Feldman v. Coggin

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Robert E. Feldman and Lois J. Feldman, Appellants,

v.

Gary P. Coggin, Respondent.

Appellate Case No. 2017-000242

Appeal From Beaufort County
Marvin H. Dukes, III, Special Circuit Court Judge

Unpublished Opinion No. 2019-UP-261
Submitted June 4, 2019 – Filed July 17, 2019

AFFIRMED

Thomas A. Pendarvis and Christopher W. Lempesis, Jr.,
both of Pendarvis Law Offices, P.C., of Beaufort, for
Appellants.

M. Dawes Cooke, Jr. and Jeffrey Michael Bogdan, both of
Barnwell Whaley Patterson & Helms, LLC, of Charleston,
for Respondent.
PER CURIAM: In this legal malpractice action, Appellants Robert E. Feldman
and Lois J. Feldman (the Feldmans) challenge the circuit court's order granting
summary judgment to Respondent Gary P. Coggin. We affirm.

I. Issues of Fact

The Feldmans argue summary judgment was improper because there were
factual issues concerning whether Coggin's alleged negligence diminished the
settlement value of their underinsured motorist (UIM) claims. We disagree.

"In an action for legal malpractice, the claimant must prove four elements: (1)
the existence of an attorney-client relationship; (2) breach of a duty by the attorney;
(3) damage to the client; and (4) proximate causation of the client's damages by the
breach." McNair v. Rainsford, 330 S.C. 332, 342, 499 S.E.2d 488, 493 (Ct. App.
1998). "A plaintiff in a legal malpractice action must generally establish the standard
of care by expert testimony." Id. at 342, 499 S.E.2d at 494; see also Mali v. Odom,
295 S.C. 78, 80, 367 S.E.2d 166, 168 (Ct. App. 1988) ("A plaintiff in a legal
malpractice case must ordinarily establish by expert testimony the standard of care,
unless the subject matter is of common knowledge to laypersons.").

"Furthermore, a claimant is required to demonstrate that 'he or she "most
probably would have been successful in the underlying suit if the attorney had not
committed the alleged malpractice."'" Stokes-Craven Holding Corp. v. Robinson,
416 S.C. 517, 525, 787 S.E.2d 485, 489 (2016) (emphasis added) (quoting Doe v.
Howe, 367 S.C. 432, 442, 626 S.E.2d 25, 30 (Ct. App. 2005)). As to loss of
settlement value, this court has held,

The client's burden of establishing proximate cause in a
legal malpractice action requires that he prove that he
would have obtained a better result in the underlying
matter if the attorney had exercised reasonable care. The
burden does not necessarily compel the client to
demonstrate that he would have won the underlying case.
Rather, it is enough for the legal malpractice plaintiff to
show that he has lost a valuable right; e.g., the settlement
value of the underlying case. Stated otherwise, "the client
need not show a perfect claim. But the client must show
at least that he has lost a probability of success as a result
of the attorney's negligence."
Doe, 367 S.C. at 446, 626 S.E.2d at 32 (emphasis added) (quoting David A. Barry,
Legal Malpractice in Massachusetts: Recent Developments, 78 Mass. L. Rev. 74, 79
(1993)).

In Hall v. Fedor, this court held that the plaintiff "could satisfy the 'most
probably' requirement and defeat [the defendant's] summary judgment motion by
establishing he 'most probably' would have received a larger settlement than [the
settlement obtained by the defendant] or that he 'most probably' would have
prevailed on the underlying claim at trial." 349 S.C. 169, 175, 561 S.E.2d 654, 657
(Ct. App. 2002) (emphasis added). However, the court held that the plaintiff failed
to meet this standard: "[C]onsidering the absence of any admissible evidence
presented by [the plaintiff], and in light of the evidence presented by [the defendant],
[the plaintiff] failed to show he 'most probably' would have received a settlement
amount greater than [the amount obtained by the defendant]." Id. at 177, 561 S.E.2d
at 658.

