Bloomer v. Gibson

2006 VT 104, 912 A.2d 424, 180 Vt. 397, 2006 Vt. LEXIS 263

• Court: Supreme Court of Vermont
• Decided: October 20, 2006
• Docket: 04-540
• Status: Published

Opinions

Dooley, J.

¶ 1. Plaintiff, Robert A. Bloomer, Jr., brought this action against defendant, David Gibson, for malpractice in connection with his representation of plaintiff in a federal criminal case. The action was eventually tried to court on a theory of breach of contract and resulted in a verdict for defendant. On appeal, plaintiff argues that the court erred in denying him a trial by jury and in applying an “actual innocence” standard to his claims of malpractice and breach of contract. We hold that the court properly decided that plaintiff waived his right to trial by jury and that plaintiff cannot recover the damages he seeks. We affirm.

¶ 2. In 1991, plaintiff was charged in a federal criminal prosecution, and, with the help of his father, retained the services of defendant, David A. Gibson, for representation relating to those charges. Defendant engaged in substantial legal and factual investigation of the case, which eventually went to trial in April 1991. The trial lasted two weeks, and a jury eventually found plaintiff guilty on all six of the federal charges. The judge sentenced plaintiff to 121 months in federal prison. Plaintiff appealed the conviction and sentence to the United States Court of Appeals for the Second Circuit; the government appealed the sentence.

¶ 3. The court of appeals upheld the conviction, United States v. Spencer, 4 F.3d 115 (2d Cir. 1993), but found plaintiff’s sentence had been improperly calculated and remanded for further sentencing. Plaintiff was then sentenced to 188 months in federal prison, which was later affirmed. United States v. Bloomer, 43 F.3d 1457 (2d Cir. 1994) (Table).

¶ 4. Three years after his conviction, plaintiff filed a post-conviction-relief petition in federal court under 28 U.S.C. § 2255, in which he argued that he had received ineffective assistance of counsel by defendant at trial in relation to an improper jury charge. The district court dismissed the complaint, but the court of appeals found the trial court’s jury charge on reasonable doubt was improper and remanded the case to the district court to determine if defendant’s representation was ineffective.¹ Bloomer v. United States, 162 F.3d 187, 195 (2d Cir. 1998).

¶ 5. On remand, in a brief entry order decision, the district court found that defendant had rendered ineffective assistance of counsel for failing to object to the reasonable doubt instruction and, accordingly, granted plaintiff a new trial. Pursuant to the new trial option, plaintiff elected to plead guilty to one count of the original indictment and was sentenced to time served, which amounted to approximately eighty-seven months in prison.

¶ 6. Plaintiff brought this action against defendant in 1999, alleging that defendant committed malpractice in nine specified instances and acted “maliciously, grossly negligently and in utter disregard of the rights of plaintiff.” He alleged that as a result of defendant’s malpractice he was “severely harmed, including spending 7 years in prison.” He sought both compensatory and punitive damages. About ten months later, he moved to amend the complaint to include the following new grounds for relief: intentional infliction of emotional distress, breach of contract, and failure to maintain plaintiff’s client file. The court granted the motion with respect to the intentional infliction of emotional distress claim, but denied it as to the other two claims. As to the breach of contract claim, the court indicated that plaintiff had stated at the hearing on the motion that he added the claim solely to obtain the return of the fee his family paid defendant. The court stated that return of the fee was part of the damages allowed for malpractice.

¶ 7. The court granted defendant’s motion for summary judgment with respect to plaintiff’s malpractice claims.² Recognizing that this decision left plaintiff without a claim for the return of the fees paid to defendant, the court reconsidered the denial of the motion to amend to add a breach of contract claim. On May 6,2001, plaintiff submitted an amended complaint alleging only breach of contract. The complaint stated that “[ijmplicit in the agreement [between plaintiff and defendant] was that [defendant would perform with a minimum level of competence and diligence” and went on to itemize ten specific duties that defendant assumed. It then stated that “[defendant failed to perform to the minimum standards as required by the agreement” and itemized thirteen different instances in which defendant’s representation fell below minimum standards. It asked for damages without specifying an amount. The trial court denied defendant’s motion for summary judgment on the breach of contract claims. The case was tried to court over five trial days in 2004 and 2005. Plaintiff appeals from the Rutland Superior Court decision of November 22,2004, granting judgment to defendant on the breach of contract counts.

