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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Zok v. Collins (2/23/01) sp-5367

Zok v. Collins (2/23/01) sp-5367

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


HASSAN ZOK,                   )
                              )    Supreme Court No. S-9264
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-96-6415 CI
                              )
RICHARD B. COLLINS,           )    O P I N I O N
                              )
             Appellee.        )    [No. 5367 - February 23, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Dan A. Hensley, Judge.


          Appearances: Hassan Zok, pro se, Anchorage. 
D. Scott Dattan, Law Office of D. Scott Dattan, Anchorage, for
Appellee.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION
          Hassan Zok appeals the superior court's denial of his
motion for partial summary judgment in his legal malpractice case
against his former attorney, Richard Collins.  Zok also appeals the
superior court's grant of summary judgment in favor of Collins,
arguing that the superior court erred in concluding that Zok could
not prove his malpractice claim without the use of expert witnesses
and that there were no disputes of material fact in his case.  
          Because material questions of fact were in dispute
concerning Zok's allegations of incompetence on Collins's part, the
superior court properly denied Zok's motion for partial summary
judgment.  But because expert testimony is not required to prove
all aspects of Zok's legal malpractice claim and because Zok has
demonstrated the existence of material questions of fact, the
superior court improperly granted summary judgment against Zok as
to those claims that do not require expert opinion testimony.  We
therefore affirm the denial of Zok's summary judgment motion,
reverse in part the grant of Collins's summary judgment motion, and
remand for further proceedings. [Fn. 1]
II.  FACTS AND PROCEEDINGS
     A.   Facts
          In February 1988 Hassan Zok was detained and assaulted by
State of Alaska airport security officers at Anchorage
International Airport. [Fn. 2]  He was arrested and faced criminal
charges as a result of this incident. 
          Attorney Richard Collins represented Zok in his criminal
case; the charges were later dismissed by the state.  Sometime
thereafter, Zok entered into an oral contract with Collins in which
Collins agreed to represent him on a contingency fee basis in a
civil suit for money damages against the state and the arresting
officers.  This agreement was put into writing and signed by both
parties in 1989.  
          In October 1988 Zok filed a complaint against the state
in which he claimed $10,000,000 in damages for embarrassment and
humiliation, as well as damages for pain and suffering and medical
expenses.  At trial, the jury found that the officers had arrested
Zok illegally, but did not award him money damages. 
          Zok subsequently appealed to this court.  We affirmed the
trial court's judgment as to liability and resolved the damages
issue by awarding him one dollar in nominal damages. [Fn. 3] 
     B.   Proceedings
          Zok filed a malpractice action against Collins in August
1996.  Collins moved for summary judgment in October 1998 on the
grounds of statute of limitations and collateral estoppel.  At the
hearing on this motion in January 1999, the superior court
instructed Collins to "file specific motions" concerning Zok's
"failure to produce any admissible evidence supporting his claim
for malpractice within ten days." 
          On January 19, 1999, Collins filed a revised summary
judgment motion claiming that Zok had not presented the court with
any admissible evidence of malpractice and had failed to designate
any expert witnesses.  Zok opposed Collins's motion and filed a
motion for partial summary judgment in February 1999.  
          In March 1999 the superior court denied Zok's motion and
granted Collins's motion, reasoning that expert witnesses were
required to prove malpractice and damages in the case and that Zok
had neither designated nor offered any expert testimony in his
opposition to Collins's motion.  Zok moved for relief under Civil
Rule 60(b) and for reconsideration; the superior court denied both
motions in April 1999.  The superior court also awarded Collins
$2,066.60 in Civil Rule 82(b)(2) attorney's fees.  Final judgment
was entered on July 12, 1999. 
          Zok appeals.
III. STANDARD OF REVIEW
          We review the grant or denial of summary judgment de novo
to determine whether there are any genuine issues of material fact
and whether the moving party is entitled to judgment as a matter of
law on the established facts. [Fn. 4]  We draw all reasonable
inferences of fact against the moving party and in favor of the
non-moving party. [Fn. 5] 
IV.  DISCUSSION
          A.   Zok Is Not Entitled to Partial Summary Judgment.
          Zok sought partial summary judgment on the grounds that
the undisputed facts demonstrate that Collins breached his duty to
Zok by violating the Rules of Professional Responsibility, Bar
Rules, and Civil Rules.  The superior court correctly denied his
motion.
          First, Zok's partial summary judgment motion was
untimely.  Pursuant to the pretrial scheduling order, all
dispositive motions were to be filed by October 31, 1998; Zok filed
his motion in February 1999, several months after this deadline had
passed. [Fn. 6] 
          Second, Zok is not entitled to summary judgment for
substantive reasons -- his pleadings fail to demonstrate that there
is no genuine issue as to any material fact and that he is entitled
to summary judgment as a matter of law. [Fn. 7]  Zok's motion
offers no legal argument justifying relief and contains the same
allegations of wrongdoing contained in his complaint.  In addition,
the facts alleged in Zok's motion and affidavit are far from
undisputed; Collins consistently denied Zok's allegations.  Because
there are genuine controversies concerning material facts and
because Zok has not proven that he is entitled to judgment as a
matter of law, the superior court properly denied his motion for
partial summary judgment.  
     B.   Collins Is Not Entitled to Summary Judgment.
          1.   Collins is not entitled to judgment as a matter of
law.

