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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ball v. Birch, Horton, Bittner and Cherot (9/27/2002) sp-5634

Ball v. Birch, Horton, Bittner and Cherot (9/27/2002) sp-5634

     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,


BALL, and ALBERT BALL, JR.,   )    Supreme Court No. S-10015
             Appellants,      )    Superior Court No. 3AN-97-8972
     v.                       )    O P I N I O N
BIRCH,  HORTON,  BITTNER AND    )    [No. 5634  -  September  27,
CHEROT, a professional corporation,     )
and HAL R. HORTON, individually,   )
             Appellees.            )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:  R. Eldridge Hicks, Hicks, Boyd,
          Chandler    &   Falconer,   Anchorage,    for
          Appellants.   Patrick B.  Gilmore,  Atkinson,
          Conway & Gagnon, Anchorage, for Appellees.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          EASTAUGH, Justice.


          A law firms clients sued the firm.  They claimed, among

other  things,  that  the  firm was negligent  in  negotiating  a

commercial  transaction  and preparing  transactional  documents.

The law firm moved for complete summary judgment; it submitted in

support  an  experts  report that addressed  only  the  document-

preparation  claim.   When the plaintiffs  repeatedly  failed  to

produce  expert  opinions to oppose the  firms  summary  judgment

motion  or  support their malpractice claims, the superior  court

granted the firm complete summary judgment.  We discern no  error

as  to the document-preparation claim because plaintiffs did  not

preserve any genuine factual dispute as to that claim.  But as to

all  claims  the  firms expert did not address,  we  reverse  and

remand  because the firm did not make out a prima  facie  showing

that it was entitled to summary judgment as to those claims.


     A.   The Transaction

          Gerald  Ball, Albert Newton Ball, and Albert Ball,  Jr.

(the  Balls)  sought to sell their cargo airline  businesses  and

began  negotiations with a prospective purchaser in early  1991.1

The purchaser tendered two $200,000 checks but they were returned

for   insufficient   funds.    The  checks   return   and   other

circumstances raised a question about whether to proceed with the

sale or terminate discussions with the would-be buyer.  The Balls

retained  the  Anchorage law firm of Birch, Horton, Bittner,  and

Cherot to continue negotiations with the prospective buyer and to

draft  documents  for the sale of the businesses.   Attorney  Hal

Horton of that firm was the Balls lead lawyer.

          According to their sworn discovery responses they later

provided,  two  of the Balls had doubts about the  deal  and  had

wanted  to  end negotiations, but Horton insisted on  continuing.

After  the  transactional documents were executed, the  purchaser

defaulted on the first payment and the Balls foreclosed  on  what

property they could.

     B.   The Lawsuit

          The  Balls filed a malpractice complaint against Horton

and the law firm (collectively Birch, Horton or the law firm)  in

October 1997.  The complaint alleged that Birch, Horton failed to

meet  the  standard  of care of the legal profession  .  .  .  in

negotiating the sale [of] the Stock and in drafting the documents

for  the  sale  of the Stock in the Corporations.  The  complaint

          prayed for damages exceeding $5,000,000.

          The  attorney  who filed the Balls malpractice  lawsuit

became  incapacitated in the summer of 1999 and all of his cases,

including the Balls lawsuit, were referred to trustee counsel for

some  months.   The original lawyer briefly resumed  representing

the Balls in early 2000.

          Birch,  Horton  moved for summary judgment  in  January

2000 and supported its motion with a May 1999 report prepared  by

its  expert,  Fairbanks attorney Charles E. Cole.  Birch,  Horton

served the report on the Balls in May 1999, and again served  the

report  on  them with its January 2000 summary judgment  motion.2

We  discuss the report in Part III.B.  The law firm also filed  a

separate  motion  for partial summary judgment on  the  issue  of

punitive damages.

          The  Balls  original litigation lawyer, having  resumed

representing the Balls in early January 2000, moved  to  continue

the  trial  and extend the time to oppose summary  judgment.   He

claimed in his supporting memorandum that he had retained a local

attorney  to act as the expert in the case, but learned after  he

returned  to  Anchorage  that  this  attorney  had  discovered  a

conflict  of  interest with the defendant law firm and  would  no

longer  serve  as  an expert.3  He asked for additional  time  in

which  to  engage  another expert to respond  to  the  law  firms

pending summary judgment motions.

           The Balls litigation lawyer then fell ill again; their

present litigation attorney replaced him in early May 2000.

