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Richardson v. Glass8/4/1992
FROST, Justice.
Plaintiff, Cathi Richardson, appeals the summary judgment entered in favor of defendants, which dismissed plaintiff's claims of legal malpractice and breach of contract. Plaintiff's claims arose from defendants' advise to settle a personal injury suit against Daniel Castillo who caused injuries to plaintiff in an automobile accident during his lunch break. On plaintiff's behalf, defendants negotiated a settlement with Castillo, which required plaintiff to sign a general release of liability in favor of Castillo. Subsequently, a suit filed by plaintiff against Castillo's employer, alleging respondeat superior, was dismissed with prejudice upon the district court's determination that the general release barred any claims against the employer as a matter of law. Plaintiff then sued defendants alleging that but for their erroneous advice she could have been made whole in her first lawsuit in that she could have recovered from Castillo's employer the damages not paid by Castillo. Defendants answered that Castillo was not in the scope of his employment at the time of the accident and, therefore, even if counselling plaintiff to sign the release was in error, plaintiff was not harmed because her underlying claim against the employer was without merit. Defendants' motion for summary judgment on this issue was granted by the trial court. This appeal followed.
Plaintiff alleges the district court erred in granting summary judgment because she produced "substantial competent evidence" to contradict defendants' contention that Castillo was outside the scope of his employment at the time of the accident, and, therefore, the issue should have been decided by the fact finder and not by the court as a matter of law. We affirm.
Plaintiff filed this case in October 1990, thereby coming under the 1989 amendment to our summary judgment rule, SCRA 1986, 1-056. This appeal particularly concerns the procedure mandated by Subsection (D)(2):
The moving party shall submit to the court a written memorandum containing a short, concise statement of the reasons in support of the motion with a list of authorities relied upon. A party opposing the motion shall . . . submit to the court a written memorandum containing a short, concise statement of the reasons in opposition to the motion with authorities. The moving party may . . . submit a written reply memorandum.
The memorandum in support of the motion shall set out a concise statement of all of the material facts as to which the moving party contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which the moving party relies.
A memorandum in opposition to the motion shall contain a concise statement of the material facts as to which the party contends a genuine issue does exist. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and shall state the number of the moving party's fact that is disputed. All material facts set forth in the statement of the moving party shall be deemed admitted unless specifically controverted.
The following material facts were set out in defendants' memorandum in support of their motion:
1. On July 24, 1986, an accident occurred between Cathi Richardson and Daniel Castillo. (Complaint at P 2).
2. Plaintiff retained the law firm of Glass, Fitzpatrick & Bolnick ("the Firm") to represent her with respect to her claim. (Complaint at P 3).
3. The firm negotiated a settlement with Dan
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