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Rivers v. Moore

July 28, 2010


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 KITE, C.J.*fn1, GOLDEN, HILL, and BURKE, JJ., and KAUTZ, D.J.

[¶1] Franklin M. Rivers, Jr., M.D., (Rivers) filed a complaint against the law firm of Moore, Myers & Garland, LLC, (the Firm) alleging legal malpractice in the Firm's representation of him in his purchase of property on which he planned to construct a medical office building. Among the damages Rivers alleged were "expectancy" damages, the difference between the value of the larger building Rivers planned to build and the smaller building he was ultimately permitted to build under the property's restrictive covenants. Rivers appeals the district court's entry of summary judgment against him on his claim that the Firm's breach of its duty to competently represent him was the proximate cause of the alleged expectancy damages. We affirm.


[¶2] Rivers presents the following issues on appeal:

1. Is Summary Judgment on Client's legal malpractice claim proper where Law Firm failed to support its Motion for Summary Judgment with any legally sufficient affidavits or testimony from any of its designated expert witnesses?

2. Do genuine issues of material facts exist as to the element of causation on Client's legal malpractice claim which would preclude summary judgment?

3. Do genuine issues of material facts exist as to whether Client has the right to recover damages for his expectancy interest?

4. Do genuine issues of material facts exist as to whether Client has the right to recover damages under the loss of chance doctrine?


[¶3] Rivers is a medical doctor who in 2004 was practicing emergency and family medicine in Jackson, Wyoming. In December 2004, Rivers authorized a business acquaintance, G. Anthony Morse (Morse), to locate and negotiate the purchase of property on which Rivers could build a medical office building. In late January 2005, Rivers asked Joseph F. Moore, Jr., who had both a personal and professional relationship with Rivers, to provide legal advice on the property acquisition and development. Mr. Moore agreed to help Rivers but informed him that because he was too busy with other matters, he would assign other members of the firm to work with Rivers.

[¶4] Ultimately, Rivers purchased property known as Lot 7 in Smith's Plaza, Jackson, Wyoming. Rivers purchased the property with the intention of building a 10,000 square foot building, but in the end, because of size restrictions in the property's restrictive covenants, he was able to build only an approximately 5,000 square foot building. Rivers completed the 5,000 square foot building, but he claimed that he would not have purchased the property at all if he had understood the building limitation.

[¶5] On March 14, 2007, Rivers filed a Complaint against the Firm, alleging legal malpractice and breach of contract. Among the damages Rivers sought were delay damages and damages for the difference in the value of the building he was able to construct and the 10,000 square foot building he had hoped to construct. In his Complaint, Rivers averred, in relevant part:

8. In or about February, 2005, Plaintiff Rivers engaged Attorneys to provide them legal advice and assistance regarding a proposed real estate purchase contract involving certain real property in Jackson, Wyoming known as Lot 7 of the Smiths #184 Addition to the Town of Jackson, Wyoming, according to that plat recorded in the Office of the Clerk of Teton County on September 11, 2001 as Plat No. 1029 ("Lot 7"). Attorneys Ford and Abigail Moore reviewed the proposed purchase contract and provided legal advice about whether Plaintiff Rivers could construct a 2-floor, 10,000 square foot medical office building ("Anticipated Development Project"). Plaintiff Rivers also engaged Attorneys to provide legal advice and assistance, prepare all necessary legal documentation, and handle all necessary negotiations in order to complete the Anticipated Development Project.

9. Plaintiff Rivers authorized Attorneys to deal with G. Anthony Morse, Jr. ("Mr. Mo[r]se") on Plaintiff Rivers' behalf related to real estate purchase contract and the Anticipated Development Project.

10. Mr. Morse made clear to Attorneys Ford and Abigail Moore that said Offer to Purchase on behalf of Plaintiff Rivers was to develop the property for Plaintiff Rivers as a medical office building. Mr. Morse provided Attorneys with a copy of a proposed Offer to Purchase and a copy of the Covenants, Conditions and Restrictions ("CC&Rs") regulating the property which he had received from the broker for the seller of the property.

11. Mr. Morse, acting as an agent for Plaintiff Rivers, explained to Attorneys that Plaintiff Rivers wanted to build a medical office building on the property considerably larger than the existing size specified in the CC&Rs wanting to maximize the property to include a sub-level so the project would be economically feasible. Mr. Morse informed Attorney Ford that this is the first piece of property he and Plaintiff Rivers were attempting to develop and that they were relying heavily on Attorneys' knowledge and expertise in this regard.

12. Attorneys Ford and Abigail Moore advised Mr. Morse that the CC&Rs were "loosely" written, not enforceable, and did not prohibit a basement with regard to the existing footprint. He further stated that the development could clearly be expanded beyond the square footage and footprint designated in the CC&Rs and that no other owners in the shopping center governed by the CC&Rs had complied with the CC&Rs.

13. In reliance thereon, Plaintiff Rivers continued to proceed with the Offer to Purchase and the Anticipated Development Project and utilize the legal services of Attorneys related thereto.

14. On or about February 7, 2005, Mr. Morse, with the knowledge of Plaintiff Rivers and advice of Attorneys, entered into a Contract to Buy and Sale Real Estate ("Real Estate Contract") with Eagle Village Investors, LLC ("Seller") for the purchase of Lot 7. The purchase price was $755,000. An initial non-refundable $5,000 earnest money deposit was paid as part of the Real Estate Contract.

15. At the same time, Mr. Morse assigned all of his rights and interests in the Real Estate Contract to Plaintiff Rivers by way of an agreement entitled "Assignment and Assumption of Contract to Buy and Sell Real Estate" ("Assignment").

16. Pursuant to the terms of the Real Estate Contract, Plaintiff Rivers had until March 17, 2005, in which to investigate and perform due diligence on Lot 7 ("Due Diligence Period"). At the expiration of the Due Diligence Period, Plaintiff Rivers was required to serve upon the Seller a Buyer's Notice to Proceed and pay an additional nonrefundable $5,000 earnest money deposit.

17. Attorneys never advised Plaintiff Rivers before or during this Due Diligence Period 1) of the risks of not being able to exceed the designated square footage and footprint for Lot 7 in developing Anticipated Development Project; 2) of the need to obtain the approval of or a waiver of any objections from the original developer, Smith's Food and Drug Centers, Inc. ("Smith's") for Anticipated Development Project and/or have Smith's modify the CC&Rs; 3) the effects if Smith's would not execute a shared parking agreement if required by the Town; or 4) methods to protect Plaintiff Rivers from unreasonable risk, such as seeking extension of time to continue the Due Diligence Period or proposing contractual conditions precedent to closing including, but not limited to, obtaining preliminary or final approval from the Town and/or Smith's.

18. Shortly before the Due Diligence Period expired, as to necessary required parking spaces, Attorney Ford advised that a shared parking analysis was already approved and that Plaintiff Rivers would only need to get approval of the Town to use that previously-approved shared parking analysis. There was no advise of the need to obtain any approval from Smith's or any other risks to the right to construct the Anticipated Development Project.

19. Plaintiff Rivers is informed and believes, and based thereon alleges, that Attorneys failed to contact Smith's at any time prior to expiration of the Due Diligence Period or prior to closing of the real estate transaction on or about May 12, 2005 ("Closing") to make inquiry as to Smith's position with regard to vital development issues.

20. Also, shortly before the Due Diligence Period expired, Attorneys Ford and Abigail Moore assured Plaintiff Rivers and his representatives that the Anticipated Development Project could be developed at the approximate 10,000 square feet size stating, among other things, not to worry ...

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