          Collins contends that he is entitled to judgment as a
matter of law because Zok has not provided the court with the
requisite expert evidence for proving an essential element of his
prima facie legal negligence case -- Collins's breach of his duty
of care. [Fn. 8]  We agree only to the extent Zok's malpractice
claims require expert testimony.  We remand those aspects of Zok's
claims that do not require expert opinion testimony.
          In Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin,
[Fn. 9] we stated that under Alaska law, "expert evidence is
required 'to establish a breach of an attorney's duty of care,
except in non-technical situations where negligence is evident to
lay people or where the fault is so clear as to constitute
negligence as a matter of law.'" [Fn. 10]
          Not all of the aspects of Zok's legal malpractice claim
require expert testimony.  Zok's assertions regarding Collins's
failure to take certain routine actions, if true, speak to
Collins's general laxity in prosecuting Zok's action and are so
obviously a breach of an attorney's duty to his client that the
average juror untrained in the law would be able to make a finding
of negligence.  These contentions include: (1) Collins's failure to
oppose a number of pretrial motions that led to orders which
severely crippled Zok's case before trial; [Fn. 11] (2) his failure
to move for attorney's fees and costs after Zok prevailed at trial
and on appeal; (3) his failure to oppose the defendants' motion for
summary judgment on the issue of punitive damages; and (4) his
failure to oppose the defendants' motion to impose Civil Rule 37
sanctions on Zok for failure to comply with court rules even though
Zok had complied. 
          Zok's allegations concerning Collins's failure to file
papers implicate non-technical questions concerning Collins's
performance that can be evaluated by a lay jury without expert
testimony.  The same is true of Zok's claims concerning Collins's
noncompliance with the rules of discovery, including Collins's
failure to comply with a motion to compel discovery regarding Zok's
medical records and his consequent failure to oppose the motion or
to communicate to the court that he had already produced evidence
of Zok's medical records.  The deleterious consequences of
Collins's alleged failure to properly oppose this motion to compel,
which led to sanctions that limited the evidence of damages Zok
could produce, are also matters that can be understood and
evaluated by laypersons. [Fn. 12]
          Because aspects of Zok's legal malpractice claims are
discernible to laypersons and do not require expert testimony,
Zok's failure to designate experts does not preclude him from
proving that Collins breached his duty to Zok.  Therefore, Collins
is not entitled to judgment as a matter of law as to those aspects
of the malpractice claim that do not require expert opinion
testimony.
               2.   This case presents a genuine dispute of
material fact.
          In order to defeat a motion for summary judgment, the
non-moving party "need not produce all of its evidence but instead
must only show the existence of a genuine factual dispute." [Fn.
13]  Zok has satisfied this burden.
          Zok has presented evidence of disputed issues of material
fact in his verified complaint [Fn. 14] and the affidavits he
presented in opposition to summary judgment. [Fn. 15]  Zok's
verified complaint sets forth numerous allegations of misconduct by
Collins, including his failure to file appropriate papers seeking
affirmative relief for Zok, his failure to oppose motions, and his
failure to respond adequately to discovery requests.  Because
Collins summarily denied all of Zok's allegations of misconduct in
his answer, material questions of fact exist in the present case. 

