 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
McComas v. Mixed Nits3/8/2000
Appeal from Circuit Court, Marion County.
Robert J. Huckleberry, Judge.
Argued and submitted January 24, 2000.
Maureen C. VanderMay argued the cause for appellants. With her on the briefs was The VanderMay Law Firm.
Affirmed.
Plaintiffs appeal from summary judgment for defendant on their legal malpractice and breach of contract claims, as well as from the denial of their cross-motion for summary judgment on the malpractice claim. We affirm.
Plaintiffs are a corporation, its president, and its secretary. This case arises out of plaintiffs' attempt to obtain a Retail Malt Beverage (RMB) license from the Oregon Liquor Control Commission (OLCC) for a tavern they had contracted to purchase in Independence, Oregon. The purchase of the business, which was to be known as "Jammers West," and the accompanying 25-year lease of the premises both were contingent on issuance of the RMB license. In March 1994, after conducting an investigation, OLCC regulatory staff recommended that the license be denied. Plaintiffs hired defendant in late March or early April 1994 to represent them in connection with their continuing efforts to obtain the license. Plaintiffs requested a hearing on the proposed denial. The hearing, at which defendant represented plaintiffs, was held in June 1994.
According to the affidavit of the corporation's president Scott McComas, submitted in opposition to a motion for summary judgment, defendant made the following contractual guarantee after the OLCC hearing:
"On or about June 23, 1994, plaintiff David Nault and I had lunch with [defendant] following an OLCC hearing in the Jammers West licensing matter. "* * * * * "The primary topic discussed at this lunch was how to proceed in the event that the OLCC denied an RMB license for Jammers West. "[Defendant] repeatedly assured [plaintiffs] that if the OLCC denied a license to Jammers West, we would prevail at the Oregon Court of Appeals. stated that he was completely confident that we would prevail in that forum. He stated further that if we received an adverse OLCC determination, we would 'kick ass' at the Court of Appeals."
Defendant contends that he "never guaranteed laintiffs a result at the Court of Appeals * * * [,] that he did not believe an appeal from the OLCC's adverse Final Order would be successful[,] and that he communicated his belief to the laintiffs."
In October 1994, the hearings examiner recommended that a license be issued with restrictions. In March 1995, after considering exceptions to the hearings examiner's recommendation, OLCC denied the license on two grounds: (1) The establishment was located in a "problem" area, OAR 845-005-0026(3)(a); and (2) McComas had "a record of using alcoholic beverages to excess," OAR 845-005-0025(4)(a). Plaintiffs moved for reconsideration, which OLCC denied. Although defendant proceeded with the plan to seek review of the final OLCC order, the petition for judicial review that he filed was untimely. As a consequence, we dismissed the appeal. Thus, OLCC's order stood unchallenged and plaintiffs were unable to obtain an RMB license and complete the purchase of Jammers West.
Plaintiffs then filed this action against defendant. They alleged that defendant's failure to file a timely petition for judicial review constituted professional negligence. Furthermore, plaintiffs asserted that defendant's omission constituted a breach of the alleged contractual guarantee to obtain a reversal of OLCC's decision in this court. Defendant moved for summary judgment, contending, among other arguments, that plaintiffs were not damaged by his failure to file in time, because
Page 1 2 3 4 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|