Garmong v. Silverman C/W 63820 ( 2014 )

 of fiduciary duty against his estranged wife and her attorney. In addition,
Garmong alleged that SDK wrongfully withheld file materials to which he
was entitled.
In two separate orders, the district court granted summary
judgment in the respondents' favor because Garmong did not disclose an
expert witness who could attest to the professional standard of care or
provide additional evidence to support his allegations, and SDK retained
Garmong's documents pursuant to a valid and enforceable retaining lien.
The district court also granted SDK's motion for costs and fees based on
the "prevailing party" provision in the parties' retainer agreement.
Garmong appeals and we affirm.
We review a district court order granting summary judgment
de. novo, Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
(2005), and an award of attorney fees and costs for an abuse of discretion.
Rodriquez v. Primadonna Co., LLC, 125 Nev. 578, 588, 216 P.3d 793, 800
(2009).
The district court correctly held that Counts 3, 4, 5, 6, 10, 11,
12, 13, and 14 sound in legal malpractice and are not so obvious as to
excuse expert witness testimony. "[E]xpert evidence is generally required
in a legal malpractice case to establish the attorney's breach of care."
Allyn v. McDonald, 112 Nev. 68, 71-72, 910 P.2d 263, 266 (1996). In Allyn,
we recognized an exception to this general rule where a lawyer failed to
file suit for a client before the statute of limitations ran out, because "the
applicable statute of limitations was clear and unambiguous" and the
(t
accrual date of the claim was also not subject to question." Id. at 72, 910
P.2d at 266. But the facts alleged to constitute malpractice in this case—
not moving to amend the pleadings to assert fraud against the defendant
SUPREME COURT
OF
NEVADA
(0) I947A
and her lawyer in a divorce proceeding as demanded by the plaintiff—are
a far cry from those in Allyn, involving as they do professional judgment
by the lawyers and an exercise of discretion by the court in allowing or
disallowing amendment. Cf. Grimm v. Fox, 33 A.3d 205, 211, 215 (Conn.
2012) (holding that expert testimony was necessary to establish a prima
facie case of legal malpractice where the attorney's alleged misconduct
involved strategic decisions). Because Garmong did not oppose SDK's
properly supported motion for summary judgment with expert testimony
of his own, at any time during the pendency of this case, the district court
correctly granted summary judgment as to those claims. 1
'We reject Garmong's argument that the district court erred by
failing to state in the pretrial order the expert disclosure deadline on
which he and SDK concurred in their separate case conference report
submissions. Compare NRCP 16 (the scheduling order may include "[t]he
date or dates for conferences before trial, a final pretrial conference, and
trial" and "[a]ny other matters appropriate in the circumstances of the
case," NRCP 16(b)(4), (5)), with Sengbusch v. Fuller, 103 Nev. 580, 581,
747 P.2d 240, 241 (1987) ('[m]ay is to be construed as permissive"). Of
note, while complaining about the preclusion, Garmong never tendered
anything approaching an expert opinion, making his argument that the
expert disclosure deadline prejudiced his position in the case inherently
speculative. See Muhammed v. Wadley Reg'l Med. Ctr. Found., 199 F.3d
440, 440 (5th Cir. 1999) (unpublished) (holding that the district court's
failure to issue a scheduling order was not reversible error because the
appellant "failed to demonstrate how the absence of a scheduling order
may have prejudiced him"); Jackson v. Hopkins Trucking Co., 3 A.3d 1097,
1097 (Del. 2010) (unpublished) (observing that the district court wrote
"N/A" as a deadline for expert reports but "find[ing] no genuine issue of
material fact" partially because the late expert report did not even show
that a duty of care was owed).
SUPREME COURT
OF
NEVADA
3
(0) 1947A
We also affirm the district court's grant of SDK's renewed
motion for summary judgment as to the balance of his claims. This order
was not, as Garmong claims, "immaterial" because "a final judgment
should have been rendered in [his favor]." On the contrary, after giving
Garmong additional time and leave to amend his pleadings, the district
court correctly held not only that Garmong failed to demonstrate that he
was entitled to judgment in his favor as a matter of law, but that he also
failed to adduce competent evidence to establish a genuine issue of
material fact as to the legitimacy of SDK's retaining lien on his files and
as to his fraud and other remaining claims. Because Garmong does not
argue other bases for reversing the second summary judgment order in
favor of SDK, we also affirm that order as correct. See Campbell v.
Baskin, 69 Nev. 108, 120, 242 P.2d 290, 296 (1952) (where an issue "was
not argued in briefs . . . and no authorities are cited by appellant in
support of this contention," it is abandoned and does not require prolonged
consideration); see 10A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure§2713 (3d ed. 1998) ("[W]hen a
court decides to dismiss an action. . . , pending motions for summary
judgment against the claimant may be treated as moot and therefore not
be decided."). Therefore, the district court did not err in denying
Garmong's motion on the merits.
Finally, the district court did not abuse its discretion in
awarding attorney fees and costs to SDK because the parties' retainer
agreement states that "in the event of any lawsuit . . . arising out of our
relationship as attorney and client, the prevailing party shall be entitled
to collect all costs and expenses necessitated by such litigation."
SUPREME COURT
OF
NEVADA
4
(0) 1947A
For the aforementioned reasons, we affirm the orders granting
summary judgment in favor of SDK, denying Garmong's motion for
summary judgment, and awarding attorney fees and costs to SDK.
It is so ORDERED.
Pickering
424
Parraguirre
J.
Saitta
cc: Chief Judge, The Second Judicial District Court
Hon. Charles M. McGee, Senior Judge
Hon. Patrick Flanagan, District Judge
Hon. Scott N. Freeman, District Judge
Carl M. Hebert
Bailey Kennedy
Lemons, Grundy & Eisenberg
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1947A