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Roberts v. Calhoun6/3/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Attorney Patrick Calhoun appeals from a judgment after a jury trial in a legal malpractice action. The jury found that Calhoun was negligent in his handling of Gretta Roberts's bankruptcy action, causing Roberts to lose her home in a foreclosure sale, and awarded Roberts $177,784 in damages. Roberts has filed a cross-appeal.
During trial, the court initially granted, then later denied, Roberts's motion to present evidence of emotional distress damages. This appeal raises several issues relating to Roberts's emotional distress claim. Calhoun alleges that the trial court erred in allowing Roberts to testify regarding her family history before reversing its ruling on the emotional distress damages. Roberts asserts that the trial court erred in denying her motion to amend her complaint to state a cause of action for intentional infliction of emotional distress, coupled with a prayer for punitive damages, and when it ruled that she could not recover for negligent infliction of emotional distress in a legal malpractice action.
Calhoun also challenges the sufficiency of the evidence of Roberts's motel, travel, and storage expenses and asserts that Roberts was only entitled to prejudgment interest from the date of the filing of her complaint, not the date of the foreclosure. Calhoun asserts that the judgment should be reversed because a prospective juror stated that she thought she knew him because she worked for a company that handled his malpractice insurance. Lastly, Calhoun asserts that the trial court erred in instructing the jury regarding the elements of Roberts's legal malpractice claim.
In her cross-appeal, Roberts claims that the trial court erred in excluding evidence of the tax consequences of her damages award and in excluding evidence of the fair market value of the property at the time of trial. She also asserts that the trial court erred in denying her post-trial motion for attorney fees. We find no error and will affirm the judgment.
Facts
First Bankruptcy Petition
By late 1996, Gretta Roberts was several months behind on the mortgage payments on her home in San Jose. On November 14, 1996, her lender issued a default notice and initiated foreclosure proceedings on the property. By that time, Roberts was $7,354.34 in arrears. Roberts wanted to keep her house and sought the advice of a bankruptcy attorney, Patrick Calhoun. In mid-December 1996, Calhoun advised Roberts to file for Chapter 13 bankruptcy. He recommended that she delay filing the bankruptcy petition until after January 1, 1997, in order that the next mortgage payment might be included in the bankruptcy plan, thereby increasing Roberts's cash flow. As it turns out, the petition was not filed until February 7, 1997.
Roberts had purchased the property in 1985 for $107,000. When she filed for bankruptcy in February of 1997, she had lived in the house for 11 to 12 years. During that time, she refinanced the first mortgage and took out second and third mortgages. By the time she filed for bankruptcy, she owed $168,000 on the three mortgages. Roberts advised Calhoun that the property had been appraised for $200,000 in 1994 and inquired whether she should obtain a new appraisal. He said it was not necessary and used the $200,000 figure in the bankruptcy petition.
Roberts, who was self-employed
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