Here, the Feldmans likewise failed to present any evidence showing that they
most probably would have obtained more than $25,000 to settle their UIM claims.
First, the Feldmans presented no evidence that Coggin failed to serve Dickenson
with the complaint before the statute of limitations expired or that his failure to file
the affidavit of service diminished the settlement value of the case. Neither Liberty
Mutual's answer nor its motion to dismiss the case included specific facts indicating
how service of process was deficient, and the record does not indicate that Liberty
Mutual submitted any supporting affidavits or other evidence or even amended its
answer to assert the statute of limitations before the case was settled; therefore,
Liberty Mutual waived this defense. See Unisun Ins. v. Hawkins, 342 S.C. 537, 542–
43, 537 S.E.2d 559, 562 (Ct. App. 2000) (holding that the defendant waived the
defense of insufficiency of service of process by failing to specify any defects in the
service of process and thereby also waived his statute of limitations defense).

Notwithstanding the lack of merit to Liberty Mutual's motion to dismiss, the
attorney who took over representation of the Feldmans after Coggin filed his motion
to be relieved, Samuel Bauer, accepted Liberty Mutual's $25,000 settlement offer.
The record indicates Bauer's recommendation to accept this offer was based on the
mistaken assumption that Liberty Mutual's motion to dismiss had merit. In the
expert affidavit attached to the Feldmans' malpractice complaint, Bauer stated that
Coggin's failure to timely serve Dickenson precluded the Feldmans' recovery of a
judgment against Dickenson.
As to the Feldmans' assertion that Coggin failed to adequately prepare the
UIM case "for settlement, mediation[,] and trial," Bauer did not include in his
affidavit the standard of care for case preparation or otherwise address the alleged
failure of Coggin to adequately prepare the UIM case. In fact, the Feldmans
presented no evidence establishing the standard of care or Coggin's breach of that
standard. It was not until Coggin filed his summary judgment motion alerting the
Feldmans to this court's precedent in Unisun that the Feldmans even asserted the
claim that Coggin failed to adequately prepare the UIM case. Moreover, it was not
until after the circuit court conducted a hearing on the summary judgment motion
that the Feldmans sought Coggin's consent to amend their complaint to add the new
failure-to-prepare allegations. The statutory requirement for an expert affidavit to
be attached to a malpractice complaint would be rendered meaningless if the
Feldmans were allowed to proceed on this new theory of liability without a
supporting sworn statement from an expert. See S.C. Code Ann. 15-36-100(B)
(Supp. 2018) (requiring the plaintiff in a professional negligence action to "file as
part of the complaint an affidavit of an expert witness [that] must specify at least one
negligent act or omission claimed to exist and the factual basis for each claim based
on the available evidence at the time of the filing of the affidavit"); § 15-36-100(F)
(authorizing the dismissal of a complaint for failure to timely file the expert's
affidavit); Ranucci v. Crain, 409 S.C. 493, 509, 763 S.E.2d 189, 197 (2014) ("[T]he
General Assembly sought to promote tort reform by creating a more efficient process
in resolving all professional negligence cases by enacting section 15–36–100.").

Additionally, the Feldmans presented no evidence to refute Coggin's
testimony that Bob's golfing activities greatly compromised the value of his UIM
claim and that Liberty Mutual's counsel questioned Bob about these activities during
Bob's deposition. Coggin's testimony also belies the Feldmans' assertions that Bob's
medicals exceeded $100,000 and his lost wages exceeded $200,000. During
Coggin's deposition, the Feldmans' counsel attempted to elicit testimony that Bob's
medical expenses exceeded $100,000 based on one of the settlement demand letters
Coggin had written; however, Coggin indicated the amounts stated in the demand
letters were just estimates, and he later clarified that he was estimating the
impairment value at $100,000 and future medicals at $60,000. The Feldmans
presented no evidence to refute this testimony.

