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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griffith v. Taylor (11/17/00) sp-5333

Griffith v. Taylor (11/17/00) sp-5333

     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.


NED A. GRIFFITH,              )
                              )    Supreme Court No. S-8970
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-91-1237 CI
             Appellees.       )    [No. 5333 - November 17, 2000]

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                    Richard D. Savell, Judge.

          Appearances: Andrew K. Kurzmann, Anchorage,
for Appellant.  Robert J. Dickson, Atkinson, Conway & Gagnon,
Anchorage, for Appellees.

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

          CARPENETI, Justice.

          Ned Griffith appeals a jury verdict that the legal
malpractice of the predecessor law firm of Aglietti, Rodey & Offret
was not the legal cause of his alleged damages. [Fn. 1]  Griffith
argues that the superior court erred in precluding his experts from
making use of certain deposition testimony, in instructing the jury
on superseding causation, and in its handling of a jury poll. 
Because Griffith's arguments lack merit, we affirm the superior
court in all respects.
     A.   Facts [Fn. 2]
          Joe Griffith owned real property in Fairbanks.  His son
Ned Griffith assisted him in building a multi-family dwelling on
the property.  Ned paid for the materials, paid the laborers who
worked on the building, and performed some of the labor himself. 
          In April 1984 Ned expressed concerns to Joe about Joe's
indebtedness to him.  Ned was reluctant to continue working on the
building because he was concerned that Joe could not compensate him
for the substantial time, money, and effort he had expended. 
          In order to satisfy his past debts and provide
compensation for Ned's labor, Joe agreed to transfer the property
to Ned through a quitclaim deed.  Jill Dean, an associate of
Aglietti, Pennington & Rodey, [Fn. 3] prepared the deed. [Fn. 4] 
Joe signed the deed later in April.  During that same month, Ned
gave Joe a general power of attorney.  Ned stated that he did so to
enable Joe to purchase real property for Ned in California. 
          In 1985 Joe spoke with attorney Warren Taylor, who had
joined the firm earlier that year.  Joe told Taylor that he had
transferred the Fairbanks property to Ned as security, that he had
satisfied his debt to Ned, and that he wanted to use the power of
attorney to transfer the property back to himself.  Taylor prepared
a quitclaim deed, which Joe signed pursuant to the power of
attorney granted to him by Ned.  The signature line on the deed
reflected that it was signed by Joe through the power of attorney
granted to him by Ned.  The firm recorded the deed.
          In 1987 Joe was told that the 1985 deed might be invalid
because he had used the power of attorney to transfer the property
to himself.  Joe then asked Taylor to prepare another deed on which
he could obtain Ned's signature.  Taylor followed the statutory
form and created a deed for Joe.  Taylor gave the deed to Joe
before it was signed and took no part in its subsequent execution. 
At some point, the deed was executed.  However, it was later
determined that Ned's signature had been forged.  The firm did not
assist Joe in recording the deed.  Joe subsequently died.
          In 1988 Ned learned of the 1987 deed when he attempted to
sell the property. 
     B.   Proceedings
          1.   Collateral proceedings
          Ned originally sued to quiet title in the property.  In
that action, Griffith v. Griffith, [Fn. 5] the jury found that the
1985 and 1987 deeds were invalid and that the property belonged to
Ned. [Fn. 6]
          2.   These proceedings
               a.   The original superior court proceedings
          Ned then filed the action that is before us today, 
alleging professional malpractice, breach of fiduciary duty, and
breach of contract against the firm.  Ned claimed that the firm
"had engaged in a conflict of interest by participating both in the
transfer of the property to Ned and in the 1985 and 1987 transfers
which attempted to divest him of title to the property." [Fn. 7] 
Ned also claimed that the firm had breached its fiduciary duty to
him by failing to notify him of Joe's efforts to transfer the title
of the property to himself. 
          Ned asserted that as a result of the firm's conduct, "he
incurred $140,000 in attorney's fees and costs to litigate the
quiet title action and suffered a diminution in the value of the
property because of changes in the real estate market during the
period of the litigation." [Fn. 8]
          The superior court granted summary judgment to the firm
and dismissed all causes of action against both it and Taylor.  
               b.   Our original decision
          In Ned's first appeal, we reversed the superior court's
grant of summary judgment to the firm [Fn. 9] and remanded the case
for further proceedings on whether the scrivener's exception
applied to the firm's conduct. [Fn. 10]  We instructed the superior
court to consider the other elements of Ned's claim if it was
determined on remand that the scrivener's exception did not apply.
[Fn. 11]  We also reversed the superior court's grant of summary
judgment to Taylor, [Fn. 12] holding that an agent can be liable in
tort, even if the agent "acted at the command of the principal."
[Fn. 13]  We further stated that it is irrelevant whether Taylor
joined the firm after its duty to Ned arose. [Fn. 14] 
               c.   The proceedings on remand
                    i.   The preclusion of certain expert
          On remand, Ned sought to have his expert witnesses make
use of deposition testimony given by Ronald A. Offret in early
1998.  Offret, who oversaw the firm's office administration during
the time when the firm prepared Joe's quitclaim deeds, stated that
the firm's office policies prohibited unsigned documents from
leaving the firm's office.  
          Ned argued that Offret's testimony revealed "that the
Firm, through its agents, failed to adhere to its own in-house
procedures."  He further claimed that "[t]he unsigned deed left the
Firm's offices and thereafter was forged and recorded resulting in
[his] damages." 
          The relevant office policy was not mentioned in an expert
witness list that Ned submitted in February 1993.  The firm moved
the superior court to preclude Ned's experts from testifying about
matters that were not addressed in that expert witness statement. 
In doing so, the firm noted that under the court's pretrial order,
the time for amending both pleadings and expert witness disclosures
was closed.  The superior court granted the firm's motion, thereby
precluding Ned's experts from commenting at trial on Offret's
deposition testimony about the office policy.
                    ii.  The trial

