judgment on the issue of
punitive damages.
The Balls original litigation lawyer, having resumed
representing the Balls in early January 2000, moved to continue
the trial and extend the time to oppose summary judgment. He
claimed in his supporting memorandum that he had retained a local
attorney to act as the expert in the case, but learned after he
returned to Anchorage that this attorney had discovered a
conflict of interest with the defendant law firm and would no
longer serve as an expert.3 He asked for additional time in
which to engage another expert to respond to the law firms
pending summary judgment motions.
The Balls litigation lawyer then fell ill again; their
present litigation attorney replaced him in early May 2000.
It is undisputed that the Balls failed to comply with a
number of discovery deadlines after they filed suit. Most
important among these were several deadlines for providing expert
reports; at least one of those deadlines had passed before the
law firm moved for summary judgment in January 2000.
At a June 1, 2000 status conference, the court, the
Balls present counsel, and Birch, Hortons defense attorney agreed
that the Balls counsels first priority would be to secure an
expert and obtain an expert report. Birch, Hortons attorney
explained that the January 2000 summary judgment motion was just
filed in desperation to get some sort of response to something,
and just based on the fact that there have been two deadlines
that have come and gone for producing expert reports, and you
cant have an attorney malpractice claim without one. The court
then vacated the July 24, 2000 trial date.
At a July 13, 2000 status conference, the Balls present
attorney acknowledged the importance of providing an expert
report. He represented that he had contacted an expert, a lawyer
in a prominent New York law firm, and that the expert needed more
time to review the file and prepare a report. The Balls attorney
identified the expert by name and asked for at least another
seventy-five days in which to provide the experts report. The
court suggested obtaining in thirty days a more or less summary
report from the expert about the theory supporting the Balls case
and the Balls attorney agreed to do so. The court then imposed
an August 15 deadline for the report. As of mid-July, at least
one trial date had already been vacated and there were seven
unanswered defendants motions, including motions to compel and a
motion to disclose damages.
On August 15 the Balls filed their memorandum
opposition to Birch, Hortons summary judgment motion, but
submitted no report from an expert. The Balls argued that the
Cole report did not justify complete summary judgment because it
only addressed the document-preparation claim and not their other
claims. They also asserted that the claimed negligence was
ascertainable by a jury of ordinary education, obviating the need
for a plaintiffs expert. Alternatively, the Balls claimed that
their delay in producing the experts report had not harmed the
law firm and that they needed thirty more days under Alaska Civil
Rule 56(f) to secure an experts report. They contended that the
following circumstances justified the additional thirty days:
(1) no trial date was then set; (2) the Balls sworn discovery
responses manifest a prima facie case; (3) the Balls lawyer had
exerted a prodigious effort in the past two and a half months;
(4) the Balls lawyer could certify under Rule 11 that the lawsuit
was warranted by existing law; (5) diligent efforts to obtain a
preliminary expert report by August 15 had failed through no
fault of the Balls, their attorney, or the worthiness of the
case; and (6) the law firm had suffered no prejudice because
there was no trial date.
The superior court issued an order on August 22, 2000
setting the trial for April 9, 2001.
In a late August 2000 letter to defense counsel, the
Balls attorney revealed that, as of the July 13, 2000 status
conference, he had not in fact spoken with the New York lawyer
whom he had identified at the July 13, 2000 status conference as
the Balls expert. The same letter revealed that the Balls lawyer
had received a message from the New York attorney on July 21
stating that he felt his law firm did not have the required
expertise. The Balls lawyer also revealed that he had relied on
the representation of the Balls original lawyer that the New York
attorney would serve as an expert, but that current counsel had
not contacted the identified expert until after the July 13
conference. Birch, Horton then supplemented its summary judgment
motion with arguments asserting that the Balls should not be
granted more time, given their failure to produce the identified
expert, the misrepresentations of the Balls counsel, and their
lack of diligence.