¶ 8. On appeal, plaintiff argues that the superior - court erred in holding that he had waived his right to a jury trial, and in repeating that holding in response to his amended complaint, and in adopting an actual innocence rule to grant judgment to defendant on plaintiff’s breach of contract claims. We address these issues.

¶ 9. It is undisputed that plaintiff had a right to trial by jury in this case. Vt. Const, ch. I, art. 12; Vt. Const, ch. II, § 38; V.R.C.P. 38(a). To invoke the right, a plaintiff must demand a jury trial pursuant to our procedural rules. See Muzzy v. Curtis, 127 Vt. 516, 517, 253 A.2d 149, 150 (1969) (“Proper and effective administration of the courts requires that reasonable notice be given of the intention of a party to avail himself of his right, in a civil case, to put his case before a jury.”). Rule 38 of the Vermont Rules of Civil Procedure governs the right to trial by jury and provides that “[a]ny party may demand a trial by jury of any issue triable of right by a jury by (1) serving ... a demand ... not later than 10 days after the service of the last pleading----” V.R.C.P. 38(b) (emphasis added). Failure to serve and file a demand as required by Rule 38(b) is a waiver of the right to trial by jury. Id. 38(d).

¶ 10. Plaintiff did not request a trial by jury in his 1999 complaint, nor did he indicate he desired a jury trial in response to any of defendant’s answers, which were the final pleadings. See V.R.C.P. 7(a) (specifying pleadings). Plaintiff finally submitted a request for trial by jury on April 12, 2000, which the trial court rejected as waived by plaintiff for failure to timely file in accordance with V.R.C.P. 38(b). Subsequently, plaintiff included a jury demand with his amended complaint in May 2001. Upon defendant’s motion, however, the trial court struck that jury demand, holding that where a jury demand has been waived it is not revived in an amended complaint that adds no new issues to a litigation, but merely offers an alternative theory for recovery.

¶ 11. Plaintiff argues on appeal that Rule 38(d) is invalid, or cannot be interpreted to apply to a situation where a plaintiff demands a jury trial three years before trial. He further argues that his right to a jury trial was revived by the filing of the amended complaint.

¶ 12. We reject plaintiff’s argument that the rule is invalid. The initial version of the Vermont Rules of Civil Procedure, including Rule 38 in substantially the same form as it exists today, was adopted in 1971 pursuant to specific authority granted by the Legislature in 12 V.S.A. § 1. See 1969, No. 119, § 1 (amending 12 V.S.A. § 1); Foreward, Vermont Rules of Civil and Appellate Procedure and District Court Civil Rules (1971) (statement of Chief Justice James S. Holden on the history of the rules). Rule 38 provides the procedure for administration of the jury trial right. As we said in Hale v. Melendy, 139 Vt. 28, 30, 421 A.2d 1296, 1297 (1980), the “rules are designed to preserve a litigant’s constitutional right to a jury trial, Vt. Const. ch. II, § 38, while also promoting the effective administration of justice.” More recently, we have noted that “Vermont courts have long exercised the power to adopt administrative rules having an incidental effect on the availability of jury trials in some cases.” In re Vermont Supreme Court Admin. Dir. No. 17, 154 Vt. 392, 399, 579 A.2d 1036, 1040 (1990). Pursuant to that authority, we held in Muzzy, 127 Vt. at 517, 253 A.2d at 150, that rules consistent with the Constitution can require that “reasonable notice be given of the intention of a party to avail himself of his right, in a civil case, to put his case before a jury.” We see no reason to abandon that holding here.

¶ 13. We recognize that plaintiff was required to make his jury demand far in advance of the trial in this case. The court has, however, no way of knowing when trial will be reached, and the date of trial, if a case goes that far, is determined in part by whether the case will be tried to court or to a jury. The identity of the fact-finder, whether judge or jury, will have an influence on how the case is prepared and pretrial proceedings conducted. Thus, it is reasonable for the rules to require identification of the fact-finder early in the case.

