SCOVT affirms summary judgment dismissing legal malpractice claim for lack of evidence of causation.

Stephan Palmer, Sr. v. Mark Furlan and State of Vermont, 2019 VT 42 [filed 6/21/2019]

SKOGLUND, J. In this matter, the trial court entered summary judgment on behalf of appellee, Attorney Mark Furlan. Appellant, Stephan Palmer, Sr., appeals this order, arguing that the trial court erred when it determined that appellant’s claim failed as a matter of law on causation grounds. We conclude that summary judgment was appropriate and affirm

Attorney Furlan, an ad hoc public defender, was assigned to represent appellant in PCR proceedings. Appellant  alleged legal malpractice  because Attorney Furlan did not  more aggressively attempt to get the PCR court to act in an expedited manner  in approving the stipulation. that would have resulted in his immediate release

We conclude that, even if we were to accept for the sake of argument that appellant had established that Attorney Furlan was under a duty to ask the PCR court to expedite its consideration of the parties’ stipulation motion and that Attorney Furlan had breached said duty, appellant’s negligence claim fails as a matter of law because he has not established that Attorney Furlan’s alleged breach was the proximate cause of his alleged damages.

“[C]ausation requires both ‘but-for’ and proximate causation.” Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208.

“But-for” causation “requires a showing that the harm would not have occurred ‘but for’ the defendant’s conduct such that the tortious conduct was a necessary condition for the occurrence of the plaintiff’s harm.” Ziniti, 2019 VT 9, ¶ 15 (quotation omitted).

Proximate cause, on the other hand, “requires a showing that the defendant’s negligence was legally sufficient to result in liability in that the injurious consequences flowed from the defendant’s conduct and were not interrupted by some intervening cause.” Id. (quotation omitted). And, “[a]lthough proximate cause ‘ordinarily’ is characterized as ‘a jury issue,’ it may be decided as a matter of law where ‘the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.’ ” Collins, 2007 VT 9, ¶ 8

Appellant has not proffered any evidence to establish that the PCR court would have, had Attorney Furlan proposed an expedited timeline due to the case’s circumstances, moved the hearing to an earlier date or rendered a speedier decision. The Appellant’s timeline is based in speculation and supposition, rather than specific facts/. it would require this Court, and the trial court, to speculate as to how judges make decisions and what decisions they reasonably would have made in these circumstances.Appellant’s argument simply leaves too much to speculation, which is something this Court and trial courts will not do when examining a motion for summary judgment.

EATON, J., concurring. I agree with the outcome reached by the majority affirming the dismissal of appellant Stephan Palmer, Sr.’s negligence claim against his criminal defense attorney because the claim rests upon speculation concerning the workings of the court in approving the proposed stipulation dismissing the post-conviction relief (PCR) claim. I write separately to point out additional concerns not addressed by the majority.

The PCR court did not have authority under 13 V.S.A. § 7042, or Rule 35, to reduce Palmer’s sentence based solely upon an untimely agreement of counsel to do so. The parties cannot confer authority upon the court to take an action simply through their agreement that the court has the power to do it..

I agree fully with the trial court here that execution of this stipulation by the PCR court was far more than a ministerial act. Thus, the argument that “any reasonably competent” judge would have advanced the case on the docket, and signed the stipulation, is even more speculative than the majority’s decision suggests

Finally, that a judge ultimately signed the stipulation when he did does not mean the stipulation would have been signed sooner, or at all, if it had been presented at an earlier time.

For these reasons, I concur in the outcome. I am authorized to state that Justice Carroll joins this concurrence.

SCOVT NOTE. In the PCRcontext a defendant claiming ineffective assistance of counsel need prove only a "reasonable probability" that but for counsel's unprofessional errors, the result of the proceeding would have been different.  Even so the Court has required evidence that demonstrates or predicts with specificity how the result would have been different. See In Re Burke, 2019 VT 28 (affirms summary judgment that there was no ineffective assistance of counsel, because alleged professional errors did not prejudice result).