By order issued September 20, 2000, the superior court
granted Birch, Hortons summary judgment motion. The superior
court reasoned that an expert opinion was necessary to prove
breach of duty in this case, that the Balls had failed to provide
one after having been given ample opportunity and extension after
extension, and that summary judgment was appropriate because the
firms experts report was uncontradicted. The order also stated:
The plaintiffs failure to comply with this courts orders and the
defendants reasonable requests for compliance precipitates
summary judgment.
In their reconsideration motion, the Balls again argued
that the Cole report was too limited to justify complete summary
judgment because it only addressed the document-preparation
claims and not the negligent negotiation claims alleged in the
Balls sworn interrogatory answers. They also claimed that
summary judgment was inappropriate because they had now obtained
and produced an expert report, because discovery was still open,
and because the trial date of April 2001 was then still six
months away. It appears that the Balls first served their
experts report on September 28, 2000.
The superior court denied the motion for
reconsideration. The denial order set out the limited grounds
for reconsideration and held that the Balls failed to allege
circumstances justifying reconsideration. The order stated that
Mr. Coles opinion address[ed] each and every claim of malpractice
raised by Plaintiffs in their Disclosures, and that plaintiffs
are using the motion to reconsider to seek yet another extension
of time for presentation of additional evidence on the merits.
The court entered final judgment against the Balls and awarded
costs and enhanced attorneys fees against them.
The Balls appeal the grant of summary judgment and the
award of attorneys fees.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo.4 We
affirm a grant of
summary judgment if there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law.5 We
draw all reasonable inferences in favor of the non-movant.6
B. Partial, but Not Complete, Summary Judgment Was
Appropriate.
The Balls argue that the superior court committed two
main errors in entering summary judgment against them: first,
they claim that it erred by reading the report of the law firms
expert to address all of the Balls liability claims rather than
just the claim of negligent document preparation, and second,
they claim that it abused its discretion by dismissing the entire
lawsuit rather than waiting longer for their experts report
because trial was distant and discovery was still open.
The law firm responds that summary judgment was proper
because the Balls had the ultimate burden of proving that the law
firm breached the standard of care, but repeatedly failed to
produce any expert opinion that the law firm breached that
standard. It reasons that because the Balls failed to establish
breach of the standard of professional care by expert opinion, an
essential element of legal malpractice claims,7 the law firm
would have been entitled to summary judgment even had it not
provided its own expert report.
Two competing propositions are at play here. The law
firm relies on the first: professional malpractice plaintiffs
must support their claims with expert opinion evidence of the
standard of care unless the negligence alleged is sufficiently
non-technical to be cognizable by laypersons.8 The Balls rely on
the second: because a party moving for summary judgment must
demonstrate the absence of any genuine issue of material fact as
to all claims, complete summary judgment cannot be entered
against the opponent if the movant only provides evidence
regarding some of the claims.
Notwithstanding the Balls significant delays in
responding to discovery and producing their experts report, we
agree with the Balls and affirm summary judgment only as to those
claims addressed by the law firms expert.
1. Propriety of complete summary judgment
As a general proposition, a defendant is not entitled
to complete summary judgment in Alaska unless it demonstrates as
to each claim against it that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of
law.9 This is the rule even if the defendants motion addresses
an element which is essential to the plaintiffs case and on which
the plaintiff would ultimately bear the burden of proof at trial.10
The expert report Birch, Horton submitted to support
its summary judgment motion addressed only the claim of negligent
document preparation. The report contained this limiting
statement:
I have not been retained to express an
opinion on any involvement Mr. Horton may or
may not have had in the course of
negotiations which led to the execution of
the Stock Purchase and Sale Agreement, dated
October 25, 1991, the First Amendment to
Stock Purchase and Sale Agreement, dated
November 19, 1991, and the related closing
documents other than the light shed on Mr.
