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Bangs v. Schroth

February 19, 2009

BRENDA BANGS, APPELLANT (PLAINTIFF),
v.
ROBERT E. SCHROTH, APPELLEE (DEFENDANT).



Appeal from the District Court of Teton County The Honorable Dennis L. Sanderson, Judge.

The opinion of the court was delivered by: Golden, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

[¶1] Brenda Bangs, who claims that attorney Robert E. Schroth, Sr., undertook and then mishandled her legal representation by failing to timely commence medical malpractice litigation against two doctors, appeals the district court's grant of summary judgment to Mr. Schroth in her legal malpractice action against him. Because Mr. Schroth has not established a prima facie case entitling him to summary judgment on Ms. Bangs' claims of negligence, breach of fiduciary duty, breach of contract, negligent misrepresentation, fraud, and punitive damages, we reverse the district court's summary judgment on those claims. We dismiss, however, Ms. Bangs' claim of deceit under Wyo. Stat. Ann. § 33-5-114 because it is not legally cognizable under the undisputed facts of the case. W.R.C.P. 12(b)(6).

ISSUES

[¶2] In regard to the district court's summary judgment on all claims except deceit under Wyo. Stat. Ann. § 33-5-114, the dispositive issue is whether Mr. Schroth properly supported his motion for summary judgment as required by W.R.C.P. 56 and our decisions in Rino v. Mead, 2002 WY 144, 55 P.3d 13 (Wyo. 2002); Havens v. Hoffman, 902 P.2d 219 (Wyo. 1995); Roybal v. Bell, 778 P.2d 108 (Wyo. 1989); and Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo. 1987).

[¶3] In regard to the district court's grant of summary judgment to Mr. Schroth on Ms. Bangs' claim of deceit under Wyo. Stat. Ann. § 33-5-114, the dispositive issue is whether, as a matter of statutory interpretation, that statutory provision applies under the facts of this case.

FACTS

[¶4] In the parties' appellate briefs here and their legal memoranda submitted to the district court in connection with the summary judgment proceedings there, they provide the following background information which is helpful to place the issues before us in appropriate context.

[¶5] On or about May 22, 2000, Ms. Bangs employed Dr. Robert Bricca in Jackson, Wyoming, for medical services in connection with her pregnancy which was then at approximately twelve to fourteen weeks. While in Dr. Bricca's care, Ms. Bangs experienced complications and was diagnosed with fulminant ulcerative colitis.*fn1 This medical condition required Ms. Bangs' transfer from Dr. Bricca's care to the LDS Hospital in Salt Lake City, Utah, and the medical care of Dr. Peter Bossart. Because of her medical condition and the ensuing apparent distress of her unborn infant, Ms. Bangs underwent an emergency cesarean section delivery of her twenty-six-week preterm infant before a total colectomy on August 18, 2000. In addition, Ms. Bangs underwent numerous subsequent surgical procedures resulting from her toxic megacolon secondary to chronic ulcerative colitis.

[¶6] Following Ms. Bangs' medical treatment, she contacted Mr. Schroth for legal representation in medical malpractice litigation against Dr. Bricca and Dr. Bossart. Mr. Schroth drafted the complaints against the doctors. Mr. Schroth never filed the complaint against Dr. Bossart, and the statute of limitations ran on that claim. On September 26, 2003, the district court dismissed the claim against Dr. Bricca, which had been filed, because he had not been timely served with the complaint before the statute of limitations ran on that claim.

[¶7] On February 7, 2005, Ms. Bangs filed suit against Mr. Schroth, alleging claims of negligence (Count I), breach of fiduciary duty (Count II), breach of contract (Count III), negligent misrepresentation (Count IV), fraud (Count V), deceit under Wyo. Stat. Ann. § 33-5-114 (County VI), and punitive damages (Count VII). In pertinent part in her complaint, she alleged that in December 2000, she contacted Mr. Schroth to represent her in a medical malpractice case for injuries and medical problems arising out of her pregnancy and the subsequent birth of her child; Mr. Schroth agreed to competently and zealously perform his duties as her legal counsel; an attorney-client relationship existed between Ms. Bangs and Mr. Schroth; and Mr. Schroth told her that his team in San Diego would undertake to review and prosecute her claims against all responsible parties and Mr. Schroth assured her that she had a viable case.