Coggin also stated that Bob would evade Coggin's questions about whether
Bob had actually worked before the accident and the amount he earned. Again, the
Feldmans did not present any evidence to refute this testimony. While the Feldmans
point to Coggin's settlement demand letters,1 these letters do not serve as evidence
of the actual amounts of medicals and lost wages. Likewise, the Feldmans presented
no evidence refuting Coggin's testimony that Bob was unwilling to pay the
substantial expenses necessary to prepare his case for trial.

Based on the foregoing, the circuit court properly granted summary judgment
to Coggin. See David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 250, 626 S.E.2d 1,
5 (2006) ("[S]ummary judgment is completely appropriate when a properly
supported motion sets forth facts that remain undisputed or are contested in a
deficient manner."); Sims v. Amisub of S.C., Inc., 408 S.C. 202, 208, 758 S.E.2d 187,
190–91 (Ct. App. 2014) ("Once the moving party carries its initial burden, the
opposing party must come forward with specific facts that show there is a genuine
issue of fact remaining for trial." (quoting Sides v. Greenville Hosp. Sys., 362 S.C.
250, 255, 607 S.E.2d 362, 364 (Ct. App. 2004))); Eadie v. Krause, 381 S.C. 55, 64
n.5, 671 S.E.2d 389, 393 n.5 (Ct. App. 2008) ("[T]o survive a motion for summary
judgment, the plaintiff must offer some evidence that a genuine issue of material fact
exists as to each element of the claim unless that element is either uncontested or
agreed to by stipulation; otherwise, the plaintiff cannot meet his burden of proof and
the claim may be determined as a matter of law by the trial judge." (emphasis
added)); see also Robinson, 416 S.C. at 525, 787 S.E.2d at 489 ("[A] claimant is
required to demonstrate that 'he or she "most probably would have been successful
in the underlying suit if the attorney had not committed the alleged malpractice."'"
(quoting Doe, 367 S.C. at 442, 626 S.E.2d at 30)); Hall, 349 S.C. at 177, 561 S.E.2d
at 658 (affirming summary judgment against a malpractice plaintiff after noting he
presented no admissible evidence and concluding that in light of the defendant's
evidence, the plaintiff "failed to show he 'most probably' would have received a
settlement amount greater than [the amount obtained by the defendant]").

II. Rule 56(f) Affidavit/Discovery

The Feldmans also argue that summary judgment was inappropriate given
counsel's submission of a Rule 56(f) affidavit explaining that discovery was
incomplete. We disagree.

1
The record includes a letter from Coggin to Liberty Mutual's counsel that is not a
demand letter but merely a cover letter referencing enclosed copies of Bob's medical
bills. Upon reviewing this letter to refresh his recollection, Coggin testified that
Bob's post-accident medical bills amounted to $47,450.
Rule 56(f), SCRCP, allows, but does not require, the circuit court to grant a
continuance or deny summary judgment:

Should it appear from the affidavits of a party opposing
the motion that he cannot for reasons stated present by
affidavit facts essential to justify his opposition, the court
may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make
such order as is just.

(emphases added). Therefore, it is within the circuit court's discretion to grant relief
based on counsel's affidavit. Cf. Kingdomware Techs., Inc. v. United States, 136 S.
Ct. 1969, 1977 (2016) (discussing statutory construction and stating that the word
"may" implies discretion).

Further, "[a] party claiming summary judgment is premature because they
have not been provided a full and fair opportunity to conduct discovery must advance
a good reason why the time was insufficient under the facts of the case . . . ." Guinan
v. Tenet Healthsystems of Hilton Head, Inc., 383 S.C. 48, 54, 677 S.E.2d 32, 36 (Ct.
App. 2009). Moreover, "the nonmoving party must demonstrate the likelihood that
further discovery will uncover additional relevant evidence and that the party is 'not
merely engaged in a "fishing expedition."'" Dawkins v. Fields, 354 S.C. 58, 69, 580
S.E.2d 433, 439 (2003) (quoting Baughman v. Am. Tel. and Tel. Co., 306 S.C. 101,
112, 410 S.E.2d 537, 544 (1991)).

