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Brownstein v. Pearson3/8/2000
the damages defendant sustained as a result of filing for bankruptcy were less than the damages he would have sustained had he opposed the TRO. It followed, plaintiff reasoned, that defendant could not prove either a breach of duty or damages.
In response to plaintiff's motion, defendant submitted affidavits stating that he had been damaged as a result of plaintiff's advice to file for bankruptcy . His new attorney also submitted an affidavit pursuant to ORCP 47 E, in which he stated:
"4. Defendant has retained an unnamed, qualified expert who is available and willing to testify to admissible facts or opinions creating questions of fact, which, if revealed by affidavit would be a sufficient basis for denying plaintiff's motion * * * for summary judgment on the basis that '[defendant] cannot muster sufficient evidence presenting genuine issues of material fact on the elements of breach or damages,' * * * "5. Defendant's bankruptcy expert will testify in part [that] he has reviewed the Consolidated * * * bankruptcy file and that plaintiff failed to use the care, skill and diligence that would ordinarily be used by lawyers in the community under similar circumstances, including in part that * * *." (Underscoring in original.)
Paragraph 5 of the affidavit goes on to list a series of 12 acts that defendant's former attorney had taken that, in the expert's opinion, established that defendant's former attorney had failed to exercise the "care, skill, and diligence that would ordinarily be used by lawyers in the community under similar circumstances." Paragraph 5 concludes that as a result of those failures "defendant suffered damages as the largest creditor of [Consolidated] and in the form of preference payments repaid to [Consolidated's] bankruptcy estate."
The trial court granted plaintiff's motion for summary judgment on defendant's counterclaims. It did not accept plaintiff's statute of limitations defense. It ruled that, on this record, the question of when defendant should have discovered that his losses were caused by plaintiff's alleged malpractice was a factual issue. It agreed, however, that defendant had failed to establish that he had been damaged by plaintiff's advice. The court explained that " efendan ha offered no evidence that the result in Clackamas County Circuit Court would have been better than the result in bankruptcy court, which defendant must do to prevail."
On appeal, both parties focus on whether the affidavit that defendant's attorney submitted was sufficient to create a disputed issue of fact. Plaintiff argues that once defendant chose to specify what his expert would say, the trial court was required to presume that the expert would say nothing else. Defendant responds that the inference plaintiff draws is unwarranted. His affidavit made clear that it was setting out part but not all of his expert's testimony. We conclude that the affidavit that defendant submitted pursuant to ORCP 47 E was sufficient to create a disputed issue of material fact.
ORCP 47 E provides:
"If a party, in opposing a motion for summary judgment, is required to provide the opinion of an expert to establish a genuine issue of material fact, an affidavit of the party's attorney stating that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact, will be deemed sufficient to controvert the allegations of the moving party and an adequate basis for the court to deny the motion."
We explained in Moore v. Kaiser Permanente, 91 Or App 262, 265, 754 P2d 615, rev den 306 Or 661 (1988), that an affidavit may create an issue of fact by "
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