Thomason v. Morgan

Filed 7/26/07 Thomason v. Morgan CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Crawford U. Thomason (appellant) appeals the trial courts judgment in favor of Angela L. Morgan and Morgan and Associates (respondents) on his cause of action for legal malpractice.[1] We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On August 15, 2003, appellant filed a complaint against respondents alleging four causes of action: Conversion, declaratory relief, quiet title, and legal malpractice. Appellant claimed that respondents had represented him at various times during 2002 and 2003, and that they were in possession of documents relating to the Crawford U. Thomason Living Trust. He further alleged that respondents had refused to deliver the documents to him and that they had converted the records and assets of the trust to their own use and benefit, in violation of the California Rules of Professional Conduct.

Respondents became involved in the Crawford U. Thomason Living Trust in May 2003 when Carolyn Mosby-Thomason (Carolyn), an attorney who is also appellants daughter-in-law, asked Ms. Morgan for permission to use her conference room to hold a meeting with appellant, appellants son (Carolyns husband), and appellants caregiver. The purpose of the meeting was to discuss amendments to appellants trust that were prepared by Carolyn.[2] Ms. Morgan understood that Carolyn was acting as appellants attorney.

At Carolyns request, Ms. Morgan was present at the meeting. Ms. Morgan did not prepare any of the documents that were discussed. At appellants request, Ms. Morgan read the documents aloud. Appellants caregiver was dissatisfied because she wanted part of the estate to go to her niece. The caregiver stated that she was going to take appellant to another attorney.

Ms. Morgan was also present during part of a second meeting at her office between the same parties where the amended documents were signed. Ms. Morgan again read the documents aloud. Ms. Morgan was not present when appellant signed the documents. She did not retain any of the documents and never received any copies of the documents.

Subsequently, appellant hired an attorney who contacted Ms. Morgan requesting copies of documents relating to the trust. On August 8, 2003, Ms. Morgan replied with a letter stating that she would not release any documents. Shortly thereafter, the underlying lawsuit was filed.

At trial, Ms. Morgan testified that after she wrote the August letter she informed appellants attorney by telephone that she did not have any of the requested documents and that Carolyn had the documents. Appellant never asked Carolyn to give him copies of the documents.

On April 12, 2005, after a court trial, the court found in favor of respondents on all of appellants causes of action. His subsequent motion for a new trial was denied on July 8, 2005. In this appeal, appellant is seeking review of the courts adverse judgment on his claim for legal malpractice.

DISCUSSION

Appellant raises several challenges to the trial courts denial of his claim for legal malpractice. We focus on the issue of damages.

Appellants attorney appeared to concede at the close of trial that he did not incur any compensable damages as a result of respondents conduct:

THE COURT: What I want to hear about is the damages . . . . What are the damages that the defendant may have committed?

MR. SCHNEIDER: Again, the damages in the non-attorney fee, pure sense, are minimal. But that does not

THE COURT: What was the evidence that I heard? Thats my question.

MR. SCHNEIDER: As to damage?

THE COURT: Im not asking what were the damages. The time for presenting evidence has passed. What were the damages as I heard?

MR. SCHNEIDER: As to the actual dollar value, you heard nothing. But I think there is in any

THE COURT: What damages did I hear?

MR. SCHNEIDER: I said nothing.

THE COURT: All right. No damages.

MR. SCHNEIDER: You did not hear anything, but that does not mean that damages are required to establish damage. In other words, monetary damage is not required to establish damage. Damage occurs from the malpractice, per se. It does not have to result in a monetary loss, per se.

THE COURT: How do I determine what kind of a judgment to award?

MR. SCHNEIDER: Even if the Court awards six cents, the old English system, because there has been

THE COURT: Is that what youre asking for?

MR. SCHNEIDER: That will be sufficient.

Appellant does not argue that the trial court erred in failing to award nominal damages. Appellant argues that damages of any kind were simply not required. Appellant is mistaken.

In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorneys negligence. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199, italics added.) If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. . . . [U]ntil the client suffers appreciable harm as a consequence of his attorneys negligence, the client cannot establish a cause of action for malpractice. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.)

In his reply brief, appellant states that respondents incorrectly characterize[] this case as one of professional negligence. This is not a professional negligence case. It is a case of violation by an attorney of her obligation to not represent interests in conflict with the clients interest. He claims the violation occurred by 1) not informing the client of the prior representation of interests adverse to the client . . . , 2) on at least three occasions representing interests in court adverse to the client . . . , 3) refusing to return the clients files to the client when requested . . . , and 4) calling witnesses at trial known to be adverse to the client . . . . Our review of the reporters transcript of the trial contains little if any direct evidence pertaining to the first, second, and fourth allegations.

Even if appellants claim is one for breach of fiduciary duty, and not one for legal malpractice, it would still fail because damages are a required element of this cause of action. To establish a cause of action for breach of fiduciary duty, a plaintiff must demonstrate the existence of a fiduciary relationship, breach of that duty and damages. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 182.) [A] breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence. [Citations.] The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086, italics added.)

Appellant cites to the dissenting opinion in Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1367 (dis. opn. of Johnson, J.) (Jackson), for the proposition that actual damages are not required in cases that involve a breach of fiduciary duty. Jackson does not support appellants position.

The passage appellant cites to in Jackson contains a discussion of Werschkull v. United California Bank (1978) 85 Cal.App.3d 981 (Werschkull). Werschkull did not involve breach of fiduciary duty by an attorney. The issue in Werschkull was whether an award of punitive damages could be supported by an award of actual damages where damages had been found by the jury but the amount of actual damages was unascertainable. (Id. at p. 1002.) The appellate court in Werschkull found that the award of punitive damages was proper, concluding that the jurors finding in this case that plaintiffs suffered actual damages in some unspecified amount as a result of [the defendants] fraudulent acts of concealment, furnishes ample support for their award of punitive damages. (Id. at p. 1004.)

In contrast, in the present case no damages at all were found by the trial court. We therefore hold that appellant failed to prove an essential element of his claim. It is unnecessary for us to address appellants alternative claims of error.

The judgment and the order denying appellants motion for a new trial are affirmed.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] Mr. Thomason died during the pendency of this appeal. His widow has been appointed by the probate court to represent his interests in this appeal.

[2] We refer to Carolyn by her first name for the sake of simplicity.