Hortons participation in those negotiations
by the documents which he drafted and related
correspondence.[11]
The report expresses the general opinion that the
transaction documents drafted by Mr. Horton were prepared in
conformance with the standard of care applicable to attorneys at
law in Alaska in 1991. The remainder of the report relates to
particular provisions or aspects of the documents Horton
prepared. The report expresses no explicit opinion concerning
claims other than the document-preparation claim, and cannot be
fairly read to contain implicit opinions about any other claims.
The law firm argued in the superior court that the
experts report addressed each of the Balls malpractice claims.12
The order granting summary judgment noted that the law firms
experts testimony is uncontradicted. The order denying
reconsideration rejected the Balls argument that the firm did not
provide evidence addressing their other liability theories, and
stated, Mr. Coles opinion addresses each and every claim of
malpractice raised by Plaintiffs in their Disclosures. But in
fact, the Cole report addressed only the Balls document-
preparation claim. It did not discuss the other liability claims
the Balls had identified in their complaint, discovery responses,
and summary judgment opposition.13 And it did not express a
blanket no-fault opinion that might have encompassed all possible
claims.
Because the report of the law firms expert did not
address all of the grounds on which the Balls claimed the firm
was negligent, the firm did not make out a prima facie showing
for complete summary judgment on all of the Balls claims.14 Under
our standard summary judgment analysis, the Balls would have had
no obligation to demonstrate that a genuine factual issue
existed.15
The law firm argues, however, that the Balls complete
failure to produce expert opinion evidence of any breach of
professional duty makes the scope of the Cole report irrelevant;
it argues that even if it had submitted no report it would have
been entitled to complete summary judgment absent any expert
evidence of malpractice.
The law firm founds its arguments on the proposition
that professional malpractice plaintiffs must support their
claims with expert opinion evidence of the standard of care
unless the negligence alleged is sufficiently non-technical to be
cognizable by laypersons. It cites Kendall v. State, Division
of Corrections and Drake v. Wickwire in support of this general
proposition.16 To support its assertion that the Balls failure to
produce any expert evidence of malpractice warranted complete
summary judgment, the law firm relies on cases from other
jurisdictions discussing summary judgments, including cases
applying the federal summary judgment standard.17 It also relies
on two Alaska cases, Zok v. Collins18 and Gerber v. Juneau
Bartlett Memorial Hospital.19
It is not obvious why a professional malpractice
defendant moving for summary judgment should be relieved of a
summary judgment movants usual threshold duty of making out a
prima facie showing addressing the claims against it. And it is
not obvious why it should be permitted to place on the non-movant
plaintiff the burden of proving elements of the plaintiffs case
at the summary judgment stage if the defendant does not make that
prima facie showing.
But this case does not require us to decide whether a
professional malpractice plaintiff must submit evidence of a
breach of the applicable professional standard of care in order
to avoid summary judgment if the movant does not make out a prima
facie showing that there was no breach. The law firm in this
case did offer expert evidence in an attempt to make out a prima
facie showing of lack of fault. And it argued that its experts
report had refuted each allegation of malpractice. The superior
courts comments in denying reconsideration suggest that it
accepted that argument. Moreover, unfortunate circumstances were
partly responsible for the Balls delay in producing an expert
report. Even though the Balls could not have taken their case to
a jury without expert evidence establishing fault, the
rescheduled trial was not to begin until April 2001, discovery
had not closed, and other pretrial dates had been or would be
rescheduled. Further, absent a prima facie showing that the law
firm did not breach an applicable duty, the Balls discovery
responses, including their July 2000 supplemental interrogatory
answers, provided a factual framework sufficient to demonstrate
to the superior court at the summary judgment stage some six
months before trial that the plaintiffs legal malpractice claims
were not on their face completely without merit. And at this
stage of the proceedings, it was not yet critical that the
plaintiffs had not submitted an expert opinion to support the
liability theories the Cole report did not discuss. The superior
court at this point had less need for an opinion addressing each
theory of legal malpractice than would a jury of non-lawyers at
trial.
