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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________

Grafton
No. 2015-0463


                                  JAMES YAGER

                                         v.

                           K. WILLIAM CLAUSON & a.

                          Submitted: March 3, 2016
                         Opinion Issued: April 19, 2016

       Orr & Reno, P.A., of Concord (Jeffrey C. Spear on the brief), for the
plaintiff.


       K. William Clauson, self-represented party, by brief.


       Clauson, Atwood & Spaneas filed no brief.

       DALIANIS, C.J. The plaintiff, James Yager (the client), appeals orders of
the Superior Court (MacLeod, J.) granting summary judgment to defendant K.
William Clauson (the attorney) on the client’s legal malpractice claim and
dismissing that claim as to defendant Clauson, Atwood & Spaneas (the law
firm). Of the two defendants, only the attorney has appeared in this appeal.
We affirm the trial court’s decision to dismiss the client’s legal malpractice
action against the law firm, reverse its grant of summary judgment to the
attorney, and remand for further proceedings consistent with this opinion.
I. The Grant of Summary Judgment to the Attorney

      A. Relevant Facts

      This is the second appeal of this case and many of the underlying facts
and procedural history are set forth in our prior decision, Yager v. Clauson,
166 N.H. 570 (2014). The client’s legal malpractice claim stems from the
defendants’ representation of him in two timber trespass actions. See id. at
571. The first action was brought against Mighty Oaks Realty, LLC (Mighty
Oaks) in 2007 (the Mighty Oaks action). Id. Summary judgment was granted
to Mighty Oaks, in part, because the client failed to prove that Mighty Oaks
was the entity that cut the timber. Id.

       The second action was brought against D.H. Hardwick & Sons, Inc.
(Hardwick) in 2008 (the Hardwick action). Id. In that action, the client alleged
that Hardwick was the entity that cut the timber. Id. Summary judgment was
granted to Hardwick because the action had been filed more than three years
after the timber cutting had ceased and, thus, was barred by the applicable
statute of limitations. Id. We affirmed the trial court decisions in both actions.
Id.

       Thereafter, the client filed the instant malpractice action against the
defendants alleging that the applicable standard of care was breached because
the Hardwick action was not timely filed. Id. The defendants moved to dismiss
on two grounds: (1) because the client failed to provide requested discovery;
and (2) because the client failed to disclose the experts necessary to prove his
legal malpractice claim. Id. at 571-72. In 2013, the trial court granted the
motion to dismiss on the second ground and did not reach the first ground.
See id. at 572. In granting the motion to dismiss on the second ground, the
trial court ruled that an expert was required to prove legal malpractice as a
matter of law. See id. at 574-75. We vacated that decision and remanded for
further proceedings. Id. at 575. We held that, to the extent that the trial court
had applied a per se rule requiring expert testimony to prove the elements of a
legal malpractice claim, it had erred. Id. at 573, 574-75. We remanded for the
court to “examine the specific facts of the case to determine whether the nature
of the case was such that expert testimony was required.” Id. at 575.

       On remand, the attorney moved for summary judgment, arguing that an
expert was necessary to prove that: (1) the attorney breached the standard of
care; and (2) the client would have prevailed in the Hardwick action. In
objecting to the motion, the client argued that no expert testimony was
required to establish which statute of limitations applied to the Hardwick
action because the court in that action had already decided the issue. The
client further argued that the court in the Hardwick action had also already
decided that he could offer lay opinion testimony about the location of the
boundary lines of his property and his damages. In addition, the client


                                        2
asserted that he had already designated experts to testify about his title claim
and the boundaries of his property and that no additional experts were
necessary to prove his timber trespass claim. Finally, with respect to
proximate cause in his legal malpractice case, the client asserted that
“proximate cause refers to the ‘case within a case,’” and that no legal expert
was required to prove this element of his legal malpractice claim.

       The trial court granted the attorney’s motion over the client’s objection.
The trial court distinguished “between expert witness testimony necessary to
establish the facts of the underlying claim and expert witness testimony
necessary to apply the law to those facts to prove proximate causation in a
legal malpractice case.” Because the court determined that “[a]pplying the law
to the facts in this case” is so distinctly related to the practice of law as to be
beyond the ken of the average layperson, the court ruled that expert testimony
is required. The trial court concluded that, although the experts whom the
client had already identified “may establish the facts of the underlying dispute,”
they “are unable to apply the law of timber trespass to these facts to establish
proximate . . . causation” in the legal malpractice claim. Accordingly, the court
granted the attorney’s summary judgment motion. The court did not address
in its order the attorney’s argument that an expert was also required to
establish breach of the applicable standard of care. The client unsuccessfully
moved for reconsideration. This appeal followed.