          Judge Richard D. Savell presided over the jury trial, 
which was held in June 1998.  He instructed the jury on, among
other things, superseding causation.  At the end of the trial, he
instructed the jury to find that the firm was not liable for Ned's
damages if it found that a criminal forgery of the quitclaim deed
constituted a superseding cause.  Ned objected to the giving of the
          The jury found that Taylor failed to "possess and
exercise that degree of skill, prudence, and diligence that other
attorneys commonly possessed and exercised in 1985 and 1987 under
similar circumstances."  However, because the jury further found
that Taylor's malpractice was not a legal cause of Ned's claimed
damages, it did not reach the issues of superseding causation and
          After the jury rendered its verdict, the court polled the
jury at the request of Ned's attorney.  When the court asked the
twelve jurors if they agreed with the finding on legal causation,
three appeared to say that they did not.  However, when the court
asked all jurors who agreed with the answer to raise their hands,
eleven did so.  The court then asked Ned's attorney if he was
satisfied that the numbers added up, and he said "yes."  The court
then excused the jury without objection from Ned's attorney. 
          We review decisions involving the admission of expert
testimony for an abuse of discretion. [Fn. 15]  We will find an
abuse of discretion only if we are "left with a definite and firm
conviction, after reviewing the whole record, that the trial court
erred in its ruling." [Fn. 16]  We review de novo a jury
instruction to which a timely objection was made. [Fn. 17]
     A.   The Superior Court Did Not Err in Precluding Ned from
Offering Expert Witness Testimony that Was Not Covered in the
February 1993 Expert Witness Statement.

          Ned first argues that the superior court committed
reversible error in precluding him from offering expert witness
testimony that was not covered in the February 1993 expert witness
statement.  In particular, he argues that the superior court erred
in precluding his expert witnesses from making use of Offret's
deposition testimony that it was against the firm's policies to
allow unsigned documents to leave the office.  We reject Ned's

          In attempting to have his experts make use of the
relevant portions of the Offret deposition, Ned sought to expand
the factual basis of his claim and introduce a new basis for
liability.  Ned's first amended complaint asserted three theories
under which he claimed that the firm was liable to him: (1)
professional malpractice for assisting Joe to use Joe's power of
attorney to transfer Ned's property to Joe; (2) breach of a
fiduciary duty because of the firm's previous representation of Ned
regarding the property in question; and (3) breach of its
professional employment contract based on the potential conflict of
interest associated with the firm's representation of Joe in
matters concerning property for which the firm had previously
represented Ned.  Ned did not argue that the firm's alleged
violation of its own office policies regarding unsigned documents
constituted malpractice.
          The first mention Ned made of the policy concerning
unsigned documents was in his February 1998 cross-motion for
summary judgment.  He then notified the firm that he sought to make
use of the relevant portions of the Offret deposition in a
supplemental discovery notice that he served on the firm in March
1998.  This notice was served over six years after Ned filed suit, 
almost a year after we remanded this case, [Fn. 18] and less than
three months before the trial began. 
          Because Ned sought to introduce a new basis for liability
so close to trial, the superior court was within its discretion in
precluding Ned's experts from making use of the deposition
testimony.  Furthermore, when Ned served his notice, the time for
amending pleadings and disclosing the opinions of expert witnesses
was closed under the pretrial order.  Ned did not move for
modification of this pretrial order.  Accordingly, we hold that the
superior court did not err in precluding Ned's experts from making
use of Offret's deposition testimony.
     B.   The Superior Court Did Not Err in Giving the Jury a
Superseding Causation Instruction.

