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Peter E. Sutherland won a defense judgment and an award of attorney fees after a bench trial in Casmey v. Donchez, et al. Plaintiff had retained an attorney to pursue a personal-injury action arising from an auto accident. The attorney hired a local legal-messenger service to serve suit papers on the tortfeasor in Florida. The messenger service retained a process server in Florida that later returned an affidavit of service that showed service on the tortfeasor and his wife. The attorney obtained a default judgment against the tortfeasor. However, the affidavit turned out to be false; the tortfeasor was never served, rendering the default judgment void. The statute of limitations had run in the meantime. Plaintiff sued the attorney and the messenger service. At the end of the trial, the court agreed with Peter that the attorney was not negligent in relying on the facially valid affidavit of service. The court awarded plaintiff damages against the messenger service for legal expenses incurred in defending the default judgment in the underlying action. The court awarded Peter’s client attorney fees and costs against the messenger service for the defense of the legal-malpractice claim, because the attorney was sued only because of the fault of the messenger service.

Peter Sutherland also won an appeal in another legal-malpractice case, Estate of Black v. Robben, Blauert, et al. Plaintiff estate alleged that the decedent's attorney had lost the decedent’s will, which caused the estate to incur more than $70,000 in attorney fees to establish a facsimile of that lost will with the probate court. When the decedent had died in 2000, advocates of an earlier will filed in probate, creating the estate. The decedent’s daughter successfully moved to become personal representative of the plaintiff estate in accordance with the lost will, but only after extensive litigation. The probate court awarded attorney fees in September 2001 to the losing party, the prior personal representative, in large part, for efforts taken in litigating the “lost will” issue. The daughter then sued the attorney for malpractice on October 14, 2004, more than three years from the date that she and the opposing personal representative were on notice of the facts explaining the loss of the will. The court granted Peter’s motion for summary judgment, and Court of Appeals affirmed, based on the three-year statute of limitations.

Philip B. Grennan, Michelle A. Corsi, and Keith J. Kuhn won dismissals in seven asbestos cases in which plaintiffs alleged personal injuries from exposure to asbestos at pulp and paper mills. The plaintiffs claimed that the defendant sales representative for a manufacturer of an asbestos-containing product was in the chain of distribution. After motions for summary judgment were filed in each case, based on plaintiffs’ failure to prove product identification, and after motions for costs and terms for various plaintiffs’ failure to appear at their scheduled independent medical examinations, plaintiffs’ counsel dismissed each case with prejudice, only six weeks prior to trial. ... Michelle Corsi won an appeal and an award of $71,000 in attorney fees in Gerard v. Shattuck, a legal-malpractice action. The Court of Appeals affirmed summary judgment in favor of Michelle’s client and assessed fees against plaintiff because the appeal was frivolous. … Michelle Corsi also won summary judgment in Alexander & Associates v. Keller Williams Realty, a real-estate-malpractice case. Plaintiffs, sellers of a hotel, alleged that the real estate agent violated a confidentiality agreement when showing the property. The court dismissed the action, as the agent caused no harm. … Michelle Corsi and William R. Kiendl won partial summary judgment that limited plaintiffs’ damages in a negligent-misrepresentation case against an appraiser in Borish v. Russell. Plaintiffs bought waterfront property in Pierce County and later sued various parties involved in the transaction because they learned only after closing that the home was a manufactured home and not a house of conventional construction. The court agreed with Michelle and Bill that any recovery for negligent misrepresentation is limited to the value of the property received and its purchase price, not the cost of replacing the house, and not benefit of the bargain, which typically are awardable only in contract. The court also dismissed plaintiffs’ claim of “negligence,” which they claimed existed independent of the claim of negligent misrepresentation.

The Lee Smart Quarterly is a publication of the law offices of Lee, Smart, Cook, Martin & Patterson, P.S., Inc. for clients and others. It is intended as general information only and is not to be construed as legal advice. You should consult an attorney if you have any specific legal questions.

Editor: Jeffrey P. Downer	Eml: jpd@leesmart.com
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