          It is undisputed that the Balls failed to comply with a

number  of  discovery  deadlines after  they  filed  suit.   Most

important among these were several deadlines for providing expert

reports;  at least one of those deadlines had passed  before  the

law firm moved for summary judgment in January 2000.

          At  a  June  1, 2000 status conference, the court,  the

Balls present counsel, and Birch, Hortons defense attorney agreed

that  the  Balls counsels first priority would be  to  secure  an

          expert and obtain an expert report.  Birch, Hortons attorney

explained that the January 2000 summary judgment motion was  just

filed  in  desperation to get some sort of response to something,

and  just  based on the fact that there have been  two  deadlines

that  have  come and gone for producing expert reports,  and  you

cant  have an attorney malpractice claim without one.  The  court

then vacated the July 24, 2000 trial date.

          At a July 13, 2000 status conference, the Balls present

attorney  acknowledged  the importance  of  providing  an  expert

report.  He represented that he had contacted an expert, a lawyer

in a prominent New York law firm, and that the expert needed more

time to review the file and prepare a report.  The Balls attorney

identified  the  expert by name and asked for  at  least  another

seventy-five  days in which to provide the experts  report.   The

court  suggested obtaining in thirty days a more or less  summary

report from the expert about the theory supporting the Balls case

and  the  Balls attorney agreed to do so.  The court then imposed

an  August 15 deadline for the report.  As of mid-July, at  least

one  trial  date  had already been vacated and there  were  seven

unanswered defendants motions, including motions to compel and  a

motion to disclose damages.

          On   August   15  the  Balls  filed  their   memorandum

opposition  to  Birch,  Hortons  summary  judgment  motion,   but

submitted  no report from an expert.  The Balls argued  that  the

Cole report did not justify complete summary judgment because  it

only addressed the document-preparation claim and not their other

claims.   They  also  asserted that the  claimed  negligence  was

ascertainable by a jury of ordinary education, obviating the need

for  a plaintiffs expert.  Alternatively, the Balls claimed  that

their  delay in producing the experts report had not  harmed  the

law firm and that they needed thirty more days under Alaska Civil

Rule 56(f) to secure an experts report.  They contended that  the

following  circumstances  justified the additional  thirty  days:

(1)  no  trial  date was then set; (2) the Balls sworn  discovery

responses  manifest a prima facie case; (3) the Balls lawyer  had

exerted  a  prodigious effort in the past two and a half  months;

(4) the Balls lawyer could certify under Rule 11 that the lawsuit

was  warranted by existing law; (5) diligent efforts to obtain  a

preliminary  expert  report by August 15 had  failed  through  no

fault  of  the  Balls, their attorney, or the worthiness  of  the

case;  and  (6)  the  law firm had suffered no prejudice  because

there was no trial date.

          The  superior court issued an order on August 22,  2000

setting the trial for April 9, 2001.

          In  a  late August 2000 letter to defense counsel,  the

Balls  attorney  revealed that, as of the July  13,  2000  status

conference,  he had not in fact spoken with the New  York  lawyer

whom he had identified at the July 13, 2000 status conference  as

the Balls expert.  The same letter revealed that the Balls lawyer

had  received  a message from the New York attorney  on  July  21

stating  that  he  felt his law firm did not  have  the  required

expertise.  The Balls lawyer also revealed that he had relied  on

the representation of the Balls original lawyer that the New York

attorney  would serve as an expert, but that current counsel  had

not  contacted  the  identified expert until after  the  July  13

conference.  Birch, Horton then supplemented its summary judgment

motion  with  arguments asserting that the Balls  should  not  be

granted  more time, given their failure to produce the identified

expert,  the misrepresentations of the Balls counsel,  and  their

lack of diligence.

          By  order issued September 20, 2000, the superior court

granted  Birch,  Hortons summary judgment motion.   The  superior

court  reasoned  that an expert opinion was  necessary  to  prove

breach of duty in this case, that the Balls had failed to provide

one after having been given ample opportunity and extension after

extension, and that summary judgment was appropriate because  the

firms  experts report was uncontradicted.  The order also stated:

The  plaintiffs failure to comply with this courts orders and the

defendants   reasonable  requests  for  compliance   precipitates

summary judgment.