[¶8] On April 27, 2005, Mr. Schroth filed his answer to Ms. Bangs' complaint, generally denying her claims and liability. On November 9, 2005, District Court Judge Nancy J. Guthrie assigned the case to District Court Judge Dennis L. Sanderson, who held a scheduling conference on December 6, 2005, and filed the scheduling order on December 16, 2005. In that scheduling order, the trial judge ordered, among other matters, Ms. Bangs' designation of expert witnesses to be made by March 15, 2006; Mr. Schroth's designation of expert witnesses to be made by May 1, 2006; discovery cut-off to be on October 23, 2006; dispositive motions to be filed on or before September 15, 2006; pre-trial conference to be held on October 23, 2006; and jury trial to commence on November 13, 2006.

[¶9] On December 27, 2005, eleven days after the filing of the district court's scheduling order, Mr. Schroth filed his motion for summary judgment. In support of his motion, he relied on his own affidavit, the affidavits of Dr. Bricca and Dr. Bossart, and a legal memorandum. On December 30, 2005, the district court filed its order setting Mr. Schroth's motion for summary judgment for hearing on February 3, 2006. On January 10, 2006, Ms. Bangs filed several motions, seeking, among other matters, enlargement of time to respond to Mr. Schroth's motion; vacation of the motion hearing on February 3, 2006; supplementation of the record with depositions and affidavits as discovery progressed; and striking of the affidavits of Dr. Bricca and Dr. Bossart because they were self-serving and conclusory. On January 12, 2006, the district court held a hearing on Ms. Bangs' several motions; and on January 13, 2006, the district court filed its order denying those motions.

[¶10] On January 17, 2006, Ms. Bangs filed a legal memorandum in opposition to Mr. Schroth's motion for summary judgment. In support of her opposition to that motion, she attached to her legal memorandum the affidavit of Henry F. Bailey, Jr., an attorney; Ms. Bangs' deposition taken in her failed litigation against Dr. Bricca; Ms. Bangs' affidavit; and District Court Judge Nancy J. Guthrie's order dated September 26, 2003, dismissing Ms. Bangs' litigation against Dr. Bricca. On January 30, 2006, Mr. Schroth filed his reply to Ms. Bangs' opposition to his motion for summary judgment. On February 1, 2006, Ms. Bangs filed Mr. Schroth's deposition which she had taken on January 12, 2006. On February 3, 2006, the district court judge held the hearing on Mr. Schroth's motion for summary judgment.

[¶11] On May 15, 2006, the district court judge filed the order granting Mr. Schroth's motion for summary judgment on Ms. Bangs' claims for negligence (Count I), breach of fiduciary duty (Count II), breach of contract (Count III), fraud (Count V), and punitive damages (Count VII). In regards to Ms. Bangs' claims of negligent misrepresentation (Count IV) and deceit under Wyo. Stat. Ann. § 33-5-114 (Count VI), the district court judge desired "further briefing and consideration of the causal requirements and the quantity of injury, if any," informing the parties that they may submit additional motions and briefs.*fn2 In the district court's order granting summary judgment on these five claims, the district court judge explained his ruling as follows:

Following a review of the pleadings, briefs and supporting materials, and having heard the argument of counsel, the court FINDS:

1. The elements in a legal malpractice case are: (1) the accepted standard of [legal] care or practice, (2) that the [lawyer's] conduct departed from the standard, and (3) that [the lawyer's] conduct was the legal cause of the injuries suffered. Moore v. Lubnau, [855] P.2d 1245 (Wyo. 1993)[.]

