 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wong v. Ekberg9/20/2002
Carroll
Submitted: July 26, 2002
The plaintiff, Allan Wong, appeals an order by the Superior Court (Fauver, J.) dismissing his claims of legal malpractice and breach of contract against the defendant, Donald M. Ekberg. We affirm.
The defendant is the attorney who represented the plaintiff when he was convicted on a felony charge of receiving stolen property. In State v. Wong, 138 N.H. 56 (1993), we affirmed the plaintiff's conviction. The plaintiff subsequently filed the instant action against the defendant, asserting legal malpractice, negligence and breach of contract. The plaintiff alleged that the defendant was negligent in both his investigation of the case, and in his trial tactics and strategy. The plaintiff also alleged that the defendant breached his fee agreement by failing to properly investigate the case and by failing to adequately defend the plaintiff.
Prior to trial, the defendant moved to exclude the plaintiff's proposed expert testimony because the plaintiff, who was proceeding pro se, failed to identify his expert within the timeframe imposed by the structuring conference order. The trial court granted the motion, finding that the plaintiff's failure to disclose his expert was due to his own neglect, rather than accident, mistake or misfortune, and that the defendant would be prejudiced if the plaintiff's expert disclosure was accepted at such a late date in the proceedings. The parties then filed cross-motions for summary judgment.
The trial court granted the defendant's motion as to the claims for breach of contract because the plaintiff's claims "essentially allege that the defendant negligently performed his contractual duties" and "New Hampshire does not recognize [this] cause of action." (emphasis omitted) The trial court also granted the defendant's motion as to the negligence claim because the plaintiff did not allege that the defendant owed him any duty independent of his duty as an attorney, and, therefore, the negligence claim simply duplicated the plaintiff's counts for legal malpractice. As for the legal malpractice claims, the defendant argued that he was entitled to summary judgment because the plaintiff could not prove that he was innocent of the underlying crime. As our decision in Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H. 491, 495-98 (1999), had not yet been issued, the trial court explained that " ecause this issue has not been squarely addressed by the New Hampshire Supreme Court, it is not a sufficient legal basis for a grant of summary judgment." The trial court denied the plaintiff's pro se motion for summary judgment because "the pleading does not contain a single coherent legal argument in support of the plaintiff's motion" and the plaintiff relied "on contested facts to support his argument." The defendant then moved to dismiss the remaining legal malpractice claims, arguing that the plaintiff could not sustain his burden of proof in the absence of expert testimony. The trial court granted the defendant's motion to dismiss and this appeal followed.
On appeal, the plaintiff first argues that the trial court improperly barred the testimony of his expert witness. He contends that his failure to disclose the identity of his expert witness within the discovery period was the result of accident, mistake or misfortune. He also contends that his expert witness was properly disclosed because, during the discovery period, he had indicated that his expert witness, Attorney Fredella, would be testifying as a factual witness.
Lastly, the plaintiff contends that the defendant failed to indicate how he would be prejudiced by allowing Attorney Fredella's expert testimony.
Page 1 2 3 4 5 6 New Hampshire Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|