          In their reconsideration motion, the Balls again argued

that  the Cole report was too limited to justify complete summary

judgment  because  it  only  addressed  the  document-preparation

claims  and not the negligent negotiation claims alleged  in  the

Balls  sworn  interrogatory  answers.   They  also  claimed  that

summary  judgment was inappropriate because they had now obtained

and  produced an expert report, because discovery was still open,

and  because  the  trial date of April 2001 was  then  still  six

months  away.   It  appears  that the Balls  first  served  their

experts report on  September 28, 2000.

          The    superior   court   denied   the    motion    for

reconsideration.   The denial order set out the  limited  grounds

for  reconsideration  and held that the Balls  failed  to  allege

circumstances justifying reconsideration.  The order stated  that

Mr. Coles opinion address[ed] each and every claim of malpractice

raised  by  Plaintiffs in their Disclosures, and that  plaintiffs

are  using the motion to reconsider to seek yet another extension

of  time  for presentation of additional evidence on the  merits.

The  court  entered final judgment against the Balls and  awarded

costs and enhanced attorneys fees against them.

          The  Balls appeal the grant of summary judgment and the

award of attorneys fees.


     A.   Standard of Review

          We  review  a grant of summary judgment de  novo.4   We

          affirm a grant of

summary judgment if there are no genuine issues of material  fact

and  the movant is entitled to judgment as a matter of law.5   We

draw all reasonable inferences in favor of the non-movant.6

     B.   Partial,   but  Not  Complete,  Summary  Judgment   Was


          The  Balls argue that the superior court committed  two

          main errors in entering summary judgment against them:  first,

they  claim that it erred by reading the report of the law  firms

expert  to address all of the Balls liability claims rather  than

just  the  claim of negligent document preparation,  and  second,

they claim that it abused its discretion by dismissing the entire

lawsuit  rather  than  waiting longer for  their  experts  report

because trial was distant and discovery was still open.

          The  law firm responds that summary judgment was proper

because the Balls had the ultimate burden of proving that the law

firm  breached  the  standard of care, but repeatedly  failed  to

produce  any  expert  opinion that the  law  firm  breached  that

standard.   It reasons that because the Balls failed to establish

breach of the standard of professional care by expert opinion, an

essential  element  of legal malpractice claims,7  the  law  firm

would  have  been entitled to summary judgment even  had  it  not

provided its own expert report.

          Two  competing propositions are at play here.  The  law

firm  relies  on  the first: professional malpractice  plaintiffs

must  support  their claims with expert opinion evidence  of  the

standard  of  care unless the negligence alleged is  sufficiently

non-technical to be cognizable by laypersons.8  The Balls rely on

the  second:  because  a party moving for summary  judgment  must

demonstrate the absence of any genuine issue of material fact  as

to  all  claims,  complete  summary judgment  cannot  be  entered

against  the  opponent  if  the  movant  only  provides  evidence

regarding some of the claims.

          Notwithstanding   the  Balls  significant   delays   in

responding  to discovery and producing their experts  report,  we

agree with the Balls and affirm summary judgment only as to those

claims addressed by the law firms expert.

          1.   Propriety of complete summary judgment

          As  a  general proposition, a defendant is not entitled

to  complete summary judgment in Alaska unless it demonstrates as

to  each  claim  against it that there is  no  genuine  issue  of

          material fact and that it is entitled to judgment as a matter of

law.9   This is the rule even if the defendants motion  addresses

an element which is essential to the plaintiffs case and on which

the plaintiff would ultimately bear the burden of proof at trial.10

          The  expert  report Birch, Horton submitted to  support

its summary judgment motion addressed only the claim of negligent

document   preparation.   The  report  contained  this   limiting


          I  have  not  been  retained  to  express  an
          opinion on any involvement Mr. Horton may  or
          may   not   have   had  in  the   course   of
          negotiations  which led to the  execution  of
          the  Stock Purchase and Sale Agreement, dated
          October  25,  1991,  the First  Amendment  to
          Stock  Purchase  and  Sale  Agreement,  dated
          November  19,  1991, and the related  closing
          documents  other than the light shed  on  Mr.
          Hortons  participation in those  negotiations
          by the documents which he drafted and related
          The  report  expresses  the general  opinion  that  the

transaction  documents  drafted by Mr. Horton  were  prepared  in

conformance with the standard of care applicable to attorneys  at

law  in  Alaska in 1991.  The remainder of the report relates  to

particular   provisions  or  aspects  of  the  documents   Horton

prepared.   The  report expresses no explicit opinion  concerning

claims  other than the document-preparation claim, and cannot  be

fairly read to contain implicit opinions about any other claims.