No Alaska case compels a different result. Gerber and
Kendall were medical malpractice cases in which expert advisory
panel reports provided affirmative expert evidence that there was
no professional breach.20 The plaintiffs in both cases failed to
offer opposing expert evidence.21 They therefore failed to rebut
the movants prima facie showings.22 In Zok v. Collins the legal
malpractice plaintiff did not designate experts to testify at
trial.23 After the deadlines had passed for listing witnesses,
disclosing experts and their opinions, and completing discovery,
the defendant moved for summary judgment and argued that the
plaintiff would be unable to prove the elements of his
malpractice claims requiring expert testimony. Moreover, the
superior court there found that the plaintiff had made a
strategic decision not to hire experts. In comparison, here new
pretrial dates had been or were to be set and the Balls
consistently expressed an intention to offer opinion evidence
supporting their claims.
The law firm has identified no viable alternative
ground for affirming the complete summary judgment. It does not
argue that the summary judgment can be justified as a sanction.
The superior court did not rely on a sanction rationale and did
not make, even implicitly, findings that would have permitted a
litigation-ending sanction.24 Finding vexatious delays and
misrepresentations regarding the availability of expert
testimony, the superior court awarded the law firm enhanced
attorneys fees. But these findings would not have justified
litigation-ending sanctions. And, given disputes about the
extent to which the plaintiffs earlier discovery and disclosure
deficiencies were attributable in part to their incapacitated
counsel, we cannot find willfulness as a matter of law on this
record.
Summary judgment should not have been granted as to
liability claims not addressed in the Cole report. It was
therefore error to grant complete summary judgment.
2. Propriety of partial summary judgment
Because the law firm supported its summary judgment
motion with expert opinion evidence that there was no merit to
the Balls document-preparation theory, in order to avoid partial
summary judgment the Balls had to demonstrate either the
existence of a genuine, material fact dispute,25 or their need for
more time to oppose the motion.26 The Balls, however, did not
show that there were genuine fact disputes inherently rebutting
the detailed opinions expressed in the Cole report. They did not
offer evidence creating any factual dispute about the assumptions
underlying Coles opinions. And they did not rebut his opinions
with contrary expert opinions.
Legal malpractice plaintiffs in Alaska must support
their claims with expert opinion evidence unless the negligence
alleged is sufficiently non-technical to be cognizable by
laypersons.27 The Balls malpractice claims were not sufficiently
non-technical to be evident to laypersons. The interrogatory
answers signed by Gerald Ball, a layperson, were not sufficient
to create a genuine fact dispute for purposes of rebutting an
expert opinion clearly expressed on a topic which required expert
evidence.28 The Balls failure to offer expert opinion evidence
responding to the Cole opinions is therefore fatal to the claim
of negligent document preparation, unless, as they also argue, it
was an abuse of discretion to grant summary judgment given a
distant trial date and open discovery.
The Balls appellate briefs do not cite or rely on Civil
Rule 56(f), although the Balls requested a thirty-day continuance
under that rule in the superior court for the purpose of
obtaining an expert report to support their claims and rebut the
Cole report. We have held that requests made under Rule 56(f)
should be granted freely because Rule 56(f) provides a safeguard
against premature grants of summary judgment.29 We review for
abuse of discretion the denial of a motion for a Civil Rule 56(f)
continuance.30 But the Balls do not claim that the court denied
any requested continuance. They argue instead that it should
have waited longer for their experts opinion.
The record does not justify a conclusion that the
superior court abused its discretion by not waiting longer.
Notwithstanding the impediments and delay caused by the
incapacity of their first litigation attorney, the Balls had
adequate time to obtain expert opinions to rebut the opinions in
the Cole report. That report was first served on the Balls in
May 1999, and was served again in January 2000 with the summary
judgment motion. The Balls successor counsel recognized the
importance of obtaining an expert opinion supporting the Balls
claims, and the weight the superior court placed on producing
such a report. On June 1, 2000 the Balls lawyer told the
superior court he needed thirty or forty-five days, and the court
responded that forty-five days is reasonable, but warned counsel
that I need to tell you that Im going to hold you to that. At
the July 13, 2000 hearing, shortly before the forty-five day
period was to expire, the Balls lawyer represented, among other
things, that he had conferred with the New York attorney and the
court ordered counsel to produce the expert report by August 15.
