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Duncan v. Dempsey

Court of Appeals of Missouri, Eastern District, Third Division

April 24, 2018

DARYL DUNCAN, Appellant,

          Appeal from the Circuit Court of Franklin County Hon. Robert D. Schollmeyer.


          Angela T. Quigless, J.

         Daryl Duncan ("Duncan") appeals from the trial court's grant of summary judgment in favor of Michael C. Dempsey and Baylard, Billington, Dempsey & Jensen, P.C. (collectively, "Dempsey") on Duncan's claim of professional negligence for legal malpractice against Dempsey. Duncan asserts one point on appeal, arguing the trial court erred in granting summary judgment because Dempsey's motion was supported by inadmissible hearsay, discovery was still outstanding, and genuine issues of material fact remained such that summary judgment was not proper. We affirm.

         Factual and Procedural Background

         We review the record in the light most favorable to the party against whom summary judgment was entered, which is Duncan. United States Bank, NA v. Watson, 388 S.W.3d 233, 234 (Mo. App. E.D. 2012).

         Duncan hired Dempsey to represent him in a business transaction to redeem his financial interest in a company known as Reflective Recycling of South Carolina, LLC ("RRSC"). Following Dempsey's advice, Duncan entered into an agreement to sell his share of the company to his former business partner ("Partner") in exchange for a promissory note. Duncan asked Dempsey to negotiate the transaction so that the promissory note would be secured by collateral from either RRSC's commercial assets or the Partner's personal assets. However, when Dempsey was unable to secure collateral, Duncan accepted an unsecured promissory note.

         The agreement also required Partner to pay off an outstanding loan at Bank of Franklin County ("BFC"), which Partner did by securing a new loan from Carolina Alliance Bank ("CAB"). CAB would only provide the loan to Partner if Duncan agreed that his promissory note would be subordinate to the CAB loan, which Duncan agreed to do. In the subordination agreement, Duncan agreed that Partner would be excused from making payments to Duncan on the promissory note if RRSC did not meet a specified profit ratio. Subsequently, RRSC never met the specified profit ratio, and Partner never made any payments to Duncan under the promissory note. To date, Duncan has been unable to collect any amount of the promissory note, and the note is essentially "unenforceable."

         Duncan filed a petition against Dempsey asserting a claim of professional negligence for legal malpractice based on Dempsey's failure to procure collateral for the promissory note as Duncan requested. Duncan amended the petition to assert an additional claim for breach of contract, but subsequently filed a motion to voluntarily dismiss this claim without prejudice.[1]

         During the pendency of this litigation, Duncan was represented by a succession of five different attorneys. The first four attorneys to represent Duncan each eventually moved for, and were granted, leave to withdraw from the case. After each of the first three withdrawals, the court granted Duncan a continuance on pending matters so that Duncan would have time to obtain new counsel. During this time, Duncan also sought, and was granted, several extensions of time to respond to Dempsey's discovery requests.

         After nearly a year and a half of discovery, Dempsey moved for summary judgment arguing Duncan had not produced, and would be unable to produce, evidence supporting two essential elements of his claim for professional negligence: negligence and causation. Specifically, Dempsey argued there was no evidence Duncan would have been able to secure more favorable terms in the promissory note but for Dempsey's negligence, and Duncan failed to produce evidence from an expert witness to establish that Dempsey was negligent or that Duncan's damages were proximately caused by Dempsey's negligence.

         When Dempsey filed the motion for summary judgment, Duncan's fourth attorney had just withdrawn and Duncan had not yet retained his fifth attorney, so Duncan was representing himself pro se. Before responding to the motion for summary judgment, Duncan filed a pro se motion to compel discovery, seeking to compel Dempsey to turn over portions of various documents Dempsey had redacted on grounds of attorney-client privilege. Duncan then filed a pro se response to Dempsey's statement of uncontroverted facts. In his response, Duncan denied several of Dempsey's facts arguing they were impermissibly supported by inadmissible hearsay evidence and citing documents that were neither part of the record nor attached to his response. Duncan also responded to several of Dempsey's factual assertions by stating that "[a]t the very least, Duncan should be granted time to conduct additional discovery" concerning the facts asserted in the motion. Duncan did not attach copies of any discovery, exhibits, or affidavits to his response. Nor did Duncan file his own statement of facts or a legal memorandum of law opposing summary judgment.

         In Dempsey's statement of uncontroverted facts, he asserted Duncan "has failed to submit an expert witness to testify as to his allegations." Duncan did not deny this fact. Rather, Duncan responded by stating: "Duncan is still in the process of securing an expert in this matter. As the court has not yet closed discovery in this case or set an expert disclosure deadline, Duncan will disclose his expert at the appropriate time."

         The trial court granted Dempsey's motion for summary judgment, finding Duncan failed to produce evidence concerning the causation element of his claim, and that Duncan failed to elicit the expert testimony required to support his claim for legal malpractice. Duncan filed a motion to reconsider, to which he attached some of the documents referenced in but not attached to his response to the motion for summary judgment. The court denied the motion to reconsider. This appeal follows.

         Point ...

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