          The  law  firm  argued in the superior court  that  the

experts  report addressed each of the Balls malpractice claims.12

The  order  granting summary judgment noted that  the  law  firms

experts   testimony   is  uncontradicted.   The   order   denying

reconsideration rejected the Balls argument that the firm did not

provide  evidence addressing their other liability theories,  and

stated,  Mr.  Coles  opinion addresses each and  every  claim  of

malpractice  raised by Plaintiffs in their Disclosures.   But  in

fact,   the  Cole  report  addressed  only  the  Balls  document-

preparation claim.  It did not discuss the other liability claims

          the Balls had identified in their complaint, discovery responses,

and  summary  judgment opposition.13  And it did  not  express  a

blanket no-fault opinion that might have encompassed all possible


          Because  the  report of the law firms  expert  did  not

address  all of the grounds on which the Balls claimed  the  firm

was  negligent, the firm did not make out a prima  facie  showing

for complete summary judgment on all of the Balls claims.14  Under

our  standard summary judgment analysis, the Balls would have had

no  obligation  to  demonstrate  that  a  genuine  factual  issue


          The  law  firm argues, however, that the Balls complete

failure  to  produce expert opinion evidence  of  any  breach  of

professional duty makes the scope of the Cole report  irrelevant;

it  argues that even if it had submitted no report it would  have

been  entitled  to  complete summary judgment absent  any  expert

evidence of malpractice.

          The  law  firm founds its arguments on the  proposition

that  professional  malpractice  plaintiffs  must  support  their

claims  with  expert  opinion evidence of the  standard  of  care

unless the negligence alleged is sufficiently non-technical to be

cognizable  by laypersons.   It cites Kendall v. State,  Division

of  Corrections and Drake v. Wickwire in support of this  general

proposition.16  To support its assertion that the Balls failure to

produce  any  expert  evidence of malpractice warranted  complete

summary  judgment,  the  law  firm relies  on  cases  from  other

jurisdictions  discussing  summary  judgments,  including   cases

applying the federal summary judgment standard.17  It also relies

on  two  Alaska  cases,  Zok v. Collins18 and  Gerber  v.  Juneau

Bartlett Memorial Hospital.19

          It  is  not  obvious  why  a  professional  malpractice

defendant  moving for summary judgment should be  relieved  of  a

summary  judgment movants usual threshold duty of  making  out  a

prima facie showing addressing the claims against it.  And it  is

          not obvious why it should be permitted to place on the non-movant

plaintiff  the burden of proving elements of the plaintiffs  case

at the summary judgment stage if the defendant does not make that

prima facie showing.

          But  this case does not require us to decide whether  a

professional  malpractice plaintiff must  submit  evidence  of  a

breach  of the applicable professional standard of care in  order

to avoid summary judgment if the movant does not make out a prima

facie  showing that there was no breach.  The law  firm  in  this

case  did offer expert evidence in an attempt to make out a prima

facie  showing of lack of fault.  And it argued that its  experts

report  had refuted each allegation of malpractice.  The superior

courts  comments  in  denying  reconsideration  suggest  that  it

accepted that argument.  Moreover, unfortunate circumstances were

partly  responsible  for the Balls delay in producing  an  expert

report.  Even though the Balls could not have taken their case to

a   jury   without  expert  evidence  establishing   fault,   the

rescheduled  trial was not to begin until April  2001,  discovery

had  not  closed, and other pretrial dates had been or  would  be

rescheduled.  Further, absent a prima facie showing that the  law

firm  did  not  breach  an applicable duty, the  Balls  discovery

responses,  including their July 2000 supplemental  interrogatory

answers,  provided a factual framework sufficient to  demonstrate

to  the  superior court at the summary judgment  stage  some  six

months  before trial that the plaintiffs legal malpractice claims

were  not  on their face completely without merit.  And  at  this

stage  of  the  proceedings, it was not  yet  critical  that  the

plaintiffs  had  not submitted an expert opinion to  support  the

liability theories the Cole report did not discuss.  The superior

court at this point had less need for an opinion addressing  each

theory  of legal malpractice than would a jury of non-lawyers  at


          No  Alaska case compels a different result.  Gerber and

Kendall  were medical malpractice cases in which expert  advisory

panel reports provided affirmative expert evidence that there was

no professional breach.20  The plaintiffs in both cases failed to

offer opposing expert evidence.21  They therefore failed to rebut

the  movants prima facie showings.22  In Zok v. Collins the legal

malpractice  plaintiff did not designate experts  to  testify  at

trial.23   After the deadlines had passed for listing  witnesses,

disclosing  experts and their opinions, and completing discovery,

the  defendant  moved for summary judgment and  argued  that  the

plaintiff  would  be  unable  to  prove  the  elements   of   his

malpractice  claims  requiring expert testimony.   Moreover,  the

superior  court  there  found  that  the  plaintiff  had  made  a

strategic decision not to hire experts.  In comparison, here  new

pretrial  dates  had  been  or were  to  be  set  and  the  Balls

consistently  expressed  an intention to offer  opinion  evidence

supporting their claims.

