Meller v. Bartlett

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
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                                No. 88-138

Jeffrey B. Meller                                 Supreme Court

     v.                                           On Appeal from
                                                  Chittenden Superior Court
A. Barbara Bartlett
                                                  May Term, 1989


Mathew I. Katz, J.

O'Neill and Crawford, Burlington, and Paul L. Reiber of Abell, Kenlan,
   Schwiebert & Hall, Rutland, for plaintiff-appellee

Thomas J. Donovan, Burlington, and Michael Rose (On the Brief), St.Albans,
   for defendant-appellant


PRESENT:  Peck, Gibson and Morse, JJ.

     PECK, J.  Defendant appeals from a judgment, after a trial by jury, in
favor of plaintiff in an action to recover legal fees.  In the trial court,
defendant claimed that plaintiff had not provided competent representation,
and violated his fiduciary duty by withdrawing as counsel before resolution
of her case.  We affirm.
     Plaintiff first represented defendant's husband, who had been charged
with arson.  Before that charge was dropped, defendant retained plaintiff to
represent her in litigation against the fire insurer.  Defendant asserts
that plaintiff pressured her and her husband to sell real property in South
Burlington at a loss of $20,000 in order to pay his legal fee, and claimed
that plaintiff threatened to abandon defendants' claims if his fee were not
paid.  Defendant also states that when the insurer sued her husband in a
third-party complaint alleging arson, potentially making defendant and her
husband adverse parties, plaintiff "represented Mr. Bartlett's interests
right through to the end of the case," despite the conflict.
     Plaintiff responds that there was no conflict, and that he offered the
Bartletts three different fee arrangements, finally agreeing on a twenty
percent contingency fee with a reduced hourly rate of twenty dollars and a
total cap of $15,000.  According to plaintiff, payments were made to the cap
amount in July of 1984.  Later bills did not indicate amounts actually due.
At one point, when the insurer moved to disqualify plaintiff because he had
previously represented a witness in the case, plaintiff hired another
attorney to handle the motion, which was denied.  Plaintiff claims that a
separate attorney was hired for Mr. Bartlett when the insurer filed its
third-party action, and the Bartletts and this attorney bargained secretly
with the insurer's attorney to settle the case in a way that would reduce or
eliminate plaintiff's fee.  After the case was settled for $150,000, plain-
tiff filed a trustee process against what he claimed was his share of the
settlement amount.  He prevailed in the trial court, and the court directed
a verdict in his favor on defendant's counterclaim.
     Defendant argues that there was sufficient evidence to substantiate her
counterclaim.  When reviewing a trial court's grant of a directed verdict,
we must view the evidence in the light most favorable to the nonmoving
party, excluding any modifying evidence; a directed verdict is not proper
if any evidence fairly and reasonably supports the nonmoving party's claim.
Seewaldt v. Mount Snow, Ltd., 150 Vt. 238, 239, 552 A.2d 1201, 1201-02
(1988).  Nevertheless, we will uphold the trial court where the nonmoving
party has failed to present evidence on an essential element of her case.
Id. at 240, 552 A.2d  at 1202.
     In this case, defendant failed to support her claims through expert
testimony, a prerequisite when professional malpractice or misconduct is in
issue.  Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 313,
449 A.2d 900, 902 (1982).  Expert testimony is not generally required.
"Where the alleged violation of the standard of care is so apparent that it
may be understood by a lay trier of fact without the aid of an expert," an
exception to the rule requiring expert testimony has been established.
Larson v. Candlish, 144 Vt. 499, 502, 480 A.2d 417, 418 (1984).  Here, the
alleged violation is not so apparent.  Hence, the lack of an expert witness
for the defense to give evidence fairly and reasonably supporting defend-
ant's claim leads us to conclude that the trial court's grant of a directed
verdict was proper.
     In Russo v. Griffin, 147 Vt. 20, 24, 510 A.2d 436, 438 (1986), we held
that
          the appropriate standard of care to which a lawyer is
          held in the performance of professional services is
          "that degree of care, skill, diligence and knowledge
          commonly possessed and exercised by a reasonable,
          careful and prudent lawyer in the practice of law in
          this jurisdiction."

    (Quoting Cook, Flanagan & Berst v. Clausing, 73 Wash. 2d 393, 395, 438 P.2d 865, 867 (1968)).  Any measurement of the prevailing standards of conduct in
this case should be established by expert testimony.  Defendant's  claims of
failure to account, conflict of interest, and unauthorized hiring of another
attorney should be judged against professional standards verified by an
expert.  A review of the transcript shows no factual basis in the record for
defendant's other assertions.  Under the circumstances, we find no error.
     Defendant further maintains that the malpractice claim should be
considered as an affirmative defense to plaintiff's contract action.  In
view of our disposition of the counterclaim, we decline to reach the issue.
Defendant's final argument, forfeiture of the fee, was not raised below, and
will not be considered on appeal.  Powers v. Judd, 150 Vt. 290, 292-93, 553 A.2d 139, 141 (1988).
     Affirmed.




                                         FOR THE COURT:



                                         _________________________________
                                         Associate Justice