¶ 14. Plaintiff failed to request a trial by jury within the required time-frame specified in Rule 38(b) and, as a result, waived his right to a trial by jury in this case, V.R.C.P. 38(d). Although the court has discretion to allow a jury trial where a timely demand is not made, id. 39(b), we find no abuse of that discretion here. The only argument plaintiff made on this point was that he was pro se and unaware of the rule. The court does not abuse its discretion where it enforces the rules of civil procedure equitably, even against a pro se litigant. See Nevitt v. Nevitt, 155 Vt. 391, 401, 584 A.2d 1134, 1140 (1990) (holding that although trial courts may not take unfair advantage of pro se litigants, the trial court is not responsible for offering affirmative help to those appearing pro se).

¶ 15. Plaintiff further argues that even if he did not make a timely demand for a jury trial in his original complaint, his subsequent amended complaint, in which he did demand a trial by jury, was a timely demand under the rules and, as such, the trial court should have provided him with a jury trial on the claims in the amended complaint. Plaintiff contends that because his amended complaint is a “pleading” and because Rule 38(b) allows for a jury demand within ten days of the “last pleading directed to such issue,” his subsequent demand for a jury was sufficient to grant him that right.

¶ 16. The law applicable to this argument is set out in My Sister’s Place v. City of Burlington, 139 Vt. 602, 433 A.2d 275 (1981), where we followed the decisions of the United States Court of Appeals for the Second Circuit under the identical federal rule. There, we held that “ ‘amendments of the pleadings that do not change the issues do not revive this right.’” Id. at 611, 433 A.2d at 281 (internal citations omitted). We went on to explain that “when the matrix of facts pertinent to a complaint are not changed, the addition of a new legal theory for recovery is not sufficient to restore the right to a jury.” Id. My Sister’s Place is consistent with the law as it has developed under the identical federal rule. See 9 C. Wright and A. Miller, Federal Practice and Procedure § 2320, at 154 (2d ed. 1995) (“[I]f the amended ... pleading does not raise a new issue, but merely changes the theory of the case or the relief requested, then a jury trial right waived by a failure to demand in connection with the original pleading is not revived.”); Annot., Rule 38 of Federal Rules of Civil Procedure: Waived Right to Jury Trial as Revived by Amended or Supplemental Pleadings, 18 A.L.R. Fed. 754 et seq. (1974 & Supp. 2005).

¶ 17. Plaintiff has two arguments as to why the amended complaint raised “new issues” and gave him a renewed right to trial by jury, which he timely claimed. The first is that his amended complaint is based on a different legal theory, that is, breach of contract, rather than the malpractice tort theory alleged in the initial complaint. This is, however, exactly the kind of “addition of a new legal theory” that does not give a renewed right to trial by jury under My Sister’s Place. The trial court held: “[A]ll of the so-called contractual duties that the plaintiff raises are also general professional duties of a lawyer. Hence, this action is essentially a tort claim veiled as a breach of contract claim.” As we discuss in more detail in the next section of this opinion, we agree with the trial court’s analysis. A new theory alone does not raise a new issue if it is based on the same matrix of facts. Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1066 (9th Cir. 2005). We reject the argument that the change of theory gave plaintiff a new opportunity to demand a jury trial.

¶ 18. The second argument is that the amended complaint raised new issues by adding specific claims of defendant’s action or inaction that fell below the “minimum standards” required by the employment contract. There were five such actions added by the amended complaint — for example, that “[defendant failed to adequately prepare for plaintiff’s suppression hearing, even failing to identify the leading case on suppression.” The problem with this argument is that neither the specification of malpractice actions in the first complaint, nor the specification of instances of performance below minimum standards in the second complaint, were exhaustive. Thus, the original complaint said that “[i]n his representation of plaintiff, defendant committed malpractice in a number of instances including”', (emphasis supplied), and went on to describe nine instances. The amended complaint said “defendant failed to perform to the minimum standards as required by the agreement including the following instances(emphasis supplied), and went on to describe thirteen instances. Reflecting the open-ended nature of plaintiff’s lists, other instances, such as failure to claim double jeopardy and failure to communicate settlement offers, were added at trial.

