Lenius v. King
294 N.W.2d 912
S.D.
1980
Check Treatment

*1 LENIUS, Roger Appellant, Plaintiff and KING, Appellee.

H. Defendant I. LENIUS,

Roger Appellee, Plaintiff and KING, Appellant.

H. I. Defendant and

Nos. 12798.

Supreme Court of Dakota. South

Argued April 1980. July

Decided 1980. Coester, Milbank, Roger

William E. Lenius.

Stanley Siegel Harvey E. C. Jewett Schütz, O’Keefe, Barnett, Siegel, Jewett Aberdeen, King, King. for H. I. & *2 913 Stock, Engel 579, v. FOSHEIM, 88 S.D. 225 872 Justice. N.W.2d (1975); Boyd Alquire, 684, v. 82 S.D. 153 judgment appeals from a n.o.v. Plaintiff (1967), support 192 and to a N.W.2d verdict a of the defendant on cause in favor of considering the it against defendant in the legal malpractice. We affirm action for light plaintiff. most favorable to the Block cross-ap- the We dismiss judgment. 469, McVay, v. 80 S.D. 126 N.W.2d 808 peal of the defendant. (1964). proof If of an essential element plaintiff is He en- The a well-driller. missing case a motion a from the for collecting two- countered difficulties for drawing was made the trial directed verdict guaranteed pro- he had wells which would deficiency, a judg court’s attention to the Early plain- water. in 1971 the duce clear notwithstanding proper. ment the verdict is the to his employed tiff defendant foreclose Scott, 511, v. 84 173 287 State S.D. N.W.2d on mechanic’s liens these accounts. Accord- denied, 821, (1969), 91 cert. 400 U.S. S.Ct. ingly, February in of 1971 defendant 39, (1970). 27 49 L.Ed.2d complaint caused a summons and to be served on each of the landowners. In each 22, by No. trial given Instruction action defendant served an answer and court, reads as follows: counterclaim in essence denied professional In services for performing be claim of and asked that he client, to attorney duty a have has down-payment to refund the be- degree learning skill of ordinari- cause the well that was drilled was not ly possessed attorneys good by stand- the intended use. suitable for household practice ing engaged type in the same Both wells were abandoned. the fall locality. in the same or a similar 1977, were motions for dismissal served duty It is his further to see that care in actions. counsel for the defendant in like ordinarily a and skill exercised cases promptly This defendant sent notice standing pro- of his attorney good withdrawal to the members in representing line of Attorney George engaged prac- both Rice fession same landowners. locality the mo- in the similar represented thereafter on tice same or under circumstances, diligent tions. The court dismissed both and to be similar 7, well as accomplish purpose the counterclaims November in an for effort to 1977, prosecute. for failure to Plaintiff employed. per- which he A failure to this against then commenced this action any duty negligence. form such malpractice alleging negli- defendant for You must decide whether defend- failing bring to his on for gence for case possessed knowledge, ant and used in timely trial manner. which the law demands skill care attorneys from evidence of who $6,000.00 for him The returned a verdict expert witnesses. granted trial the de- testified as plaintiff. The court judgment on the fendant’s motion n.o.v. object did not to While was ground that the evidence insufficient settled, challenges now instruction when he want to the verdict for paragraph. appeal last On an from its testimony that the breached the defendant judgment following a motion for n.o.v. standard of care of an verdict, the rule of law directed correct failing bring original litigation to on for than the law of the case estab- rather light trial. The contends that lished the trial court’s instructions case, expert testimony facts in this Marketing applied. are Mid-America necessary establish a not to breach Dakota, Etc., (S.D. 797 N.W.2d Corp. v. 289 Kocer, 221, 1980); 193 Corey v. 86 S.D. Tomlinson, Frager n.o.v., (1972); v. reviewing (1953); Federal examines, 57 N.W.2d 618 appellate court not S.D. but does Houck, Bank S.D. weigh, it was Land of Omaha the evidence to determine if Carpenter, jury, case 4 N.W.2d 213 Schmidt sufficient to submit the to gence principles professional conduct (1911). We do N.W. 712 S.D. however, competent evidence of what problem, absent to be a not