On August 15 the Balls did not produce a report as
ordered; instead, their August 15 memorandum moved under Civil
Rule 56(f) for an additional thirty days in which to obtain a
report. At an August 22 hearing, their attorney announced that a
new expert had been engaged who would provide a report within two
or three weeks, i.e., by the end of the second week of September.
At the same hearing, defense counsel correctly informed the
superior court that the summary judgment motion was ripe and that
the Balls had not requested oral argument; the court stated that
it would turn it over to a law clerk. The superior court did not
expressly grant or deny the Balls thirty-day request or approve
the Balls plan to submit the report the second week of September.
But it did not enter summary judgment against the Balls until
September 20, 2000, about a week after the requested thirty-day
continuance would have expired. The Balls did not submit an
experts report until they moved for reconsideration on September
28.
Before the court granted summary judgment, the Balls
had repeatedly missed deadlines for producing their experts
report. The reasons the Balls gave for missing those deadlines
were not so compelling that the court was obliged to accept them.
And when they moved for reconsideration, the Balls offered
absolutely no explanation for why they had not submitted the
experts report within the thirty-day extension they had requested
or before the court entered summary judgment.
It would defeat the utility of summary judgment to
permit a non-movant to delay indefinitely submitting evidence
rebutting the movants prima facie showing. The Balls do not
specify how much more time they should have been given, but the
court did not rule until after the time they last requested had
expired. Their failure to seek additional time before the court
ruled precludes a claim that the court sua sponte should have
given them more time than they had asked for or should have
delayed ruling on the ripe summary judgment motion for some
unknown period.31
We also reject any argument that the court should have
accepted the report of the Balls expert and denied even partial
summary judgment. The Balls first submitted the report with
their motion for reconsideration. Materials and arguments
submitted for the first time on reconsideration may not be used
to establish that the original ruling was in error.32
Partial summary judgment was appropriate because the
law firm made out a prima facie showing of entitlement to summary
judgment on the liability claim addressed in its experts report.
We therefore remand for entry of partial summary judgment as to
those negligence claims covered by the law firms experts report.
C. Enhanced Attorneys Fees Award
The superior court awarded the law firm attorneys fees
of $75,841 fifty percent of its incurred defense fees. The
order stated that [t]he fee is enhanced due to vexatious delays
and misrepresentations to the court and defense counsel
concerning expert testimony availability. The Balls argue that
it was error to award enhanced fees.
Alaska Civil Rule 82(b)(3) permits enhanced fee awards
under some circumstances, but it is unnecessary to decide whether
it was error to enhance the award here. Because the law firm was
not entitled to complete summary judgment and because we remand
for further proceedings, we vacate the attorneys fees award. We
vacate the costs award for the same reason.
IV. CONCLUSION
Because defendants only made out a prima facie showing
supporting partial summary judgment, we REVERSE the judgment,
VACATE the awards of attorneys fees and costs, and REMAND for
further proceedings, including entry of partial summary judgment
as to the claims addressed in the report of the law firms expert.
_______________________________
1 With respect to the facts of the underlying dispute, we
draw permissible factual inferences in favor of the Balls, the
opponents of the summary judgment motion. See Zok v. Collins, 18
P.3d 39, 40 n.2 (Alaska 2001) (citation omitted); Moore v.
Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000) (citation
omitted). These circumstances are described only for the purposes
of resolving the legal issues before us. We do not intend to
foreclose the parties from fully litigating genuine factual
disputes on remand.
2 The report was not originally prepared in the form of
an affidavit, but the law firm eventually submitted it in sworn
form.