Here, on February 29, 2016, after Coggin had filed his answer and very little
discovery had been conducted, the Feldmans filed a request to transfer this action
from the general docket to the jury trial roster pursuant to Rule 40(e)(1), SCRCP,2
on the ground that the case was more than nine months old. In response to this

2
Rule 40(e)(1) states, in pertinent part,

No earlier than 9 months after the case was filed, any party
in any case on the General Docket may file or re-file and
serve upon all other parties a Request to Transfer to the
Jury Trial Roster. Within 10 days of the service of the
Request to Transfer all non-moving parties shall file and
serve either an Agreement to Transfer on the date
requested, or a Request for a Scheduling Order . . . .
request, Coggin filed a request for a scheduling order. In this document, Coggin
stated that the parties' previous mediation had been unsuccessful but "despite the fact
that the mediation was still not declared to be at an impasse and before a single
deposition had been taken or even noticed, [the Feldmans] requested that this case
be transferred to the jury trial [roster]."

On March 31, 2016, Judge Mullen conducted a hearing on the requests. Judge
Mullen ruled that the case would not be called for trial before January 1, 2017, and
the parties agreed on additional deadlines prior to the trial date as set forth in Judge
Mullen's scheduling order. The order required, inter alia, the Feldmans to identify
each person they expected to call as an expert at trial by August 1, 2016, and
discovery to be completed no later than December 1, 2016.

It was not until after May 16, 2016, when Coggin filed his summary judgment
motion alerting the Feldmans to this court's precedent in Unisun, that the Feldmans'
counsel filed a Rule 56(f) affidavit seeking a continuance until discovery could be
completed. The affidavit also stated that the Feldmans had "commenced the process
of information exchange with . . . potential expert witnesses and anticipate shortly
having justification to identify [these individuals] as expert witnesses for trial,"
including a "life care plan" expert, a vocational expert, an expert "competent to
provide an additional opinion as to the various acts and omissions of [Coggin that]
constitute legal malpractice," and a present value expert. Counsel asserted,
"Depending on the outcome of pending discovery, the [Feldmans] may seek to
amend their Verified Complaint to include additional specific allegations of legal
malpractice, based on [Coggin's] failures to secure a life care plan expert, a
vocational expert and an expert to reduce the damages to present value,
which . . . resulted in [the Feldmans] losing valuable rights, including diminution in
the settlement value of the case."

However, the affidavit does not explain why the expert affidavit attached to
the Feldmans' complaint does not address Coggin's alleged failure to prepare the
UIM case in a particular fashion before mediation or why they did not have such an
affidavit by the time Coggin filed his summary judgment motion. See § 15-36-
100(B) (requiring the plaintiff in a professional negligence action to "file as part of
the complaint an affidavit of an expert witness [that] must specify at least one
negligent act or omission claimed to exist and the factual basis for each claim based
on the available evidence at the time of the filing of the affidavit"). The absence of
a failure-to-prepare claim in the Feldmans' complaint, the absence of support for
such a claim in the attached expert affidavit, and the Feldmans' motion to transfer
the case to the jury trial roster belie their argument that they simply did not have
enough time to conduct discovery. These factors also belie the likelihood of
successfully obtaining evidence of Coggin's breach of the standard of care for this
type of claim. See Dawkins, 354 S.C. at 69, 580 S.E.2d at 439 ("[T]he nonmoving
party must demonstrate the likelihood that further discovery will uncover additional
relevant evidence and that the party is 'not merely engaged in a "fishing
expedition."'" (quoting Baughman, 306 S.C. at 112, 410 S.E.2d at 544)); Guinan,
383 S.C. at 54, 677 S.E.2d at 36 ("A party claiming summary judgment is premature
because they have not been provided a full and fair opportunity to conduct discovery
must advance a good reason why the time was insufficient under the facts of the
case . . . .").