2. A fact is material if it establishes or refutes an essential element of a claim or defense. Tidwell v. HOM, Inc. 896 P.2d 1322, 1324 (Wyo. 1995)[.]

3. Defendant has definitively made a showing of undisputed, uncontroverted material fact with respect to element number (3) by refuting . . . "that [the lawyer's] conduct was the legal cause of the injuries suffered." Defendant has produced affidavits negating the viability of the underlying medical malpractice action. Even viewing all of the evidence in the light most favorable to the plaintiff, no material facts which establish the essential element of causation appear in the record before this Court.

4. Plaintiff attached no affidavits of physicians attesting to medical negligence in the underlying medical malpractice case, as required to rebut the Affidavits of Drs. Bricca and Bossart. Plaintiff has not provided the Court with affidavits or other competent evidence which would give rise to a genuine issue of material fact with regard to this element.

5. The mere fact of injury or the occurrence of a bad result, standing alone, is no proof of negligence in the ordinary malpractice action. Harris v. Grizzle, 625 P.2d 747 (Wyo. 1981)[.]

6. It has long been established in Wyoming that a medical malpractice claim in almost all cases, and certainly in a case such as the plaintiff's concerning obstetrical care, a qualified medical expert is essential to establishing a viable claim of medical malpractice. Harris v. Grizzle, Supra.

7. There is no genuine issue of material fact on the subject of legal causation upon which this matter can proceed.

8. Summary judgment should follow upon Counts I, II, III, V and VII of the plaintiff's complaint.

[¶12] On July 24, 2006, Mr. Schroth filed his motion for summary judgment on Ms. Bangs' remaining claims of negligent misrepresentation (Count IV) and deceit under Wyo. Stat. Ann. § 33-5-114 (Count VI), supporting the motion with a legal memorandum and his own affidavit which he had filed in his first motion for summary judgment. On September 5, 2006, Ms. Bangs filed her legal memorandum in opposition to Mr. Schroth's motion, supported by much of the record developed in the first summary judgment proceeding. Mr. Schroth filed his reply legal memorandum on September 19, 2006. On November 16, 2006, the district court judge filed his order granting Mr. Schroth's motion for summary judgment and dismissed Ms. Bangs' complaint with prejudice. Ms. Bangs timely filed her notice of appeal of the district court's orders granting summary judgment to Mr. Schroth.

Summary Judgment Law

A. Procedure

[¶13] In light of the issues in this case, summary judgment procedure is governed by the following language of W.R.C.P. 56(b), (c), and (e):

(b) For defending party. -- A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.

(c) Motion and proceedings thereon. -- . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .

(e) Form of affidavits; further testimony; defense required. -- Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

(Emphasis added.)

B. Case Law under W.R.C.P. 56 (b), (c), and (e)

[¶14] This Court has well-settled case law under W.R.C.P. 56(b), (c), and (e) which is particularly applicable to the issues in this case. In Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo. 1987), a medical malpractice action filed by Ms. Greenwood against a hospital and an obstetrical doctor for injuries she allegedly received under their care in connection with the birth of her child, the hospital moved for summary judgment with supporting affidavits of a nurse and a hospital administrator. The affidavit of the hospital administrator stated:

1. That he is the Executive Director of Memorial Hospital of Sweetwater County, Rock Springs, Wyoming, and makes this Affidavit in behalf of said hospital, a defendant in the above-entitled case.

2. That affiant has examined the records of Memorial Hospital of Sweetwater County as they existed on November 25, 1983, and finds that Dr. J.G. Wierdsma was a physician duly licensed to practice in the State of Wyoming, who had been granted privileges to practice in Memorial Hospital of Sweetwater County, Rock Springs, Wyoming; that there was nothing in said records to indicate that Dr. Wierdsma was not qualified to act as an obstetrician and gynecologist or that he should not be allowed to be the attending physician in childbirth cases.

3. To the contrary, the records reflect that Dr. Wierdsma was a qualified obstetrician-gynecologist who had in the past and was able to provide proper pre and ...


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