Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of Franklin County Hon. Robert D.
T. Quigless, J.
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.
and Procedural Background
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).
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
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
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.
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.
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 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.
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."
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.