¶ 19. We believe that both the complaints addressed only one common matrix of facts — defendant’s representation of plaintiff in his criminal trial and appeal, and in post-trial proceedings. In both complaints, plaintiff alleged that there were many instances of malpractice of which only some were detailed. The second complaint added more detail but not more counts. See Advent Elecs., Inc. v. Buckman, 918 F. Supp. 260, 264 (N.D. Ill. 1996) (finding the amended complaint merely alleges new legal theories and “‘particularized facts,’ rather than new factual issues, and thus cannot revive the waived right to a jury”). We cannot conclude that the amended complaint raised new issues that created a new right to trial by jury.

¶ 20. Plaintiff’s next argument, and the crux of his appeal, involves his claim for breach of contract by legal representation that fell below minimum standards. He argues that the superior court erred in failing to decide that defendant’s substandard representation required that he refund the fees charged for that representation. We affirm the trial court’s rejection of this argument on the ground of lack of causation, although for a different reason than the trial court.

¶ 21. To understand plaintiff’s issue, we start with the two main decisions of the superior court. The first dismissed plaintiff’s malpractice complaint on summary judgment on two related grounds. The court held that plaintiff must be innocent of the crime for which he was charged in order to bring a malpractice action against his criminal defense lawyer, and further held plaintiff’s eventual guilty plea established that he was not innocent as a matter of law. Alternatively, the court held that plaintiff could not show that defendant’s negligence was the proximate cause of plaintiff’s damages, again because the guilty plea established that those damages were caused by plaintiff’s criminal conduct. On this alternative point, the court added:

Although the plaintiff in the instant case has waived any claim for damages arising from his incarceration,... he does seek to recover as a measure of damages on his malpractice claim the attorney’s fees paid to the defendant. However, those attorney’s fees were incurred as a direct result of the defendant’s own criminal conduct, not as a result of the defendant’s alleged inadequate representation. In other words, the defendant’s alleged negligence did not cause the plaintiff to incur these fees, rather, it was his unlawful conduct in the first instance which necessitated that expenditure.

Despite this ruling, the court denied defendant’s summary judgment motion on plaintiff’s amended complaint alleging breach of contract, necessitating the trial on that complaint.

¶ 22. After trial on the breach of contract theory, the court issued a twenty-three page decision, finding against plaintiff on all his claims of substandard representation, except one. The court found that by failing to object to the jury instruction on reasonable doubt, and failing to raise the issue on appeal, “defendant’s representation lacked due care” with respect to this issue. The court went on to hold, however, that plaintiff’s contract claims were actually tort claims and applied the causation standard that it had applied in the summary judgment decision.³ Thus it held that plaintiff could not prevail because he was not “actually innocent of the charges” and could not establish proximate cause.

¶ 23. On appeal, plaintiff attacks primarily the use of the actual innocence rule, but also the decision on causation. His position is:

Appellant seeks only to be made whole, i.e. to recover his fees and expenses incurred in connection with appellee Gibson’s ineffective representation____All of plaintiff’s criminal convictions were reversed solely due to Mr. Gibson’s ineffective assistance____This left appellant in exactly the same position he was before Mr. Gibson had ever entered an appearance — under indictment and facing trial. Any services rendered by Mr. Gibson were thus without value to appellant.

Defendant urges us to adopt the actual innocence rule.

¶ 24. Although in Fitzgerald v. Congleton, 155 Vt. 283, 290, 583 A.2d 595, 600 (1990), we noted in the context of applicable statutes of limitations that “[t]he line that delineates the underlying nature of a cause of action is not always a clearly defined one, particularly in a legal malpractice action,” our more recent cases have held that an action to recover for legal malpractice lies in tort, on the theory of the attorney’s negligence. See Roberts v. Chimileski, 2003 VT 10, ¶ 15, 175 Vt. 480, 820 A.2d 995 (mem.) (“[L]egal malpractice action is at base a negligence action: plaintiff must prove that the attorney was in fact negligent and that this negligence was the proximate cause of plaintiff’s injury.”); Knott v. Pratt, 158 Vt. 334, 335, 609 A.2d 232, 233 (1992) (to recover for legal malpractice, “plaintiff must prove both that defendant was negligent and that the negligence proximately caused plaintiff’s harm”). In both his original complaint, and in the amended complaint, plaintiff alleged that defendant failed to perform “in accordance with established standards of skill and care.” Hedges v. Durrance, 2003 VT 63, ¶ 6, 175 Vt. 588, 834 A.2d 1 (mem.). Plaintiff did not allege that defendant breached any special obligations contained in his employment contract with defendant. Indeed, he could not make such an allegation because the contract was oral and contained no specific or special obligations. In these circumstances, the superior court correctly labeled plaintiff’s amended complaint as containing “a tort claim veiled as a breach of contract claim.” See Chavez v. Saums, 571 P.2d 62, 65 (Kan. Ct. App. 1977) (holding that “[w]hen an act complained of is a breach of specific terms of the contract, without any reference to the legal duties imposed by law upon the relationship created thereby, the action is in contract,” but where “the gravamen of the action is a breach of the legal duty and not the contract itself, the action is in tort”) (internal citations omitted); Johnson v. Carleton, 765 A.2d 571, 573 n.3 (Me. 2001) (directing that legal malpractice claims be analyzed under tort, not contract, where the claim does not refer to an express contract).

