Rivers v. Moore, Myers & Garland, LLC, Supreme Court of Wyoming, Appellate Division, July 28, 2010.
Facts: Rivers alleged that the Defendants committed malpractice by failing to adequately warn him of the subject property’s development restrictions, and by delaying in taking action on his behalf to address those development issues.
The trial court granted summary judgment due to RIvers’ inability to establish that his alleged damages were proximately caused by the Firm’s negligence. Rivers appealed.
Issue: How does a plaintiff successfully bear its burden of establishing causation between his damages and his former attorney’s negligent conduct?
With regard to proximate cause, the Appellate Division noted:
As observed by both Rivers’ own expert and the real estate attorney from which Rivers sought a second opinion, the restrictive covenants governing Lot 7 limit the size of any building on Lot 7 to 4,200 square feet. There is simply no indication in the record that if the Firm had performed its duties differently or more expeditiously that Smith’s would have agreed to construction of a building that is over twice the size of the building permitted by the covenants.
Moreover, the Appellate Division noted that Rivers’ expert’s opinion lacked foundation, and therefore, was not admissible:
It would be helpful to the trier of fact if the expert opinion could explain how the Defendant’s breach of the standard of care caused the Plaintiff to not be able to build a larger building. The regulations prohibiting a 10,000 square foot building were a known limitation when the Plaintiff purchased the lot…The expert has not explained how the Defendants’ efforts would have made the desired change of heart happen. As a result, his bald assertion that the Defendants’ negligence caused the Plaintiff’s damages is a conclusion unsupported by foundational facts and is inadmissible…Further  Rivers has not designated an expert to testify as to the basis for quantifying the percentage chance that may have been lost by the Firm’s alleged malpractice.
Accordingly, the Appellate Division affirmed the trial court’s summary judgment.
Lesson: It is a plaintiff’s burden to establish proximate cause by way of credible evidence, through pleadings, depositions, answers to interrogatories, affidavits, and/or expert opinion based upon admissible facts.