Based on the foregoing, we conclude that the circuit court did not abuse the
discretion it had under Rule 56(f) by implicitly declining to either continue the case
or deny summary judgment.

III. Allegations of Complaint

In their complaint, the Feldmans alleged that Coggin failed to meet the
minimum standard of care by "other such particulars as the evidence in this case
may demonstrate." They argue that this language placed Coggin on notice of their
failure-to-prepare claim and they were "entitled [to] all reasonable inferences
concerning the allegations of the Verified Complaint, the Motion to Amend, and
from the deposition of [Coggin]."

A plaintiff may not rely on merely his pleadings to defeat a summary
judgment motion. See Skywaves I Corp. v. Branch Banking & Tr. Co., 423 S.C. 432,
453, 814 S.E.2d 643, 654 (Ct. App. 2018) ("Once a party moving for summary
judgment carries the initial burden of showing an absence of evidentiary support for
the nonmoving party's case, the nonmoving party may not simply rest on mere
allegations or denials contained in the pleadings." (quoting NationsBank v. Scott
Farm, 320 S.C. 299, 303, 465 S.E.2d 98, 100 (Ct. App. 1995))).

To the extent the Feldmans argue their complaint's allegations were broad
enough to cover their failure-to-prepare claim such that the circuit court could
consider corresponding testimony, any failure to consider this testimony could not
have prejudiced them because they presented no evidence of the standard of care by
which to determine a breach of a duty. See Judy v. Judy, 384 S.C. 634, 646, 682
S.E.2d 836, 842 (Ct. App. 2009) ("Generally, appellate courts will not set aside
judgments due to insubstantial errors not affecting the result."); Eadie, 381 S.C. at
64 n.5, 671 S.E.2d at 393 n.5 ("[T]o survive a motion for summary judgment, the
plaintiff must offer some evidence that a genuine issue of material fact exists as to
each element of the claim unless that element is either uncontested or agreed to by
stipulation; otherwise, the plaintiff cannot meet his burden of proof and the claim
may be determined as a matter of law by the trial judge." (emphasis added)); McNair,
330 S.C. at 342, 499 S.E.2d at 494 ("A plaintiff in a legal malpractice action must
generally establish the standard of care by expert testimony.").

IV. Order Format

The Feldmans contend that Rule 52(a), SCRCP, required the circuit court to
include findings of fact and conclusions of law in its order granting summary
judgment and its order denying their motion to alter or amend. We disagree. Rule
52(a) states, in pertinent part,

In all actions tried upon the facts without a jury or with an
advisory jury, the court shall find the facts specially and
state separately its conclusions of law thereon, and
judgment shall be entered pursuant to Rule 58. . . .
Findings of fact and conclusions of law are unnecessary
on decisions of motions under Rules 12 or 56 or any other
motion except as provided in Rule 41(b).3

(emphases added). Therefore, we reject the Feldmans' argument that the circuit
court's orders were deficient.

CONCLUSION

Based on the foregoing, we affirm the circuit court's order granting summary
judgment to Coggin.

3
Rule 41(b), SCRCP, addresses involuntary dismissal of a complaint and requires
findings of fact and conclusions of law when the circuit court resolves the factual
issues and renders judgment on the merits. In contrast, the circuit court's ruling on
a summary judgment motion under Rule 56, SCRCP, does not involve resolving
factual issues but merely determines whether any genuine factual issues exist. See
S.C. Prop. & Cas. Guar. Ass'n v. Yensen, 345 S.C. 512, 518, 548 S.E.2d 880, 883
(Ct. App. 2001) ("At the summary judgment stage of litigation, the court does not
weigh conflicting evidence with respect to a disputed material fact.").
AFFIRMED.4

WILLIAMS, GEATHERS, and HILL, JJ., concur.

4
We decide this case without oral argument pursuant to Rule 215, SCACR.