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                                                              No. 99-598

                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           2000 MT 181N



                                                          LES HUDSON,

                                                       Plaintiff/ Appellant,

                                                                      v.

                                                            JOCK WEST,

                                                    Defendant/ Respondent.

                 APPEAL FROM: District Court of the Thirteenth Judicial District,

                                         In and for the County of Yellowstone,

                                The Honorable G. Todd Baugh, Judge presiding.



                                                  COUNSEL OF RECORD:

                                                            For Appellant:

                                         Matthew J. Sisler, Missoula, Montana

                                                          For Respondent:

               James A. Patten, West, Patten, Bekkedahl & Green, Billings, Montana

                                       Submitted on Briefs: December 7, 1999


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                                                      Decided: July 18, 2000

                                                                    Filed:

                              __________________________________________

                                                                    Clerk



Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Appellant, Les Hudson (Hudson), brought this action in the Thirteenth Judicial District
Court, Yellowstone County, to recover damages from respondent, Jock B. West (West),
for alleged professional negligence in West's representation of Hudson. The District Court
held that Hudson failed to establish that he suffered any injury from the alleged legal
malpractice, and granted West's motion for summary judgment. Hudson appeals the
District Court's decision. We Affirm.

¶3 The issue on appeal can be restated as follows:

        Did Hudson meet his burden of establishing, through substantial evidence, that a
        genuine issue of material fact existed to defeat West's motion for summary
        judgment?

                                               FACTUAL BACKGROUND

¶4 On July 12, 1993, the City of Billings charged Hudson with the misdemeanor offenses
of assault and disorderly conduct. Hudson retained attorney West to represent him in the
matter. Hudson appeared and was arraigned on the charges in Billings City Court on July
29, 1993. At the arraignment, Hudson entered a not guilty plea and requested a trial by
jury. An omnibus hearing was later set for August 17, 1993. Prior to the omnibus hearing,

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West learned that the August 27, 1993 trial date had been reset for December 9, 1993. On
August 17, 1993, neither West nor Hudson appeared at omnibus, as a result, the court
converted the jury trial to a bench trial for the same date. On August 20, 1993, West wrote
to Hudson, informing him that trial was reset for December 9, 1993.

¶5 Between August and September, West entered into discussions with the City
Prosecutor concerning a plea agreement for Hudson's case. Eventually, an agreement was
reached whereby the City would amend the assault charge to disorderly conduct, to which
Hudson would plead guilty. In addition, Hudson would forfeit bond to the originally
charged offense of disorderly conduct. The net effect of the agreement left Hudson
convicted of one charge of disorderly conduct. On December 9, 1993, Hudson entered a
change of plea in Billings City Court pursuant to the parties' plea agreement. On
December 9, 1996, Hudson filed the instant lawsuit against West alleging legal
malpractice. On July 26, 1999, the District Court granted West's motion for summary
judgment. Hudson now appeals that ruling to this Court.

                                                 STANDARD OF REVIEW

¶6 Summary judgment eliminates the burden and expense of unnecessary trials. Berens v.
Wilson (1990), 246 Mont. 269, 271, 806 P.2d 14, 16. Summary judgment is appropriate
when no genuine issue of material fact exists and the movant is entitled to judgment as a
matter of law. Rule 56, M.R.Civ.P. The movant has the initial burden of demonstrating the
absence of a genuine issue of fact. Toombs v. Getter Trucking, Inc. (1993), 256 Mont.
282, 284, 846 P.2d 265, 266. Once the movant meets its burden, the burden shifts to the
opposing party to show that a genuine issue of material fact exists. Fenger v. Flathead
County (1996), 277 Mont. 507, 510, 922 P.2d 1183, 1184. The opposing party must
present substantial facts which demonstrate that genuine issues of material fact remain for
trial. Wangen v. Kecskes (1993), 256 Mont. 165, 172, 845 P.2d 721, 726.