3 A dispute arose about whether this local attorney had
ever been retained as an expert in this case. He testified at
his February 2000 deposition that he had never actually been
retained as an expert. The Balls original attorney filed a
declaration asserting that the local attorney had agreed to be an
expert in the case. The superior court found, in denying the
Balls motion to reconsider the grant of summary judgment, that
this local attorney had never been engaged as an expert, had
never agreed to be an expert, had never agreed to prepare a
report, and had never been informed of the deadlines for expert
reports.
4 Arctic Tug & Barge, Inc. v. Raleigh, Schwartz & Powell,
956 P.2d 1199, 1200 (Alaska 1998).
5 Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska
2000).
6 Id.
7 See Drake v. Wickwire, 795 P.2d 195, 197 (Alaska 1990).
8 See Kendall v. State, Div. of Corrs., 692 P.2d 953, 955
(Alaska 1984) (requiring expert testimony to establish standard
of care in medical malpractice cases when negligence not evident
to laypersons); see also Drake, 795 P.2d at 197 (extending
Kendall rule to legal malpractice cases).
9 Alaska R. Civ. P. 56(c); Concerned Citizens of S. Kenai
Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 450 (Alaska
1974).
10 Trombley v. Starr-Wood Cardiac Group, PC, 3 P.3d 916,
924 (Alaska 2000); Shade v. Co & Anglo Alaska Serv. Corp., 901
P.2d 434, 437-38 (Alaska 1995).
11 The expert apparently assumed that nothing other than
document preparation was relevant to the Balls claims. He had
received a copy of a letter from attorney Horton to one of the
plaintiffs, saying that the defendants had primary responsibility
for preparing documents, creating debt and collateral
instruments, and handling the stock transfer, and inferred from
this letter that Hortons responsibilities did not include
negotiation.
12 The law firms summary judgment memorandum asserted that
its expert ha[d] opined that Defendants were not negligent in
their representation of Plaintiffs, and implied that the Cole
report fully rebutted any claim that the defendants were liable.
Its August 2000 reply memorandum asserted that the Cole report
address[ed] and refute[d] each allegation of malpractice in
Plaintiffs Disclosures.
13 The Balls 1997 complaint alleged that the law firm had
a duty of due care to negotiate the sale of the Stock in the
Corporations and to draft the documents of sale and closing for
the sale of Stock in the Corporations consistent with [the]
standard of care applicable to attorneys in Anchorage at the
time. It also alleged that the breach of that duty in
negotiating the sale and preparing the documents harmed the
Balls.
The Balls April 1998 disclosures asserted that
[d]efendants failed to meet the standard of care of the legal
profession to which they were obligated under the contract with
the Plaintiffs in negotiating the sale [of] the Stock and in
drafting the documents for the sale of the Stock in the
Corporations. Their July 2000 supplemental interrogatory
answers, signed under oath by Gerald Ball, alleged, among other
things, negligent negotiation as well as negligent document
preparation. The court never ordered those responses struck as
untimely, nor did the law firm ask the court to do so. The Balls
served their supplemental interrogatory answers after the trial
date was vacated and before a new trial date was set and a month
before the law firm filed its reply memorandum supporting its
summary judgment motion.
The Balls August 15, 2000 opposition to the summary
judgment motion argued that the report of the law firms expert
did not encompass the Balls other liability theories and
summarized those theories in some detail.
14 Philbin v. Matanuska-Susitna Borough, 991 P.2d 1263,
1265 (Alaska 1999) (holding movant bears initial burden of
proving through admissible evidence (1) absence of genuine fact
disputes, and (2) its entitlement to judgment as matter of law).
See also Alaska Travel Specialists, Inc. v. First Natl Bank of
Anchorage, 919 P.2d 759, 762 (Alaska 1996) (quoting Shade v. Co &
Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995) (The
non-moving party need not demonstrate the existence of a genuine
issue until the moving party makes a prima facie showing of its
entitlement to judgment on established facts. )).