          The  law  firm  has  identified no  viable  alternative

ground for affirming the complete summary judgment.  It does  not

argue  that the summary judgment can be justified as a  sanction.

The  superior court did not rely on a sanction rationale and  did

not  make, even implicitly, findings that would have permitted  a

litigation-ending  sanction.24   Finding  vexatious  delays   and

misrepresentations   regarding   the   availability   of   expert

testimony,  the  superior court awarded  the  law  firm  enhanced

attorneys  fees.   But these findings would  not  have  justified

litigation-ending  sanctions.   And,  given  disputes  about  the

extent  to  which the plaintiffs earlier discovery and disclosure

deficiencies  were  attributable in part to  their  incapacitated

counsel,  we cannot find willfulness as a matter of law  on  this


          Summary  judgment should not have been  granted  as  to

liability  claims  not  addressed in the  Cole  report.   It  was

therefore error to grant complete summary judgment.

          2.   Propriety of partial summary judgment

          Because  the  law  firm supported its summary  judgment

          motion with expert opinion evidence that there was no merit to

the  Balls document-preparation theory, in order to avoid partial

summary  judgment  the  Balls  had  to  demonstrate  either   the

existence of a genuine, material fact dispute,25 or their need for

more  time to oppose the motion.26  The Balls, however,  did  not

show  that  there were genuine fact disputes inherently rebutting

the detailed opinions expressed in the Cole report.  They did not

offer evidence creating any factual dispute about the assumptions

underlying  Coles opinions.  And they did not rebut his  opinions

with contrary expert opinions.

          Legal  malpractice  plaintiffs in Alaska  must  support

their  claims with expert opinion evidence unless the  negligence

alleged  is  sufficiently  non-technical  to  be   cognizable  by

laypersons.27  The Balls malpractice claims were not sufficiently

non-technical  to  be evident to laypersons.   The  interrogatory

answers  signed by Gerald Ball, a layperson, were not  sufficient

to  create  a  genuine fact dispute for purposes of rebutting  an

expert opinion clearly expressed on a topic which required expert

evidence.28   The Balls failure to offer expert opinion  evidence

responding to the Cole opinions is therefore fatal to  the  claim

of negligent document preparation, unless, as they also argue, it

was  an  abuse  of discretion to grant summary judgment  given  a

distant trial date and open discovery.

          The Balls appellate briefs do not cite or rely on Civil

Rule 56(f), although the Balls requested a thirty-day continuance

under  that  rule  in  the  superior court  for  the  purpose  of

obtaining an expert report to support their claims and rebut  the

Cole  report.  We have held that requests made under  Rule  56(f)

should  be granted freely because Rule 56(f) provides a safeguard

against  premature grants of summary judgment.29   We review  for

abuse of discretion the denial of a motion for a Civil Rule 56(f)

continuance.30  But the Balls do not claim that the court  denied

any  requested  continuance.  They argue instead that  it  should

have waited longer for their experts opinion.

          The  record  does  not  justify a conclusion  that  the

superior  court  abused  its discretion by  not  waiting  longer.

Notwithstanding  the  impediments  and  delay   caused   by   the

incapacity  of  their first litigation attorney,  the  Balls  had

adequate time to obtain expert opinions to rebut the opinions  in

the  Cole  report.  That report was first served on the Balls  in

May  1999, and was served again in January 2000 with the  summary

judgment  motion.   The  Balls successor counsel  recognized  the

importance  of obtaining an expert opinion supporting  the  Balls

claims,  and  the weight the superior court placed  on  producing

such  a  report.   On  June 1, 2000 the  Balls  lawyer  told  the

superior court he needed thirty or forty-five days, and the court

responded that forty-five days is reasonable, but warned  counsel

that  I  need to tell you that Im going to hold you to that.   At

the  July  13,  2000 hearing, shortly before the  forty-five  day

period  was to expire, the Balls lawyer represented, among  other

things, that he had conferred with the New York attorney and  the

court ordered counsel to produce the expert report by August 15.