¶ 25. Although plaintiff raised tort claims to establish liability, he sought only the return of the fee paid to defendant, damages normally associated with breach of contract. See Restatement (Second) of Contracts § 347(a) (1981) (damages for breach of contract include “loss in the value to him of the other party’s performance caused by its failure or deficiency”). In fact, his argument is that the one breach of duty found by the superior court should entitle him to the return of the entire fee paid to defendant, as if defendant performed no services at all. In effect, the remedy would be a rescission of the employment contract with complete return of plaintiff’s consideration. Plaintiff justifies his right to this remedy on the fact that defendant’s representation brought about no change in his legal situation, as if the contract guaranteed a favorable result.

¶ 26. By narrowing his claim for relief solely to return of the fees paid defendant, plaintiff in essence accepted the ruling of the superior court that he could show no consequential damages in view of his guilty plea and reconviction based upon that plea. In addressing the fees, however, the superior court went further holding that “defendant’s alleged negligence did not cause the plaintiff to incur these fees, rather, it was his unlawful conduct in the first instance which necessitated that expenditure.” In effect, the court found no causal nexus between the fees and the supposed malpractice, and further concluded that the fees were the result of plaintiff’s underlying guilt and were therefore not recoverable. We agree with plaintiff that the superior court’s narrower proximate cause theory based on plaintiff’s reconviction does not cover his claim for return of the fees paid to defendant. Nevertheless, we conclude that plaintiff cannot establish causation for the fees.⁴

¶ 27. The measure of damages for malpractice is “all damages proximately caused by the wrongful act or omission.” 3 R. Mallen & J. Smith, Legal Malpractice § 20.4, at 13 (2006 ed.); see State v. Therrien, 2003 VT 44, ¶ 15, 175 Vt. 342, 830 A.2d 28 (“Malpractice liability cannot arise unless the lawyer’s negligence is a proximate cause of the claimed harm.”). The fees charged by defendant were not caused by defendant’s malpractice; they were charged irrespective of the quality of defendant’s representation. On this point, we distinguish between two types of attorney’s fees. If plaintiff had incurred legal fees to correct the adverse consequences of defendant’s malpractice, those fees might be recoverable because they were “caused by the wrongful act or omission.” Bourne v. Lajoie, 149 Vt. 45, 53 n.3, 540 A.2d 359, 364 n.3 (1987); see Therrien, 2003 VT 44, ¶¶ 19-21 (finding attorney may have been liable for subsequent damages proximately caused by attorney’s negligence). On the other hand, at least where defendant took some action “for which plaintiffi] received some value,” plaintiff cannot recover attorney’s fees paid to defendant.⁵ Ramp v. St. Paul Fire & Marine Ins. Co., 269 So. 2d 239, 246 (La. 1972) (cited and quoted in Bourne).

¶ 28. Here, plaintiff apparently incurred no legal fees in correcting defendant’s error because he was provided counsel at public expense. In any event, he has made no claim for such expenses. Plaintiff received the value of weeks of defendant’s pretrial investigation and trial representation; the quality of his representation fell below acceptable mínimums only with respect to the jury instructions. In such circumstances, plaintiff cannot recover the fees he paid defendant in a malpractice action.

¶ 29. Because we hold that defendant’s malpractice is not the cause of the fees paid to him, we do not decide whether we would adopt the actual innocence rule as an element of a lawyer malpractice action against a criminal defense lawyer.

Affirmed.