find this done under similar evidence, lawyer would have we are reviewing the since after circumstances, jury may not be incor- the instruction persuaded about what speculate permitted in this case. the law rectly states *3 Expert ev- may be. ‘professional custom’ standard applied trial court the same The custom’ is ‘professional as to the idence lawyer that is settled care of of against malpractice in actions Block v. profession. the medical for professionals. other omitted.] [Citations Isaak, v. 70 McVay, supra; Hansen S.D. a similar standard demands Consistence Watson, 529, (1945); v. N.W.2d 521 Lohr 19 attorneys. for (1942); 298, Lundgren v. 2 N.W.2d 6 68 S.D. 217, (1936); 266 N.W. 145 Minty, 64 S.D. as to question approach We now 471, N.W. Murdy, v. 61 249 necessary Bennett S.D. in expert testimony was whether Klegger, v. 50 (1933); Hammer S.D. 805 the de- plaintiff When retained this case. Bliss, 453, Warwick v. 210 N.W. 667 fendant, inform him apparently he did not 622, (1923). water, 195 N.W. 501 46 S.D. clear nor did guaranteed that he had had the landowners King he tell Mr. that action the malpractice In a the wells because of sand abandoned both decides, presented by at trial from evidence for negotiations with counsel problems. In witnesses, expert as lawyers called other attempt in to settle such landowners possessed and used the lawyer whether a claims, guarantees of the King Mr. learned skill, care which the law knowledge, and abandoned. the wells had been and that opinions of him. The and testimo demands in order to that He advised in ny experts indispensable are de of such have to be made prevail, the wells would which are unfamiliar to termining questions plain- agreement. conform with his Since and, field, within that ordinary witnesses wells had never informed him that the tiff are not admis opinions lay witnesses claims that he improved, King Mr. been Anderson, 41, sible, v. S.D. Shearn litiga- plaintiff had abandoned assumed in a mal (1951). A verdict tion. stemming practice case based on inferences attorneys in- appears that all of the conjecture cannot It speculation from rule, litigation were of the Watson, original supra. This volved stand. Lohr v. pre- have however, opinion that could not opinions and does not exclude the King testified subjects in those cases. Mr. witnesses on vailed lay conclusions of that, likely would have opinion, in his there knowledge which are within the common recovery on either or both counter- possessed of been comprehension laymen gone had to trial. Like- education, claims if the cases ordinary experience opportu defendant, wise, in the attorney for the McVay, v. su nities for observation. Block action, opinion they Anderson, original was of the pra; supra. Shearn v. on the counterclaims. could have recovered Malone, Hughes Ga.App. Rice, testified as an Mr. who (1978), the Court of 247 S.E.2d case, agreed in this expert for the Appeals Georgia application summarized perhaps It for with that evaluation. expert legal profession: of the rule to the his he was not asked for this reason that Hence, palpable except in clear and this defendant was opinion as to whether (such expiration as the statute cases moving plaintiff’s cases for negligent in not limitation), testimony expert is neces- trial. sary parameters to establish the of ac- court, conduct, having heard signifi- The trial ceptable professional was suf that the issue testimony, which would consti- concluded cant deviation from ficiently complex so that malpractice. tute omitted.] [Citations established simply of care must be requirement The reason for this standard agree. We See: Block rationally apply negli- expert testimony. cannot Watson, addition, McVay, supra; Lohr v. su counterclaims were filed testimo the defendants in these and no re- pra. In the absence of granted plies were served or the defendant ny, properly the trial court filed notwithstanding present period action for of six motion for leaving read thus years, This conclusion should not be vulnerable verdict. Mr. these The commending performance as to counterclaims. fact King. judg- the defendants did take default in the original ments on their counterclaims disposition the principal In view of our actions cannot excuse the defendant here. appeal, cross-appeal defendant’s