15 Shade, 901 P.2d at 437 (citations omitted).
16 See Drake v. Wickwire, 795 P.2d 195, 197 (Alaska 1990);
Kendall v. State, Div. of Corrs., 692 P.2d 953, 955 (Alaska
1984).
17 See Celotex Corp. v. Catrett, 477 U.S. 317 (1986);
Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311 (9th Cir.
1995).
18 18 P.3d 39 (Alaska 2001).
19 2 P.3d 74 (Alaska 2000).
20 Gerber, 2 P.3d at 75; Kendall, 692 P.2d at 954.
21 Gerber, 2 P.3d at 75; Kendall, 692 P.2d at 955.
22 Gerber, 2 P.3d at 78; Kendall, 692 P.2d at 955.
23 Zok, 18 P.3d at 41.
24 See Alaska R. Civ. P. 37(b)(2) (addressing sanctions
for discovery violations); see also Hikita v. Nichiro Gyogyo
Kaisha, Ltd., 12 P.3d 1169, 1176 (Alaska 2001) ([A] trial court
may not issue litigation-ending sanctions without first exploring
possible and meaningful alternatives to dismissal.) (internal
quotation marks and citation omitted).
At a minimum, no litigation-ending sanction would have
been justified without a finding of willfulness. Underwriters at
Lloyds London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993).
25 See Alaska R. Civ. P. 56(c); see also Yurioff v. Am.
Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990); Howarth v.
First Natl Bank of Anchorage, 540 P.2d 486, 489-90 (Alaska 1975).
26 Alaska Rule of Civil Procedure 56(f) provides:
Should it appear from the affidavits of a
party opposing the motion that the party
cannot for reasons stated present by
affidavit facts essential to justify the
partys opposition, the court may refuse the
application for judgment or may order a
continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had or may make such other
order as is just.
27 Kendall, 692 P.2d at 955 (applying rule in medical
malpractice case and affirming defendants summary judgment
because Kendall did not carry her burden by presenting expert
testimony rebutting defendants showing that there was no genuine
issue as to negligence). Similarly, in Kaiser v. Sakata, 40 P.3d
800, 805 (Alaska 2002), we held that summary judgment was
appropriate in a medical malpractice case when a pro se plaintiff
failed to produce countervailing expert testimony in response to
defense expert evidence in support of summary judgment. In
Drake, 795 P.2d at 197-98, we agreed with the superior courts
conclusion that expert testimony was required to prove that a
lawyer had breached the professional standard of care, but held
the lawyer was negligent as a matter of law. In Bohna v. Hughes,
Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 761 (Alaska
1990), we reiterated our statement in Drake that a legal
malpractice plaintiff must offer expert testimony to show a
breach of an attorneys duty of care unless the negligence is
sufficiently non-technical to be evident to laypersons. In Zok,
18 P.3d at 42-43, we affirmed in part summary judgment for the
defendant attorney because his former client did not support his
claim with an experts opinion; we reversed the summary judgment
as to those claims not requiring expert testimony, such as claims
alleging failure to oppose motions.
28 See Zok, 18 P.3d at 42-43.
29 Gamble v. Northstore Pship, 907 P.2d 477, 485 (Alaska
1995) (citations omitted).
30 Kessey v. Frontier Lodge, Inc., 42 P.3d 1060, 1062
(Alaska 2002).
31 See D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001)
(holding no plain error for superior court failing to sua sponte
extend deadline for response to summary judgment motion when non-
movant was adequately represented by counsel and did not request
extension or argue how he would have used extension); State, Dept
of Revenue v. Mitchell, 930 P.2d 1284, 1288 (Alaska 1997)
(quoting Burford v. State, 515 P.2d 382, 383 (Alaska 1973))
(holding not plain error superior courts failure to raise waiver
issue sua sponte because alleged error did not affect substantive
rights and was not obviously prejudicial).
32 Alaska R. Civ. P. 77(k); Stadnicky v. Southpark Terrace
Homeowners Assn, 939 P.2d 403, 405 (Alaska 1997).
