Vermont Human Rights Commission v. Hall, No. 193-3-13 Wncv (Teachout, J., June 25, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 193-3-13 Wncv

VERMONT HUMAN RIGHTS COMMISSION, et al.
    Plaintiffs

           v.

PETER G. HALL, et al.
     Defendants

                                            DECISION
                  Watts Law Firm’s Motion for Summary Judgment on Counterclaim

        This is a collection action filed by judgment creditors of the Elks Club of Hartford,
Vermont. Most plaintiffs in this action were the civil rights plaintiffs, or their attorneys, in the
successful discrimination case against the Elks. Vermont Human Rights Commission v.
Benevolent and Protective Order of Elks, 2008 VT 34, 183 Vt. 606. Defendants are individual
Elks members who may be personally responsible for the Elks’ liability due to its lack of a
corporate charter under the authority of Daniels v. The Elks Club of Hartford, 2012 VT 55, 192
Vt. 14.

         Plaintiff Attorney Norman Watts of the Watts Law Firm, P.C., and its predecessor,
(Watts) defended the Elks until sometime after the Vermont Supreme Court’s 2008 decision
resolving liability against the Elks. At that point, the Elks quit paying Watts’ fees. The
representation then ended and Watts obtained a judgment for the value of unpaid fees. In this
case, Watts seeks to collect on that judgment. Defendant Peter H. Hall (and no other defendant)
filed a counterclaim for legal malpractice, alleging that Watts failed to advise the Elks or its
members of the need to reinstate the Elks’ corporate charter and the potential consequences—
personal liability of individual members—of not doing so.

        Watts’ summary judgment motion related to the counterclaim is pending. He argues that
there is no triable issue that (1) Watts represented the Elks, the unincorporated association, but
not its members or officers, and hence he owed no duty to Mr. Hall, and (2) Watts repeatedly
advised the Elks to reinstate its corporate charter and thus did not fail to provide that advice.

       The Vermont Supreme Court has described the elements of a legal malpractice claim as
follows:

                   In a legal malpractice action, a plaintiff must prove that the attorney was
           in fact negligent and that this negligence was the proximate cause of the
           plaintiff’s injury. Generally, negligence by professionals is demonstrated using
           expert testimony to: (1) describe the proper standard of skill and care for that
           profession, (2) show that the defendant’s conduct departed from that standard of
       care, and (3) show that this conduct was the proximate cause of plaintiff’s harm.
       If the alleged negligent conduct is a matter of judgment unique to that profession,
       the above elements must be established by expert testimony to assist the trier of
       fact in determining negligence.

                There are situations, however, where expert testimony is not needed.
       Where a professional’s lack of care is so apparent that only common knowledge
       and experience are needed to comprehend it, expert testimony is not required to
       assist the trier of fact in finding the elements of negligence.

Estate of Fleming v. Nicholson, 168 Vt. 495, 497–98 (1998) (citations omitted).

       Attorney–client relationship

       The court declines to rule on the issue of whether an attorney–client relationship existed
between Watts and Mr. Hall individually. There is no retention agreement in the record and
other material facts in the record are few. The record is simply too sparse to support a ruling as a
matter of law on what could be a nuanced, disputed issue. Given the ruling below, the issue is
moot.

       Reinstatement of the Elks’ corporate charter

        Mr. Hall’s malpractice claim, as alleged in the counterclaim, is that the corporate charter,
long lapsed prior to the discrimination dispute, needed to be reinstated to protect Elks members
from personal liability, Watts should have so advised the Elks, and he negligently failed to do so.
The material facts, however, are clear, undisputed, and singularly support the opposite scenario:
Watts advised the Elks to reinstate at the inception of the representation and subsequently as the
Elks failed to heed his advice.

        See Letter from Norman E. Watts, Esq., to Peter G. Hall 1–2 (dated May 16, 1997) (“I
reviewed the secretary of state’s website and found that the incorporation expire[d] long ago. It
is important for the Lodge to re-incorporate as soon as possible to protect the individual
members. . . . If you wish me to perform that function, please let me know. Otherwise, I will
assume you are dealing with it.”); Letter from Norman E. Watts, Esq., to Peter G. Hall 1 (dated
April 6, 1999) (reiterating “concern” that incorporation still had not occurred); Deposition
Transcript of Peter Hall at 15, 17, 29, 52–53, 88 (conceding awareness of Watts’
recommendation to reinstate the corporate charter).

        The thrust of Mr. Hall’s response to Watts’ statement of undisputed facts appears to be an
argument that any advice of Watts on the need to reincorporate was insufficient to make Mr. Hall
truly understand the need to do so and the potential consequences of not doing so. See Mr.
Hall’s Response to Watts’ Statement of Undisputed Facts (filed Oct. 23, 2014). The objection
appears to be less about the substance of the advice given and more about the manner by which it
was conveyed. It does not refute undisputed facts that Mr. Watts gave the advice.

       This is insufficient to create a dispute of material fact for purposes of summary judgment.

                                                 2
Mr. Hall has not come forward with any expert testimony (or other evidence) establishing an
applicable standard of care and a breach. The issue of the extent to which a lawyer is reasonably
expected to ensure that a client fully grasps the advice given, or is expected to articulate general
advice into specific advice directed to specific persons, in circumstances such as these is not the
province of laypersons. Here, Mr. Hall asserts that he did not fully “get it” and then attributes
his own inaction to Watts. Such a claim requires expert support that is missing in this case.
Watts is entitled to summary judgment on this basis.


                                             ORDER

       For the foregoing reasons, Watts’ Motion for Summary Judgment is granted.

       Dated at Montpelier, Vermont this ____ day of June 2015.


                                                      _____________________________
                                                      Mary Miles Teachout
                                                      Superior Judge




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