          Ned argues that the superior court erred in giving the
jury a superseding causation instruction over his objections
because, "as a matter of law, Joe's alleged forgery was not a
super[s]eding/intervening cause of Ned's damages."  According to
Ned, reasonable minds cannot differ on the point that the firm's
negligence was a legal cause of his damages.  Ned further asserts
that "the jury instruction led to jury confusion and misapplication
of the law to the facts."  We disagree.
          Ned appears to argue that the firm's malpractice led to
the deed being forged, [Fn. 19] which in turn caused Ned's asserted
damages.  The superior court's  superseding causation instruction
notified the jury that it should find the firm not liable for Ned's
asserted damages if it found that the criminal forgery of the deed
was a superseding cause. [Fn. 20] 
          Superseding cause is a variant of the doctrine of
proximate cause.  This court has explained that the doctrine of
superseding cause will relieve a negligent actor of liability only
in exceptional cases. [Fn. 21]  We have stated that "an action of
a third person which intervenes to injure the plaintiff will shield
a negligent defendant only where after the event and looking back
from the harm to the actor's negligent conduct, it appears . . .
highly extraordinary that it should have brought about the harm."
[Fn. 22]  We have also noted that "a criminal act will ordinarily
break the chain of causation." [Fn. 23]  In doing so, we also
reject Ned's argument that reasonable minds cannot differ on
whether the firm's malpractice was a legal cause of Ned's damages. 
There are numerous grounds on which a reasonable jury could reach
the conclusion that the jury reached here.  For example, one of
Ned's own experts  testified that even if Joe had contracted with
a disinterested attorney to prepare the quitclaim deeds, there is
no reason to believe the same result would not have occurred.  The
expert also stated that if Joe had done so, there is no reason to
think that the situation would have turned out any differently.  In
addition, the jury was read earlier trial testimony in which Ned's
mother clearly suggested that she thought that the house was hers
and her husband's.  One of Ned's experts testified that if Ned's
parents thought that the house was theirs, Ned would still have had
to take his parents to court in order to remove his parents from
the house.  The same expert stated that this would have been the
case even if the firm had contacted Ned about Joe's 1985 attempt to
transfer the property to himself.  These and other points provide
ample basis for the jury's conclusion.
          In this case, we conclude that questions concerning the
extraordinariness of any alleged forgery cannot be decided as a
matter of law, and were therefore for the jury to determine.  We
accordingly hold that the superior court did not err in giving the
jury a superseding causation instruction.
     C.   The Superior Court Did Not Err in Its Handling of the
Jury Poll.

          Ned argues that the superior court committed reversible
error in its handling of the jury poll.  He asserts that the court
should have sent out the jury for further deliberation because it
appeared that the jury did not agree on a verdict.  We hold that
Ned has waived his arguments on this issue.
          After the jury announced its decision, the superior court
polled the jury at the request of Ned's attorney.  Three of the
jurors appeared to say "no" when the court asked if the verdict
just read was their true and correct verdict on the legal causation
          At least two members of the jury then stated that eleven
jurors had agreed on the verdict, thereby suggesting that at least
two jurors had misunderstood the court's question regarding whether
the verdict just read was true and correct.  The court accordingly
asked all of the members of the jury that agreed with the verdict
to raise their hands.  The record reflects that eleven jurors did
so.  When the court asked Ned's attorney if he was "satisfied . . .
that the numbers add up," Ned's attorney replied, "Yes."  The court
then excused the jury without objection from Ned or his attorney. 
          We have consistently followed the waiver rule, [Fn. 24]
under which litigants waive their "right to challenge the
consistency of a jury's verdict if [they fail] to raise the issue
and move for resubmission prior to the jury's discharge." [Fn. 25] 
In Grow v. Ruggles, [Fn. 26] we explicitly stated that merely
polling the jury is not enough to avoid the waiver rule: [Fn. 27] 
"To achieve the efficiency the waiver rule is designed to promote,
and to avoid the jury shopping it is designed to prevent, counsel
must do more than simply poll the jury; he/she must also ask the
jury to re-examine its decision." [Fn. 28]
          In this case, Ned does not challenge the consistency of
the jury's verdict.  Instead, he suggests that the jury did not
actually reach consensus, and argues that the superior court should
therefore have sent out the jury for further deliberation. 
          We hold that the waiver rule governs the present
situation.  The policies of promoting efficiency and avoiding jury
shopping apply equally well to situations in which a litigant
believes that the jury has not actually reached consensus. If a
jury poll leads a litigant to believe that consensus has not been
reached, he or she must request that the jury be sent out for
further deliberation before the jury is excused.  Here, Ned's
attorney allowed the jury to be excused without objection and even
admitted that he was "satisfied . . . that the numbers add up."  We
accordingly hold that Ned has waived his right to argue that the
superior court erred in failing to send the jury out for further
          The jury found that the firm's legal malpractice was not
the legal cause of Ned's damages.  Because the superior court did
not err in precluding Ned's experts from making use of deposition
testimony and in instructing the jury on superseding causation, and
because Ned waived his argument that the superior court erred in
handling the jury poll, we AFFIRM.


