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Rino v. Mead9/27/2002
[ ] These consolidated appeals are challenges to the district court's grant of summary judgment to an attorney and an accountant in a professional malpractice case and the district court's further denial by inaction of a subsequent motion to reconsider. We affirm the summary judgment in favor of the accountant because there are no genuine issues of material fact as to whether he made any professional representations that were relied upon by the appellant, and he is entitled to a judgment as a matter of law. However, we reverse the summary judgment granted to the attorney because she did not establish a prima facie case entitling her to summary judgment.
FACTS
[ ] In October 1996, J. Douglas McCalla (McCalla) filed for divorce from Theresa McCalla, now Theresa Rino (Rino). McCalla was represented by attorney John Stark (Stark). Rino hired Katherine L. Mead (Mead) to represent her. With the assistance of a mediator, McCalla and Rino settled child custody and support issues, leaving for trial only the issue of property and debt division.
[ ] Shortly before the date set for trial, McCalla, Rino, Stark, and Mead met to attempt to work out the property and debt issues. Also in attendance was appellee James T. Sorensen (Sorensen), who had acted as the McCallas' accountant during their marriage. Sorensen brought with him to the meeting a compiled financial statement he recently had prepared for the McCallas to enable them to extend a bank credit line. That compiled financial statement was used at the meeting as the basis for a division of the marital assets and debts between McCalla and Rino. A settlement was reached and Stark advised the district court to cancel the trial.
[ ] After the settlement meeting, a written settlement agreement was prepared. Rino refused to sign the agreement, terminated Mead's employment, and obtained new counsel. McCalla then filed a motion to enforce the agreement. After a hearing, an order was entered enforcing the settlement. The terms of the agreement were incorporated into the Decree of Divorce filed May 1, 1998.
[ ] On September 23, 1999, Rino filed a professional malpractice complaint against Mead and Sorensen. Specifically, the complaint alleged that Mead had violated the following professional duties owed to Rino:
1. A duty of loyalty to her interests.
2. A duty to be truthful to her, and to honestly and in good faith keep her fully advised of the facts and law applicable to her legal situation in the divorce case, and of the preparations the attorneys had made for the trial set to commence on September 29, 1997.
3. A duty to investigate the applicable facts, particularly the valuation of the husband's interest in his law firm, and to evaluate the effect of those facts on the legal proceedings.
4. A duty to prepare for the trial set to commence on September 29, 1997, including but not limited to the duty to prepare the expert witnesses she allegedly had retained.
5. A duty to prepare for, advise Rino with regard to, and participate in, the mediation conducted on September 24, 1997, including but not limited to the duty to be conversant with the relevant financial facts which were in dispute between the parties, and a duty to negotiate zealously on behalf of Rino.
[ ] The complaint alleged that Sorensen had violated the following professional duties owed to Rino:
1. A duty of loyalty to her interests when he purported to act on her behalf.
2. A duty to be truthful and unbiased with respect to the valuation of the husband's interest in his law firm.
3. A duty to provide accounting information
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