       To the extent that the attorney purports to challenge the trial court’s
finding that the experts whom the client had already identified were sufficient
to establish the facts of the underlying timber trespass dispute, we decline to
address his arguments because he did not file a cross-appeal.

      B. Analysis

       In reviewing the trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party. Camire v. Gunstock Area
Comm’n, 166 N.H. 374, 376 (2014). If our review of that evidence discloses no
genuine issue of material fact, and if the moving party is entitled to judgment
as a matter of law, we will affirm the grant of summary judgment. Id. We
review the trial court’s application of the law to the facts de novo. Id.

      In a legal malpractice case, as in any other negligence case, the plaintiff
has the “burden to prove facts upon which the law imposes a duty of care,
breach of that duty, and so-called proximate causation of harm.” North Bay
Council, Inc. v. Bruckner, 131 N.H. 538, 542 (1989). Thus, to prevail in his
legal malpractice claim, the client had to prove that: (1) he and the attorney
had an attorney-client relationship; (2) the attorney breached his duty to
exercise reasonable professional care, skill, and knowledge in providing legal
services to the client when he failed to file the Hardwick action within the


                                        3
applicable statute of limitations; and (3) the attorney’s breach of the requisite
standard of care proximately caused the client harm. See Yager, 166 N.H. at
572-73.

       To establish proximate causation in a legal malpractice case, a plaintiff
must demonstrate “what result should have occurred if the lawyer had not
been negligent.” Carbone v. Tierney, 151 N.H. 521, 528 (2004) (quotation and
ellipsis omitted). Thus, a legal malpractice plaintiff “essentially has a double
burden of proof”: he first must establish that the defendant was negligent,
meaning that the defendant owed him a duty of care and breached that duty,
and he must then establish that the underlying claim was recoverable. 4 R.
Mallen & J. Smith, Legal Malpractice § 33:9, at 720 (2012 ed.). Although in
some jurisdictions, the plaintiff must also prove that the claim was “collectible,”
id., in New Hampshire, “noncollectibility of the underlying judgment is an
affirmative defense that must be proved by the defendant.” Carbone, 151 N.H.
at 533.

      Whereas in medical malpractice cases, we have held that expert
testimony is required to prove proximate cause, Beckles v. Madden, 160 N.H.
118, 125 (2010), we have declined to adopt a similar per se rule in legal
malpractice cases, see Yager, 166 N.H. at 573. Instead, we have held that
whether expert testimony is required to prove proximate cause in a legal
malpractice case depends upon the specific facts of the case. See id. at 573-
75.

       In this case, the trial court concluded that a legal expert was necessary
for the plaintiff to prove “what result should have occurred” had the Hardwick
action been timely filed. Carbone, 151 N.H. at 528 (quotation and ellipsis
omitted). The client argues that this was error because he could have used the
“trial-within-a-trial” method to prove this. We hold that, to the extent that the
trial court determined that the trial-within-a-trial method was unavailable to
the client, as a matter of law, the trial court erred. See McIntire v. Lee, 149
N.H. 160, 165-66 (2003); Witte v. Desmarais, 136 N.H. 178, 189 (1992).

       Recreating the underlying case is “[t]he traditional means of resolving
what should have happened” had an attorney’s negligence not occurred.
Mallen & Smith, supra § 33:3, at 626; see Garcia v. Kozlov, Seaton, Romanini,
845 A.2d 602, 611-12 (N.J. 2004). “Recreating the underlying action requires
calling and examining those persons who would have been witnesses and
presenting the demonstrative and documentary evidence that would have been
presented but for the attorney’s negligence.” Mallen & Smith, supra § 37:15, at
1510. “This process then becomes in essence a trial within a trial.” Witte, 136
N.H. at 189; see McIntire, 149 N.H. at 165; see also Mallen & Smith, supra
§ 37:15, at 1511. In the “trial within a trial,” the jury in the legal malpractice
action “substitute[s] itself as the trier of fact” in the underlying action and
“determine[s] the factual issues presented on the same evidence that should


                                         4
have been presented to the original trier of fact.” McIntire, 149 N.H. at 165
(quotation omitted). The trial-within-a-trial approach is “regularly employed in
most jurisdictions” in legal malpractice cases, Garcia, 845 A.2d at 612, and
has been employed in New Hampshire, see McIntire, 149 N.H. at 165-66; Witte,
136 N.H. at 188-89.