Footnote 1:

     Warren A. Taylor II, an attorney at Aglietti, Rodey & Offret,
is also a defendant in this lawsuit.  For the sake of simplicity,
both Taylor and the firm will be referred to collectively as "the

Footnote 2:

     The statements of fact in this section are drawn from Griffith
v. Taylor (Griffith I), 937 P.2d 297 (Alaska 1997).

Footnote 3:

     Aglietti, Rodey & Offret is the successor partnership to
Aglietti, Pennington & Rodey.

Footnote 4:

     See Griffith I, 937 P.2d at 299.

Footnote 5:

     No. 4FA-89-775 Ci. (Alaska Super., May 18, 1992).

Footnote 6:

     See Griffith I, 937 P.2d at 300 (citing Griffith, No. 4FA-89-
775 Ci., at 4-5).

Footnote 7:


Footnote 8:


Footnote 9:

     See id. at 309.

Footnote 10:

     See id. at 306.

Footnote 11:

     See id.

Footnote 12:

     See id. at 309.

Footnote 13:

     Id. at 308 (internal quotation marks omitted) (quoting
Restatement (Second) of Agency sec. 343 (1958)).

Footnote 14:

     See id.

Footnote 15:

     See Miller v. Phillips, 959 P.2d 1247, 1250 n.2 (Alaska 1998)
(citation omitted).

Footnote 16:

     Red Top Mining, Inc. v. Anthony, 983 P.2d 743, 745-46 (Alaska
1999) (internal quotation marks omitted) (quoting Melendrez v.
Bode, 941 P.2d 1254, 1256 (Alaska 1997)).  

Footnote 17:

     See Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997).

Footnote 18:

     See Griffith I, 937 P.2d at 309.

Footnote 19:

     The firm states that at trial, "there was no evidence going to
the genuineness of the signature on the April 1987 deed."  Ned,
however, does not argue that the jury was presented with no
evidence of forgery.  He has therefore waived the argument that the
superior court erred in giving the superseding causation
instruction because such an instruction was not supported by the
evidence.  See State v. O'Neill Investigations, Inc., 609 P.2d 520,
528 (Alaska 1980) ("Failure to argue a point constitutes an
abandonment of it."). 

Footnote 20:

     The relevant instruction provided:
               Even if you find that the defendant was
professionally negligent and that his conduct was an actual cause
of the plaintiff's injury, you may find that the defendant's
conduct was not a legal cause of the injury.  A defendant's conduct
is not the legal cause of injury where it appears highly
extraordinary that the defendant's negligent conduct should have
brought about the harm.
               A resulting harm is extraordinary when it
would not have occurred without the act of a third person or other
force following the defendant's negligence.  This intervening force
is a "superseding cause" which relieves the defendant from
liability.  An intervening force that lies within the scope of the
foreseeable risk, or has a reasonable connection to it, is not a
superseding cause.
               Under ordinary circumstances it may be
reasonably assumed that another person will not violate the
criminal law.  The act of a third person in committing a crime is
a superseding cause relieving the defendant of liability unless (1)
the act or conduct constituting legal malpractice created the
situation that afforded an opportunity for a third person to commit
a forgery, (2) the defendant realized or should have realized that
he was affording an opportunity for the third person to commit a
crime, and (3) that the third person might avail himself of the
opportunity to commit a crime.

Footnote 21:

     Williford v. L.J. Carr Invs., Inc., 783 P.2d 235, 237 (Alaska
1989) (citing Dura Corp. v. Harned, 703 P.2d 396, 403 (Alaska

Footnote 22:


Footnote 23:

     Chenega Corp. v. Exxon Corp., 991 P.2d 769, 798 (Alaska 1999)
(stating general rule that "a criminal act will ordinarily break
the chain of causation," but noting that "this general rule does
not excuse the factfinder from examining the foreseeability of the
intervening act").

Footnote 24:

     See Nelson v. Progressive Corp., 976 P.2d 859, 864 (Alaska

Footnote 25:

     Id. at 863 (citing City of Homer v. Land's End Marine, 459
P.2d 475, 480 (Alaska 1969)).

Footnote 26:

     860 P.2d 1225 (Alaska 1993).

Footnote 27:

     See id. at 1227.

Footnote 28: