Gayle A. STERNBERG, Plaintiff-Appellant,
Bradley LECHMAN-SU, Defendant-Respondent.
Submitted September 7, 2018
Multnomah County Circuit Court 110708916 Marilyn E.
A. Sternberg fled the briefs pro se.
Jonathan M. Radmacher and McEwen Gisvold LLP fled the brief
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: In this legal-malpractice action, plaintiff
challenges an order granting summary judgment to defendant,
who represented plaintiff in a marital dissolution case. In a
previous appeal in the same case, plaintiff successfully
challenged the trial court's dismissal of her claims on
the pleadings, and the Court of Appeals remanded to the trial
court for further proceedings. In this second appeal,
plaintiff argues that the trial court erred in granting
summary judgment on plaintiff's claims after the case was
remanded. Plaintiff also contends that her submission of a
declaration under ORCP 47 E, averring that she had retained
an expert who would establish a genuine issue of material
fact, was sufficient to preclude a grant of summary judgment.
Finally, plaintiff argues that the trial court erred in
awarding attorney fees to defendant because defendant was
insured. Held: Plaintiff did not produce evidence
sufficient to show a genuine factual dispute. Plaintiff was
not entitled to file a declaration under ORCP 47 E, and she
did not produce any other evidence supporting the elements of
her claims. Additionally, in the circumstances present here,
whether a defendant has insurance does not control whether
the defendant is entitled to an award of attorney fees.
Accordingly, the trial court did not err in granting summary
judgment or awarding attorney fees.
Or.App. 451] HADLOCK, P. J.
the second of plaintiffs appeals in her legal-malpractice
litigation against defendant, who represented plaintiff in a
marital dissolution case. In Sternberg v.
Lechman-Su, 271 Or.App. 401, 402, 350 P.3d 593, rev
den, 358 Or. 69 (2015), we addressed the trial
court's dismissal of plaintiffs third amended complaint,
which was based on the trial court's determination that,
to the extent that any of plaintiffs claims stated a claim
for legal malpractice, they were barred by the applicable
limitations period. Id. at 404. We disagreed,
holding that some of plaintiffs specifications of negligence
stated a claim for relief and were not untimely as described
in the complaint. Id. at 407. We therefore reversed
and remanded "for further proceedings on those
specifications." Id. at 402. On remand, the
trial court granted summary judgment to defendant; plaintiff
has again appealed. As explained below, we reject each of the
arguments that plaintiff makes on appeal. Accordingly, we
arguments that plaintiff makes on appeal mostly center around
the propriety of the trial court having granted
defendant's motion for summary judgment on remand after
we issued our opinion in Sternberg. To provide
context for those arguments, we briefly summarize our holding
in Sternberg and the proceedings that led up to the
trial court granting defendant's motion. Most of the
procedural facts that we set out below are undisputed; to the
extent that the parties disagree about procedural facts, we
describe them in keeping with the trial court's rulings.
issue on appeal in Sternberg was whether the trial
court erred when it dismissed plaintiffs third amended
complaint, which included 49 specifications of negligence.
Id. at 407. In Sternberg, we listed certain
specifications, identified by the particular paragraphs of
the third amended complaint in which they appeared, that
"state[d] a claim and at least raise[d] a question of
fact about whether they [were] time barred."
Id. We explained that the other specifications in
plaintiffs third amended complaint "fail[ed] to state a
[299 Or.App. 452] claim, on their face [were] barred by the
statute of limitations, or both." Id.
Accordingly, we reversed and remanded "for further
proceedings on only [the listed] specifications of
negligence" identified, in bullet points, as those that
the trial court should not have dismissed. Id. at
405 (emphasis added).
July 2016 hearing on remand, the court and the parties agreed
on November 7, 2016, as the date for trial. In the interim,
defendant filed an answer and affirmative defenses, and he
also moved for summary judgment against each of plaintiffs
specifications of negligence that had survived our decision
in Sternberg. With respect to each of those
specifications, defendant asserted that he had met the
applicable standard of care and contended that plaintiff
could not establish otherwise. Defendant also argued that
plaintiff could not present a prima facie case that
any act or omission by defendant had caused plaintiff
damages; in addition, he asserted that each of plaintiffs
claims was time-barred. Defendant supported the summary
judgment motion with evidence related to the underlying
dissolution proceeding and defendant's representation of
plaintiff in that case.
filed a response to defendant's summary judgment motion,
but she made no attempt to counter the arguments that
defendant had made with respect to each surviving
specification of negligence. Instead, plaintiff argued
generally that she had a constitutional right to a jury trial
and asserted broadly that any "purported evidence or
claims put forth by Defendant does not reflect the full facts
and truth of this case." Relying on ORCP 47 E, plaintiff
filed a declaration averring that she had "retained a
qualified expert who is available and willing to testify to
admissible facts or opinions creating a question of fact and
who has provided facts which would be a sufficient basis for
denying the Summary Judgment motion." In a reply
memorandum, defendant argued that plaintiffs ORCP 47 E
averment did not suffice to create a genuine issue of fact as
to all of the elements of her malpractice claims. Plaintiff
filed a response to that memorandum. In it, she did not
contest defendant's assertion that her ORCP 47 E averment
was insufficient to create a genuine dispute of fact on all
of the elements of her [299 Or.App. 453] claims. Instead, she
simply reiterated her contention that she had a right to a
summary judgment motion was heard by an assigned motion judge
on October 12, 2016. That judge denied the motion without
comment after also ...