982 N.W.2d 330
N.D.2022Background
- In 2012 Mullin acquired Twete’s farming operation while Twete remained on the property; a later district court found the conveyance was intended as temporary to protect Twete’s property from sibling claims.
- Mullin retained attorney Elizabeth Pendlay in November 2014 to evict Twete; Pendlay represented Mullin and Nelson through the 2017 jury trial.
- The jury found Mullin breached a confidential relationship, imposed an implied trust, ordered reconveyance and compensation; the judgment was affirmed on appeal.
- Mullin and Nelson then sued Pendlay for legal malpractice alleging (1) she stipulated to erroneous jury instructions, (2) failed to plead unclean hands/illegality, (3) did not object to a prosecution video, and (4) prematurely filed a Motion to Stay with the ND Supreme Court.
- The district court granted summary judgment to Pendlay on each malpractice theory (but denied Pendlay’s summary judgment on statute-of-limitations), and Mullin and Nelson appealed.
- The North Dakota Supreme Court affirmed: it held the jury instructions were legally correct, the affirmative defenses were inapplicable, there was no evidence the video objection would have changed the verdict, and the Motion-to-Stay claim was inadequately developed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instructions misstated law on confidential relationship/implied trust | Mullin: repeal of N.D.C.C. § 59-01-08 removed the confidential-relationship/implied-trust doctrine, so stipulating to the instruction was negligent | Pendlay: the implied-trust doctrine is common law and survives statutory repeal; instructions correctly stated law | Held: Instructions were correct; no malpractice for stipulating to them |
| Failure to plead unclean hands / illegality | Mullin: pleading these defenses would have defeated Twete’s claim (transfer was fraudulent) | Pendlay: defenses inapplicable because Mullin/Nelson participated in and profited from the challenged transfer | Held: Defenses inapplicable—Mullin/Nelson profited and cannot assert unclean hands/illegality; no malpractice |
| Failure to object to video evidence | Mullin: Pendlay’s failure to object allowed prejudicial video into evidence | Pendlay: no proof an objection would have been sustained or that excluding it would have changed the verdict | Held: Plaintiff offered no evidence of a favorable-but-for result; no malpractice |
| Filing Motion to Stay before appeal | Mullin: Pendlay should have known the stay motion was premature and filing was negligent | Pendlay: motion was improper; but plaintiffs must show negligence and resulting damages | Held: Issue waived/insufficiently developed by plaintiffs; no relief |
Key Cases Cited
- Twete v. Mullin, 931 N.W.2d 198 (N.D. 2019) (background and prior proceedings in the underlying litigation)
- Twete v. Mullin, 952 N.W.2d 91 (N.D. 2020) (appellate disposition of related issues in the underlying case)
- Richmond v. Nodland, 501 N.W.2d 759 (N.D. 1993) (elements of legal malpractice claim)
- Swanson v. Sheppard, 445 N.W.2d 654 (N.D. 1989) (plaintiff must show the act would have benefited the client)
- Dan Nelson Const., Inc. v. Nodland & Dickson, 608 N.W.2d 267 (N.D. 2000) (case-within-a-case requirement for negligent-omission claims)
- In re Estate of Conley, 753 N.W.2d 384 (N.D. 2008) (repeal of a statute does not abolish related common-law doctrines)
- In re Estate of Bartelson, 864 N.W.2d 441 (N.D. 2015) (recognition of implied trust based on confidential relationship post-repeal)
- First Nat. Bank of Hettinger v. Clark, 332 N.W.2d 264 (N.D. 1983) (evidentiary burden on nonmoving party opposing summary judgment)
- Klem v. Greenwood, 450 N.W.2d 738 (N.D. 1990) (summary judgment ordinarily inappropriate in malpractice cases, but still available when no factual dispute exists)