          On  August  15 the Balls did not produce  a  report  as

ordered;  instead, their August 15 memorandum moved  under  Civil

Rule  56(f)  for an additional thirty days in which to  obtain  a

report.  At an August 22 hearing, their attorney announced that a

new expert had been engaged who would provide a report within two

or three weeks, i.e., by the end of the second week of September.

At  the  same  hearing,  defense counsel correctly  informed  the

superior court that the summary judgment motion was ripe and that

the  Balls had not requested oral argument; the court stated that

it would turn it over to a law clerk.  The superior court did not

expressly  grant or deny the Balls thirty-day request or  approve

the Balls plan to submit the report the second week of September.

But  it  did  not enter summary judgment against the Balls  until

September  20, 2000, about a week after the requested  thirty-day

continuance  would  have expired.  The Balls did  not  submit  an

experts  report until they moved for reconsideration on September


          Before  the court granted summary judgment,  the  Balls

had  repeatedly  missed  deadlines for  producing  their  experts

report.   The reasons the Balls gave for missing those  deadlines

were not so compelling that the court was obliged to accept them.

And  when  they  moved  for reconsideration,  the  Balls  offered

absolutely  no  explanation for why they had  not  submitted  the

experts report within the thirty-day extension they had requested

or before the court entered summary judgment.

          It  would  defeat  the utility of summary  judgment  to

permit  a  non-movant  to delay indefinitely submitting  evidence

rebutting  the  movants prima facie showing.  The  Balls  do  not

specify  how much more time they should have been given, but  the

court  did not rule until after the time they last requested  had

expired.  Their failure to seek additional time before the  court

ruled  precludes  a claim that the court sua sponte  should  have

given  them  more  time than they had asked for  or  should  have

delayed  ruling  on  the ripe summary judgment  motion  for  some

unknown period.31

          We  also reject any argument that the court should have

accepted  the report of the Balls expert and denied even  partial

summary  judgment.  The Balls first submitted  the   report  with

their   motion  for  reconsideration.   Materials  and  arguments

submitted for the first time on reconsideration may not  be  used

to establish that the original ruling was in error.32

          Partial  summary judgment was appropriate  because  the

law firm made out a prima facie showing of entitlement to summary

judgment on the liability claim addressed in its experts  report.

We  therefore remand for entry of partial summary judgment as  to

those negligence claims covered by the law firms experts report.

     C.   Enhanced Attorneys Fees Award

          The  superior court awarded the law firm attorneys fees

of  $75,841   fifty  percent of its incurred defense  fees.   The

order  stated that [t]he fee is enhanced due to vexatious  delays

          and misrepresentations to the court and defense counsel

concerning  expert testimony availability.  The Balls argue  that

it was error to award enhanced fees.

          Alaska  Civil Rule 82(b)(3) permits enhanced fee awards

under some circumstances, but it is unnecessary to decide whether

it was error to enhance the award here.  Because the law firm was

not  entitled to complete summary judgment and because we  remand

for further proceedings, we vacate the attorneys fees award.   We

vacate the costs award for the same reason.


          Because  defendants only made out a prima facie showing

supporting  partial  summary judgment, we REVERSE  the  judgment,

VACATE  the  awards of attorneys fees and costs, and  REMAND  for

further  proceedings, including entry of partial summary judgment

as to the claims addressed in the report of the law firms expert.

     1    With respect to the facts of the underlying dispute, we
draw  permissible factual inferences in favor of the  Balls,  the
opponents of the summary judgment motion.  See Zok v. Collins, 18
P.3d  39,  40  n.2  (Alaska 2001) (citation  omitted);  Moore  v.
Allstate  Ins.  Co.,  995 P.2d 231, 233 (Alaska  2000)  (citation
omitted). These circumstances are described only for the purposes
of  resolving  the legal issues before us.  We do not  intend  to
foreclose  the  parties  from  fully litigating  genuine  factual
disputes on remand.