      Whether the trial-within-a-trial method of proving proximate causation is
applicable depends upon “the nature of the attorney’s error.” Mallen & Smith,
supra § 37:15, at 1509; see Osborne v. Keeney, 399 S.W.3d 1, 10 (Ky. 2012).
When the injury claimed does not depend upon “the merits of the underlying
action, the methodology is not applicable.” Mallen & Smith, supra § 37:15, at
1510; see Osborne, 399 S.W.3d at 10 n.17.

       However, when, as in this case, the alleged negligence concerns the
attorney’s failure to file an action within the applicable statute of limitations,
the trial-within-a-trial method is particularly apt. Mallen & Smith, supra
§ 37:15, at 1509-10; see Osborne, 399 S.W.3d at 10 n.17 (citing cases and
observing that “a lawyer failing to file a claim before the expiration of the
statute of limitations is the predominant circumstance” in which the trial-
within-a-trial approach is applied). As one commentator has observed, “[t]he
justification for applying the [trial-within-a-trial] method” when a lawyer misses
the statute of limitations “is readily apparent”: “To ask plaintiffs to try their
claims only once before receiving compensation is no burden and requires no
special justification.” C. Crapster, The Common Sense of Re-creation: Why
Texas Should Close the Door to Expert Testimony on But-for Causation in
Litigation Malpractice, 40 Tex. Tech. L. Rev. 151, 165 (Fall 2007).

       Here, to the extent that the trial court ruled that the client could not use
the trial-within-a-trial method to prove “what result should have occurred” had
the Hardwick action been timely filed, the trial court erred. Carbone, 151 N.H.
at 528 (quotation and ellipsis omitted). This method was an acceptable means
of proving proximate cause in the client’s legal malpractice claim. See
McIntire, 149 N.H. at 165-66.

       We do not share the attorney’s interpretation of the client’s appellate
argument. According to the attorney, the client’s appellate argument “is that
he had disclosed experts to prove proximate cause” in his legal malpractice
claim. To the contrary, we believe that the client has argued that he disclosed
sufficient experts to prove his underlying timber trespass claim and that he
does not need a legal expert to prove proximate cause in his legal malpractice
claim because he will rely upon the trial-within-a-trial method to prove this
element.

     Because the trial court did not address the issue, we do not opine as to
whether expert testimony is necessary in this case to prove that the attorney



                                         5
breached the applicable standard of care. See Yager, 166 N.H. at 573-74
(eschewing a per se rule that expert witness testimony is not required to prove
a breach of the standard of care when a legal malpractice claim is premised
upon the failure to file a claim within an applicable statute of limitations).

II. The Dismissal of the Case Against the Law Firm

      A. Relevant Facts

       In May 2015, the attorney filed a motion requesting that the court revisit
the motion to dismiss upon which the trial court had only partially ruled in
2013. The attorney asked the court to rule upon the first ground asserted in
the motion to dismiss – requesting dismissal because the client had failed to
provide requested discovery. There is no objection to the May 2015 motion in
the record submitted on appeal. On July 9, 2015, the trial court issued an
order stating that the attorney’s May 2015 motion was “moot.” On July 27, the
court clarified that the May 2015 motion was granted as to the law firm, and,
on July 28, the court issued an order reiterating that the motion was moot as
to the attorney and granted as to the law firm. The record on appeal does not
include any motions to reconsider the trial court’s July 9, 27 or 28 orders.

        Also on July 27, the client filed an appeal of the trial court’s grant of
summary judgment for the attorney. On August 18, we ordered the client to
file a brief memorandum addressing whether the superior court proceeding had
been concluded as to both defendants and, therefore, whether his appeal was
from a final, as opposed to an interlocutory, order. See Germain v. Germain,
137 N.H. 82, 84 (1993) (when trial court issues order entering judgment with
respect to some but not all parties to the action, or deciding some but not all
issues or claims, supreme court considers appeal from such order to be
interlocutory).

       On September 1, the client responded by stating that, “[a]lthough there is
some question as to whether the summary judgment order on appeal in this
docket resolved the claims against all defendants,” he had filed an appeal of the
trial court’s July 27 and July 28 orders dismissing his claim as to the law firm,
and that “[t]his concludes the Superior Court action as to both defendants and
permits this Court to hear the appeals.” The client’s appeal of the court’s July
27 and July 28 orders was docketed as a supplement to his appeal of the trial
court’s decision granting summary judgment to the attorney, and his appeal
was accepted on September 4. Because the law firm never responded to our
orders regarding its intent to participate in this appeal, by order dated
December 23, we deemed it to be a non-participant in the appeal.




                                        6
      B. Analysis

      We review the trial court’s decision to grant the motion to dismiss as to
the law firm on the ground that the client failed to provide discovery under our
unsustainable exercise of discretion standard. Yager, 166 N.H. at 572.

        The client first argues that the trial court lacked jurisdiction to issue its
July 27 and July 28 orders because, by filing his appeal with the requisite
filing fee, he perfected it, which, he contends, vested exclusive jurisdiction in
this court. See Appeal of Public Serv. Co. of N.H., 130 N.H. 285, 297 (1988).
He asserts that, because the court’s summary judgment order was a final
decision on the merits that resolved the case with respect to both defendants,
the trial court lacked subject matter jurisdiction to address the pending motion
to dismiss. We disagree.

       As the record reflects, the trial court’s summary judgment order resolved
the case with respect to the attorney, but did not resolve it with respect to the
law firm. Thus, when the client filed his appeal on July 27, it was an
interlocutory appeal. See Germain, 137 N.H. at 84; see also Sup. Ct. R. 8
(pertaining to an interlocutory appeal from ruling). Accordingly, the client’s
July 27 appeal of the trial court’s summary judgment order did not deprive the
trial court of jurisdiction to address the motion to dismiss then pending against
the law firm. See Appeal of Public Serv. Co., 130 N.H. at 297 (explaining that
the “lower tribunal is not prohibited by the general rule [regarding perfecting
an appeal] from passing on collateral, subsidiary or independent matters
affecting the case” (quotation omitted)).

       The client next argues that, having issued its July 9 order declaring the
motion to dismiss moot, the trial court erred by sua sponte granting the motion
to dismiss as to the law firm. But see Merrimack Valley Wood Prods. v. Near,
152 N.H. 192, 203 (2005) (explaining that “[t]here can be no question of the
inherent power of the Court to review its own proceedings to correct error or
prevent injustice” (quotation omitted)). Additionally, the client contends that
the trial court erred by granting the motion to dismiss because the discovery
request, motion to dismiss, and the trial court’s actions violated certain
superior court rules. Specifically, he contends that the discovery request was
infirm because it did not contain the notice required by former Superior Court
Rule 36 (pertaining to interrogatories). He argues that the motion was faulty
because it was not accompanied by an affidavit. See Super. Ct. R. 57
(superseded by Super. Ct. Civ. R. 11). And, he asserts that the trial court’s
orders were procedurally defective because the court did not first make a
finding of discovery abuse, see Super. Ct. R. 35(g)(1) (superseded by Super. Ct.
Civ. R. 21(d)(1)), or grant a conditional default, see Super. Ct. R. 36
(superseded by Super. Ct. Civ. R. 29(c)).




                                          7
       Although the client concedes that he “did not raise these issues himself,”
he argues that “they were indisputably before the trial court.” We disagree that
the issues were “indisputably before the trial court,” and conclude that the
client has failed to preserve these appellate arguments for our review.

        Generally, “parties may not have judicial review of matters not raised in
the forum of trial.” Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).
It is the burden of the appealing party, here the client, to provide this court
with a record sufficient to decide his issues on appeal, as well as to
demonstrate that he raised his issues before the trial court. Id. “Because our
rules affirmatively require the moving party both to provide a sufficient record
on appeal and to demonstrate where each question presented on appeal was
raised below, see Sup. Ct. Rs. 13, 16(3)(b), failure of the moving party to
comply with these requirements may be considered by the court regardless of
whether the opposing party objects on those grounds.” Id.

      The record on appeal does not demonstrate that the client raised any of
these issues in the trial court. Significantly, according to the record submitted
on appeal, the client did not file a motion to reconsider after the trial court
issued its July 27 and July 28 orders. Nor does the record demonstrate that
he objected to the attorney’s May 2015 motion asking the court to revisit the
motion to dismiss. Moreover, the client did not raise any of these arguments in
his objection to the attorney’s 2013 motion to dismiss. The client urges us to
address his arguments under our plain error rule, however, we decline to
exercise our discretion to do so. See Sup. Ct. R. 16-A.

      Although the attorney implies that he is also entitled to dismissal
because the client did not disclose the final survey report of his land surveying
expert until January 14, 2015, which the attorney asserts “was completely
improper,” we decline to address this argument in the first instance.

                                                  Affirmed in part; reversed
                                                  in part; and remanded.

      HICKS, CONBOY, and LYNN, JJ., concurred.




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