and submitted March 3, 2016
County Circuit Court C135194CV
Michele C. Rini, Judge pro tempore.
W. Kelly argued the cause and fled the brief for appellant.
Kathryn Mary Pratt argued the cause and fled the briefs for
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
appeals from the trial court's order granting summary
judgment to defendant on plaintiff's claims for
negligence and breach of contract. Plaintiff, on behalf of
himself and as a representative of a corporation, sought
legal advice from defendant regarding an arbitration.
Defendant agreed to representation. After the arbitration
panel issued an award that held plaintiff personally liable,
plaintiff asked defendant to correct what he believed to be
an error. Defendant refused, indicating that he represented
only the corporation, not plaintiff. In response, plaintiff
fled the current complaint. Defendant moved for summary
judgment, arguing that there were no genuine issues of
material fact and that defendant did not owe plaintiff any
duty of care during the arbitration proceedings because
defendant and plaintiff did not have an attorney-client
relationship at that time. The trial court granted
defendant's motion for summary judgment, stating that
plaintiff needed an expert to show that defendant breached
the standard of care. On appeal, plaintiff assigns error to
that grant of summary judgment. Held: The trial
court erred when it granted summary judgment to defendant.
Defendant failed to show the absence of a genuine issue of
material fact regarding the existence of an attorney-client
relationship between defendant and plaintiff during the
arbitration proceedings. Further, the
Or. 698] standard of care was not raised in defendant's
motion for summary judgment such that plaintiff would have
been required to produce evidence on that issue.
Or. 699]ORTEGA, P. J.
Jens Jensen filed a complaint against defendants John Andon
and the Hillsboro Law Group that included claims for
negligence and breach of contract arising out of their
representation of plaintiff in a legal matter.Defendant moved
for summary judgment on both claims and prevailed. We
conclude that material issues of fact exist as to the limited
issues that were fairly raised by defendant's motion, and
consequently reverse and remand.
recount the facts from the summary judgment record,
"viewing the facts and all reasonable inferences that
may be drawn from them in the light most favorable to
plaintiff, as the nonmoving party." Lahn v.
Vaisbort, 276 Or.App. 468, 470, 369 P.3d 85 (2016)
(internal quotation marks omitted). Plaintiff is the
president of Durst-Pro-USA (DPU). DPU had an agreement for
legal services with Bullivant Houser Bailey (Bullivant),
which ultimately devolved into an attorney-fee dispute. In
its effort to resolve that dispute, Bullivant sent a letter
addressed to DPU and plaintiff requesting arbitration before
the Oregon State Bar (OSB). Plaintiff, in response, sought
legal advice from defendant, both personally and in
plaintiff's capacity as a representative of DPU. When
plaintiff met with defendant, he told defendant that his goal
was to be separated from the demand for arbitration, as he
did not believe he should be part of Bullivant's fee
dispute with DPU. Defendant advised plaintiff that, to
extricate himself from arbitration, all he had to do was to
decline his consent to arbitration and inform OSB and
Bullivant that he was not a party to the claim. Plaintiff, it
appears, did just that. As to DPU, defendant advised that it
should consent to arbitration. DPU did so and was represented
by defendant at the arbitration hearing.
Or. 700] In an email confirming representation, defendant
wrote that he was "willing to represent Jens
Jensen/Durst Pro USA in the fee dispute matter with
[Bullivant], " and the written fee agreements listed
"Jens Jensen" as the client. The record also
contains bills directed to Jens Jensen for "Jensen -
appeared as a witness for DPU at the arbitration, with the
understanding that he was not a party to the proceedings.
Nevertheless, following the hearing, the arbitration panel
issued a joint award against DPU and plaintiff. Realizing that
the award held him personally liable, plaintiff asked
defendant to correct what he believed to be an error.
Defendant refused, indicating that he represented only DPU,
not plaintiff. Plaintiff then hired a different attorney to
assist him in vacating the award against him, though it
appears that those efforts ultimately were unsuccessful.
acting pro se, then filed a complaint against
defendant for negligence (legal malpractice) and breach of
contract. As to his negligence claim, plaintiff
alleged that defendant had "acted unprofessionally,
incompetently and negligently" and listed specific ways
in which defendant had failed to represent him at the
arbitration and in his communications with OSB. That is,
plaintiff listed things that, in his view, defendant should
have done to help him but did not, such as informing
plaintiff that he would be appearing pro se at the
arbitration hearing and alerting the arbitration panel that
plaintiff was making a special appearance at the hearing.
Further, plaintiff alleged:
"After having been made aware of having been falsely
convicted plaintiff * * * requested that defendant attempt to
remedy what happened to plaintiff to be an error. [Defendant]
[287 Or. 701]"Defendants refused to act or take action
on behalf of plaintiff. "
After first agreeing to represent plaintiff and subsequently
agreeing to represent DPU defendants did not discuss with
plaintiff any potential conflicts that could arise by
representing DPU and plaintiff simultaneously.
"Defendants issued all billing and all invoices for all
work performed for both DPU and plaintiff to plaintiff.
"[Defendant] failed [p]laintiff when he assured
[p]lain-tiff that no other actions than not signing the
Agreement to Arbitrate and informing [t]he Oregon State Bar,
and [Bullivant], that [p]laintiff was not a party to the
claim, was sufficient actions to sever [p]laintiff from the
"[Defendant] did not inform the arbitrations panel that
[p]laintiff was not part[y] to the agreement between DPU ...