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Sternberg v. Lechman-Su

Court of Appeals of Oregon

September 18, 2019

Gayle A. STERNBERG, Plaintiff-Appellant,
v.
Bradley LECHMAN-SU, Defendant-Respondent.

          Submitted September 7, 2018

          Multnomah County Circuit Court 110708916 Marilyn E. Litzenberger, Judge.

          Gayle A. Sternberg fled the briefs pro se.

          Jonathan M. Radmacher and McEwen Gisvold LLP fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case 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.

          [299 Or.App. 451] HADLOCK, P. J.

         This is 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 affirm.

         The 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.

         PROCEDURAL HISTORY

         The 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).

         At a 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.

         Plaintiff 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 jury trial.

         The summary judgment motion was heard by an assigned motion judge on October 12, 2016. That judge denied the motion without comment after also ...


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