1 Plaintiff’s counsel fees for his posLconvietion-relief proceedings as well as his appellate fees on his direct appeal were paid pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, so he did not incur any legal expenses for those actions. See United States v. Bloomer, 150 F.3d 146, 148 (2d Cir. 1998). Accordingly, plaintiffs claim here does not relate to either his appellate or posi^eonviction-relief claims in federal court.

2 Plaintiff’s claims for intentional infliction of emotional distress were dismissed in a separate summary judgment decision on August 9,2001.

3 In essence, the superior court granted summary judgment on the amended complaint, as it had on the original complaint, making unnecessary its determination that defendant’s representation fell below the legal standard because of failure to object to the jury instruction. Normally, we would hold that a party’s failure to challenge a summary judgment decision would prevent a challenge to a later trial judgment which is based on the exact same evidence and reasoning. In this case, however, we will treat plaintiff’s challenge to the trial judgment as also applicable to the summary judgment.

4 The dissent contends that our affirmance of the trial court on the basis of causation alone amounts to an improper “sua sponte” disposition of the case on “grounds of which neither party had notice or an opportunity for briefing or argument.” Post, ¶¶ 31, 30. This contention misstates both the relation of our disposition to that of the trial court and the role of appellate review.

First, the assertion that the parties had no notice of the issue of causation defies the trial court’s order. The portion of the trial court’s decision from which plaintiff now appeals, titled “CAUSATION,” questions in its first sentence whether “plaintiff can prove that he wrongly incurred fees as a result of the defendant’s single malfeasance related to the jury charge.” Additionally, while the order intermixes reference to plaintiff’s guilt with causation, it concludes:

[T]here can be no breach of contract in this case unless [there is] negligence, and there can be no negligence without proximate cause. Ergo, despite the defendant’s malfeasance with respect to the jury charge, the defendant cannot be liable for breach of contract because the plaintiff cannot show that the jury charge error caused his injury.

We agree and find this conclusion dispositive, making the further discussion of plaintiff’s guilt superfluous.

Second, even if we first raised the precise issue on which we affirm, our decision would represent a routine application of the doctrine that this Court “may affirm a trial court's decision if the correct result is reached, despite the fact that the court based its decision on a different or improper rationale.” Sorge v. State, 171 Vt. 171, 174 n.*, 762 A.2d 816, 818 n.* (2000) (citing Bissonnette v. Wylie, 166 Vt. 364, 370, 693 A.2d 1050, 1055 (1997) (‘We agree with the trial court's conclusion, but use a different rationale to reach it.”), and Hudson v. Town of East Montpelier, 161 Vt. 168, 170, 638 A.2d 561, 563 (1993) (“[W]e need not adopt the court's rationale in affirming its conclusion.”)). Hardly a term goes by in which we do not invoke this doctrine to some degree in some case to avoid unnecessary reversals of trial court decisions. See, e.g., McAlister v. Vermont Prop. & Cas. Ins. Guar. Ass’n, 2006 VT 85, ¶ 1, 180 Vt. 203, 908 A.2d 455 (lower court’s interpretation of governing statute was erroneous, but decision affirmed based on alternative interpretation). Indeed, because of the long-standing application of this doctrine, the parties on appeal are expected to identify and address related approaches that would reach the same result as the trial court. In light of the superior court decision, we see no unfairness in expecting them to address issues of causation.

Finally, while we are sensitive to the philosophical arguments of a law review article like that cited by the dissent, we are more persuaded by the critics of such a rigid approach. See S. Cravens, Involved Appellate Judging, 88 Marq. L. Rev. 251, 253 n.4 (2004) (“Milani and Smith take a certain plot of high ground in their process-dominant view, which is of course defensible in many ways, but ultimately I conclude that a solution such as theirs is in the first place unrealistic, due to a lack of resources necessary to achieve it, and is furthermore a bad policy in that it permits bad lawyering to result in bad law, where that eventuality may be avoidable.”).

5 We do not exclude the possibility that there may be a bona fide fee dispute in the course of criminal representation that would give rise to a breach of contract claim that was not a disguised malpractice claim. See, e.g., Bird, Marella, Boxer & Wolpert v. Superior Ct., 130 Cal. Rptr. 2d 782 (Ct. App. 2003). This is not such a ease.