          Zok also presented affidavits from himself and others in
support of his opposition to summary judgment.  Zok's affidavit
reiterates the points made in his verified complaint.  The
affidavits provided by witnesses for Zok -- Nancy Horn and Paul
Rommel Tension -- allege that, contrary to Collins's assertions,
Zok provided his bills and medical records to Collins. 
          Collins has denied Zok's allegations in his answer to
Zok's verified complaint and has submitted an affidavit that
generally alleges that he "is not the cause of any of [Zok's]
damages."  The numerous factual disagreements between the parties
raise material questions of fact that can be resolved only at
trial.  Therefore, summary judgment is inappropriate in this case. 
V.   CONCLUSION
          Because Zok's motion for partial summary judgment raised
disputed questions of material fact, the superior court properly
denied that motion.  But because Collins's motion for summary
judgment raised a number of disputed questions of material fact and
because expert testimony was not required to prove all aspects of
Zok's legal malpractice claim, Collins's motion for summary
judgment was improperly granted as to those aspects of the
malpractice claim that require only lay testimony. 
          We therefore AFFIRM the superior court's denial of Zok's
summary judgment motion and REVERSE in part the superior court's
grant of Collins's summary judgment motion.  We REMAND this case
for further proceedings consistent with this opinion.
                                 


                            FOOTNOTES


Footnote 1:

          Zok also challenges the superior court's denial of his
motion for reconsideration and Rule 60(b) motion for relief from
final judgment.  Since we are reversing the grant of summary
judgment to Collins, we need not reach these issues.    


Footnote 2:

     On a grant of summary judgment, we view the facts in the light
most favorable to the party against whom summary judgment was
granted.  See Holland v. Union Oil Co., 993 P.2d 1026, 1029 (Alaska
1999).


Footnote 3:

          See Zok v. State, 903 P.2d 574, 579 (Alaska 1995). 


Footnote 4:

          See Era Aviation, Inc. v. Seekins, 973 P.2d 1137, 1139-40
(Alaska 1999) (denial of summary judgment); Mount Juneau Enters.,
Inc. v. City of Juneau, 923 P.2d 768, 772-73 (Alaska 1996) (grant
of summary judgment).


Footnote 5:

          See Providence Wash. Ins. Co. v. Fireman's Fund Ins.
Cos., 778 P.2d 200, 203 (Alaska 1989).


Footnote 6:

          At the January 8, 1999 hearing on Collins's timely motion
for summary judgment, the superior court gave Collins an additional
ten days to file specific motions regarding Zok's failure to
produce admissible evidence supporting his claim for malpractice. 
Even if we concluded that the January 18 deadline also applied to
Zok, his motion would still have been over a month late.


Footnote 7:

          See Era Aviation, 973 P.2d at 1139-40.


Footnote 8:

          In order to prevail on a legal malpractice theory, a
plaintiff must prove four elements: "(1) the duty of the attorney
to use such skill, prudence, and diligence as other members of the
profession commonly possess and exercise;  (2) a breach of that
duty; (3) a proximate causal connection between the negligent
conduct and the resulting injury;  and (4) actual loss or damage
resulting from the [attorney's] negligence."  Shaw v. State, Dep't
of Admin., Pub. Defender Agency, 816 P.2d 1358, 1361 n.5 (Alaska
1991) (quoting Linck v. Barokas & Martin, 667 P.2d 171, 173 n.4
(Alaska 1983) (citations omitted)).  


Footnote 9:

          828 P.2d 745 (Alaska 1992).


Footnote 10:

          Id. at 761 (quoting Drake v. Wickwire, 795 P.2d 195, 196
(Alaska 1990)). 


Footnote 11:

          These orders prevented Zok from referring to his injuries
sustained in his unlawful arrest, the dismissal of his criminal
charges, and his culture and the Muslim religion.  


Footnote 12:

     Many aspects of Zok's claim of attorney malpractice clearly do
require the support of expert opinion before they may be presented
to a jury, including the claims that Collins committed malpractice
by: (1) failing to seek a default judgment against one of the
security officers; (2) allowing the dismissal of the State of
Alaska without opposition; and (3) failing to press the issue of
whether the State of Alaska was a "party in interest" at trial.  We
affirm the dismissal of those aspects of the malpractice claim that
require expert opinion testimony.


Footnote 13:

          Meyer v. State, Dep't of Revenue, Child Support
Enforcement Div., 994 P.2d 365, 367 (Alaska 1999).


Footnote 14:

          We have explicitly permitted parties to rely on verified
pleadings in opposing summary judgment.  See Bennett v. Weimar, 975
P.2d 691, 695 (Alaska 1999).  


Footnote 15:

          When making a summary judgment determination, a court
should examine the pleadings, affidavits, and discovery answers to
ascertain whether any genuine issues of material fact exist.  SeeMeyer, 994 P.2d at 367.