     2     The report was not originally prepared in the form  of
an  affidavit, but the law firm eventually submitted it in  sworn

     3     A  dispute arose about whether this local attorney had
ever  been  retained as an expert in this case.  He testified  at
his  February  2000  deposition that he had never  actually  been
retained  as  an  expert.  The Balls original  attorney  filed  a
declaration asserting that the local attorney had agreed to be an
expert  in  the case.  The superior court found, in  denying  the
Balls  motion  to reconsider the grant of summary judgment,  that
this  local  attorney had never been engaged as  an  expert,  had
never  agreed  to  be an expert, had never agreed  to  prepare  a
report,  and had never been informed of the deadlines for  expert

     4    Arctic Tug & Barge, Inc. v. Raleigh, Schwartz & Powell,
956 P.2d 1199, 1200 (Alaska 1998).

     5     Moore  v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska

     6    Id.

     7    See Drake v. Wickwire, 795 P.2d 195, 197 (Alaska 1990).

     8    See Kendall v. State, Div. of Corrs., 692 P.2d 953, 955
(Alaska  1984) (requiring expert testimony to establish  standard
of  care in medical malpractice cases when negligence not evident
to  laypersons);  see  also Drake, 795  P.2d  at  197  (extending
Kendall rule to legal malpractice cases).

     9    Alaska R. Civ. P. 56(c); Concerned Citizens of S. Kenai
Peninsula  v. Kenai Peninsula Borough, 527 P.2d 447, 450  (Alaska

     10     Trombley v. Starr-Wood Cardiac Group, PC, 3 P.3d 916,
924  (Alaska 2000); Shade v. Co & Anglo Alaska Serv.  Corp.,  901
P.2d 434, 437-38 (Alaska 1995).

     11     The expert apparently assumed that nothing other than
document  preparation was relevant to the Balls claims.   He  had
received  a copy of a letter from attorney Horton to one  of  the
plaintiffs, saying that the defendants had primary responsibility
for   preparing   documents,   creating   debt   and   collateral
instruments,  and handling the stock transfer, and inferred  from
this   letter  that  Hortons  responsibilities  did  not  include

     12    The law firms summary judgment memorandum asserted that
its  expert  ha[d] opined that Defendants were not  negligent  in
their  representation of Plaintiffs, and implied  that  the  Cole
report  fully rebutted any claim that the defendants were liable.
Its  August  2000 reply memorandum asserted that the Cole  report
address[ed]  and  refute[d]  each allegation  of  malpractice  in
Plaintiffs Disclosures.

     13    The Balls 1997 complaint alleged that the law firm had
a  duty  of  due care to negotiate the sale of the Stock  in  the
Corporations and to draft the documents of sale and  closing  for
the  sale  of  Stock  in the Corporations consistent  with  [the]
standard  of  care  applicable to attorneys in Anchorage  at  the
time.   It  also  alleged  that  the  breach  of  that  duty   in
negotiating  the  sale  and preparing the  documents  harmed  the

          The   Balls   April  1998  disclosures  asserted   that
[d]efendants  failed to meet the standard of care  of  the  legal
profession  to which they were obligated under the contract  with
the  Plaintiffs  in negotiating the sale [of] the  Stock  and  in
drafting  the  documents  for  the  sale  of  the  Stock  in  the
Corporations.    Their   July  2000  supplemental   interrogatory
answers,  signed under oath by Gerald Ball, alleged, among  other
things,  negligent  negotiation as  well  as  negligent  document
preparation.  The court never ordered those responses  struck  as
untimely, nor did the law firm ask the court to do so.  The Balls
served  their supplemental interrogatory answers after the  trial
date  was vacated and before a new trial date was set and a month
before  the  law  firm filed its reply memorandum supporting  its
summary judgment motion.

          The  Balls  August 15, 2000 opposition to  the  summary
judgment  motion argued that the report of the law  firms  expert
did   not  encompass  the  Balls  other  liability  theories  and
summarized those theories in some detail.

     14     Philbin v. Matanuska-Susitna Borough, 991 P.2d  1263,
1265  (Alaska  1999)  (holding movant  bears  initial  burden  of
proving  through admissible evidence (1) absence of genuine  fact
disputes, and (2) its entitlement to judgment as matter of  law).
See  also Alaska Travel Specialists, Inc. v. First Natl  Bank  of
Anchorage, 919 P.2d 759, 762 (Alaska 1996) (quoting Shade v. Co &
Anglo  Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska  1995)  (The
non-moving party need not demonstrate the existence of a  genuine
issue  until the moving party makes a prima facie showing of  its
entitlement to judgment on established facts. )).