¶7 In order to meet its burden, the opposing party must present substantive evidence of the
existence of material facts. Klock v. Town of Cascade (1997), 284 Mont. 167, 174, 943
P.2d 1262, 1266. It cannot rely upon mere denial, speculation, or conclusory statements.
Klock, 284 Mont. at 174, 943 P.2d at 1266. "The opposing party's facts must be material
and of a substantial nature, not fanciful, frivolous, gauzy, nor merely suspicious." Fleming
v. Fleming Farms, Inc. (1986), 221 Mont. 237, 241, 717 P.2d 1103, 1105. All reasonable
inferences from the record, however, will be drawn in favor of the non-moving party.
Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069.


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¶8 We review a district court's decision on summary judgment de novo and apply the same
Rule 56, M.R.Civ.P., criteria used by that court. Swank v. Chrysler Ins. Corp. (1997), 282
Mont. 376, 379, 938 P.2d 631, 633.

                                                            DISCUSSION

¶9 Did Hudson meet his burden of establishing, through substantial evidence, that a
genuine issue of material fact existed to defeat West's motion for summary judgment?

¶10 Hudson argues on appeal that the District Court erred by granting West summary
judgment, because the court relied upon assumptions of evidence not contained within the
record. Mainly, that the statutorial safeguards, in place to protect criminal defendants,
were followed. Under § 46-17-203, MCA, a city court may only accept a guilty plea if:

        (a) . . . the defendant enters a plea of guilty in open court; and

        (b) the court has informed the defendant of the consequences of the plea and of the
        maximum penalty provided by law that may be imposed upon acceptance of the plea.

        (2) A plea of guilty in a . . . city court . . . waives the right to trial de novo in district
        court. A defendant must be informed of the waiver before the plea is accepted, and
        the justice shall question the defendant to ensure that the plea and waiver are entered
        voluntarily.

Hudson asserts that his alleged ignorance of his jury trial right resulted in the harm of his
conviction. Hudson, however, offers no evidence of why he would have received a better
result instead of a worse one. He was facing a potential conviction of both assault and
disorderly conduct.

¶11 Normally, issues of negligence are questions of fact not readily susceptible to
summary adjudication. Brohman v. State (1988), 230 Mont. 198, 202, 749 P.2d 67, 70. In
cases where reasonable minds could reach but one conclusion, however, questions of fact
may be determined as a matter of law. Brohman, 230 Mont. at 203, 749 P.2d at 70.
Summary judgment favoring a defendant is proper where a plaintiff fails to establish an
element material to the negligence. Bickler v. The Racquet Club Heights Assoc. (1993),
258 Mont. 19, 23, 850 P.2d 967, 970. To recover damages in a legal malpractice claim a
plaintiff must establish all of the following:

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        (1) the professional owed him a duty;

        (2) the professional failed this duty;

        (3) plaintiff suffered injury; and

        (4) the professional's conduct was the proximate cause of the injury.

        Merzlak v. Purcell (1992), 252 Mont. 527, 529, 830 P.2d 1278, 1279.

¶12 Hudson fails to present substantial evidence of how West's conduct caused him injury.
All of Hudson's alleged injuries flow from the fact that he pled guilty to disorderly
conduct and forfeited his bond pursuant to the negotiated plea agreement. Hudson's
alleged injuries, however, amount to nothing more than mere speculation. Hudson offers
no substantial evidence of how he would have obtained a better result from a jury trial.
Instead, Hudson merely asserts injury. The record, however, is devoid of any substantial
evidence of actual injury caused by West's legal representation of Hudson.

¶13 Further, Hudson fails to establish that he did not knowingly waive his right to a jury
trial. Without evidence to the contrary, the District Court was justified in presuming that
legal procedures were followed in the normal course of court proceedings.

¶14 Hudson's failure to establish injury is fatal to his alleged attorney malpractice claim.
Merzlak, 252 Mont. at 529, 830 P.2d at 1279. Hudson failed to meet his burden of
establishing the existence of a material fact able to defeat West's motion. The District
Court order granting summary judgment to West is affirmed.

                                                /S/ WILLIAM E. HUNT, SR.

                                                               We Concur:

                                               /S/ W. WILLIAM LEAPHART

                                                      /S/ KARLA M. GRAY

                                                    /S/ JAMES C. NELSON


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                                                        /S/ JIM REGNIER




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