from rudimentary He had not taken the even of his motion a new trial based denial his step filing replies protect client. evidentiary rulings by the trial upon certain court rendered moot. There no conflict the record duty imposed upon defendant and his Accordingly, the # 12798 cross-appeal in breach of that This leaves *4 dismissed; the judgment and in # damages question of the suffered the is affirmed. as plaintiff proximate a result of this conflicting duty. breach of Here there was WOLLMAN, MORGAN, J., J.,C. and possibility recovery evidence as the to concur. this original the but all of conflict- HENDERSON, JJ., DUNN and dissent. ing jury, was to the testimony submitted DUNN, (dissenting). Justice conflicting testimony that was and resolved jury it plaintiff in favor of the when I dissent. $6,000. awarded a verdict of n.o.v., a considering this majority expert legal Now the holds that most light court reviews evidence in testimony required “appli- was to show jury verdict. favorable to of care” of the de- cable standard every Plaintiff is to receive the benefit of he can held liable in fendant before be inference, and each must controverted fact legal damages. expert There was testimo- plaintiff. be resolved in favor of the judge who ny-first the learned trial damages legal to in a order recover cases, stating that there was dismissed the case, malpractice prove a plaintiff must plaintiff’s to explanation as to failure no existed, a there duty that that was a breach years six thirteen calen- proceed; that and duty, and sus- elapsed plaintiff’s attor- dar calls had and damages proximate tained as result nothing I. ney, King, H. had done until such breach of day after the defendants’ motions to dis- had entrusted It conceded counsel, miss, at which time he withdrew as legal to two actions the defendant for testimony of secondly, there was suits; purpose bringing were suits Rice, attorney twenty- George with some brought; and that failure of to defendant’s eight years’ experience, that period of six prosecute the actions over up did live conduct not to years resulted in a dismissal of the actions to given duty standards of an its by the circuit court. The court stated in prosecute legal actions. opinion: memorandum Philadelphia Finally, it does not take general rules cir- Applying to the letting lie lawyer to out that actions figure cases, Court cumstances these two thirteen calen- years six dormant over to prosecute. must dismiss for failure they calls are dismissed lack dar until explanation There as to is no Plaintiff’s a breach of standards prosecution is proceed; years failure to six and thirteen walk legal profession any but only in elapsed; calendar calls have and Plain- really expert no life. The needed Attorney, King, nothing tiff’s H. I. did testimony regard. in that day until after Defendant’s Motion resulting to Dismiss, question damages at which time he withdrew On breach, result of the counsel. the con- upon to consider called origi- whether the testimony as to flicting successful would have been

nal actions prosecuted. properly if

the first instance of whether questions involved

This according specifica-

wells were drilled par- rights duties of the and the

tions This is drilling contracts.

ties under the jury would have than the

nothing more sitting in one of the to do if

been This was a decision legal actions.

original facts, is histori- and such a decision

on the jury.

cally reserved testimony generally re-

While negli- practice

quired as to standards exception when the mat-

gence, there is an within the area of common

ters at issue fall Hill v. lay comprehension.

knowledge and Co., Inc., 312 Minn.

Okay Const. Maddox, House Ill.Dec. 360 N.E.2d 580

Ill.App.3d *5 substantial, credible, and

(1977). There was in the record

understandable evidence For the trial jury’s verdict. away from

court to take this verdict can contribute

plaintiff was error and lay person’s misunderstand-

further suspicions of the Bar.

ing and n.o.v. and

I would reverse

reinstate the verdict. Justice to state that

I am authorized this dissent. joins in

HENDERSON CLARK, Petitioner

Dale L. Appellant, Dakota, Appellee.

STATE South 12975.

No. Dakota.

Supreme Court of South May Briefs 1980.

Submitted July 1980.

Decided