     15    Shade, 901 P.2d at 437 (citations omitted).

     16    See Drake v. Wickwire, 795 P.2d 195, 197 (Alaska 1990);
Kendall  v.  State,  Div. of Corrs., 692 P.2d  953,  955  (Alaska

     17     See  Celotex Corp. v. Catrett, 477 U.S.  317  (1986);
Daubert  v.  Merrell  Dow Pharm., Inc., 43 F.3d  1311  (9th  Cir.

     18    18 P.3d 39 (Alaska 2001).

     19    2 P.3d 74 (Alaska 2000).

     20    Gerber, 2 P.3d at 75; Kendall, 692 P.2d at 954.

     21    Gerber, 2 P.3d at 75; Kendall, 692 P.2d at 955.

     22    Gerber, 2 P.3d at 78; Kendall, 692 P.2d at 955.

     23    Zok, 18 P.3d at 41.

     24     See  Alaska R. Civ. P. 37(b)(2) (addressing sanctions
for  discovery  violations); see also Hikita  v.  Nichiro  Gyogyo
Kaisha,  Ltd., 12 P.3d 1169, 1176 (Alaska 2001) ([A] trial  court
may not issue litigation-ending sanctions without first exploring
possible  and  meaningful alternatives to  dismissal.)  (internal
quotation marks and citation omitted).

          At  a minimum, no litigation-ending sanction would have
been justified without a finding of willfulness.  Underwriters at
Lloyds London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993).

     25     See Alaska R. Civ. P. 56(c); see also Yurioff v.  Am.
Honda  Motor  Co.,  803 P.2d 386, 389 (Alaska 1990);  Howarth  v.
First Natl Bank of Anchorage, 540 P.2d 486, 489-90 (Alaska 1975).

     26    Alaska Rule of Civil Procedure 56(f) provides:

          Should  it  appear from the affidavits  of  a
          party  opposing  the motion  that  the  party
          cannot   for   reasons  stated   present   by
          affidavit  facts  essential  to  justify  the
          partys  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  other
          order as is just.
     27      Kendall, 692 P.2d at 955 (applying rule  in  medical
malpractice  case  and  affirming  defendants  summary   judgment
because  Kendall  did not carry her burden by  presenting  expert
testimony rebutting defendants showing that there was no  genuine
issue as to negligence).  Similarly, in Kaiser v. Sakata, 40 P.3d
800,  805  (Alaska  2002),  we held  that  summary  judgment  was
appropriate in a medical malpractice case when a pro se plaintiff
failed to produce countervailing expert testimony in response  to
defense  expert  evidence  in support of  summary  judgment.   In
Drake,  795  P.2d  at 197-98, we agreed with the superior  courts
conclusion  that expert testimony was required to  prove  that  a
lawyer  had breached the professional standard of care, but  held
the lawyer was negligent as a matter of law.  In Bohna v. Hughes,
Thorsness,  Gantz, Powell & Brundin,  828 P.2d 745,  761  (Alaska
1990),  we  reiterated  our  statement  in  Drake  that  a  legal
malpractice  plaintiff  must offer expert  testimony  to  show  a
breach  of  an  attorneys duty of care unless the  negligence  is
sufficiently non-technical to be evident to laypersons.  In  Zok,
18  P.3d  at 42-43, we affirmed in part summary judgment for  the
defendant attorney because his former client did not support  his
claim  with an experts opinion; we reversed the summary  judgment
as to those claims not requiring expert testimony, such as claims
alleging failure to oppose motions.

     28    See Zok, 18 P.3d at 42-43.

     29     Gamble v. Northstore Pship, 907 P.2d 477, 485 (Alaska
1995) (citations omitted).

     30     Kessey  v. Frontier Lodge, Inc., 42 P.3d  1060,  1062
(Alaska 2002).

     31     See  D.J.  v.  P.C., 36 P.3d 663, 668  (Alaska  2001)
(holding no plain error for superior court failing to sua  sponte
extend deadline for response to summary judgment motion when non-
movant  was adequately represented by counsel and did not request
extension or argue how he would have used extension); State, Dept
of  Revenue  v.  Mitchell,  930 P.2d  1284,  1288  (Alaska  1997)
(quoting  Burford  v.  State, 515 P.2d 382,  383  (Alaska  1973))
(holding not plain error superior courts failure to raise  waiver
issue sua sponte because alleged error did not affect substantive
rights and was not obviously prejudicial).

     32    Alaska R. Civ. P. 77(k); Stadnicky v. Southpark Terrace
Homeowners Assn, 939 P.2d 403, 405 (Alaska 1997).