September 19 2011
DA 11-0082
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 230
JOHN 0. MILLER,
Plaintiff and Appellant,
V. FJ1I)TT,
PATRICK G. BEGLEY, SEP 19 2011
Defendant and Appellee.
CLt< O TfritUi:t -
STATE OF MON
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DV 09-82
Honorable Ingrid Gustafson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John 0. Miller (self-represented), Deer Lodge, Montana
For Appellee:
Penelope S. Strong, Attorney at Law, Billings, Montana
Submitted on Briefs: August 17, 2011
Decided: September 19, 2011
Filed:
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 John 0. Miller (Miller) appeals from an order of the Twenty-Second Judicial District
Court, Carbon County, granting summary judgment to Patrick G. Begley (Begley) and
dismissing Miller's claims against Begley.
¶2 The sole issue on appeal is whether the District Court erred in granting summary
judgment to Begley.
BACKGROUND
¶3 In 1991, Miller pled guilty to two counts of deliberate homicide. Attorney James
Goetz (Goetz) defended Miller against the homicide charges. In 2004, Goetz represented
Miller in a matter regarding Miller's parole restriction. Unhappy with Goetz' s representation
in the parole matter, Miller sued Goetz for breach of contract, breach of express warranty,
and breach of the covenant of good faith and fair dealing.
¶4 With the assistance of his mother and brother, Miller arranged for Begley to represent
him on a limited basis, mainly to obtain discovery for his claim against Goetz. The
relationship between Miller and Begley deteriorated within months, and Begley withdrew
from representing Miller. Ultimately, Goetz obtained summary judgment against Miller, and
the case was dismissed.
¶5 Miller then filed the present lawsuit against Begley, alleging breach of contract (two
counts), breach of the covenant of good faith and fair dealing, and fraudulent deceit. Begley
moved for summary judgment, which the District Court granted on the basis that Begley had
oil
reasonably assisted Miller with his claims against Goetz, and the dismissal of the Goetz claim
was based on legal deficiencies unrelated to Begley's legal services.
¶6 Miller appeals.
STANDARD OF REVIEW
¶7 This Court reviews a district court's summary judgment ruling de novo, applying the
same M. R. Civ. P. 5 6(c) criteria as the district court applied. Ternes v. St. Farm Fire & Gas.
Co., 2011 MT 156,J 18, 361 Mont. 129, 257 P.3d 352.
DISCUSSION
¶8 Whether the District Court erred in granting summary judgment to Begley.
¶9 On appeal, Miller asserts genuine issues of material fact exist that preclude summary
judgment on all of his claims against Begley. Specifically, Miller argues summary judgment
on his breach of contract claims is not appropriate because he offered tangible evidence—
affidavits from his mother and brother and recorded telephone conversations between himself
and Begley—that Begley promised to pursue Miller's claims against Goetz and depose
Goetz, but did not do so. Miller asserts his bad faith claim is not precluded by summary
judgment because he demonstrated that although Begley eventually withdrew from
representation, claiming the Goetz claim was without merit, Begley was aware of the facts of
Miller's lawsuit against Goetz from the beginning and still agreed to provide services and
accepted payment. Finally, Miller argues his deceit claim should survive summary judgment
because the affidavits of his mother and brother demonstrate that while Begley promised
3
them he would depose Goetz, he had actually "covertly" met with Goetz's attorney and had
agreed to waive all of Miller's discovery rights and forgo deposing Goetz.
¶10 When reasonable minds cannot differ, questions of fact can be determined as a matter
of law on a motion for summary judgment. Schmidt v. Wash. Contractors Group, Inc., 1998
MT 194, ¶ 6, 290 Mont. 276, 964 P.2d 34. The party moving for summary judgment bears
the initial burden of establishing both the absence of genuine issues of material fact and
entitlement to judgment as a matter of law. Ternes, ¶ 18. We must view the evidence in a
light most favorable to the party opposing summary judgment, and all reasonable inferences
will be drawn in favor of that party. Ternes, ¶ 18. Once the moving party has met its initial
burden, the burden shifts to the party opposing summary judgment to demonstrate substantial
evidence exists, as opposed to mere denial, speculation, or conclusoiy statements, raising a
genuine issue of material fact. Ternes, ¶ 18.
¶11 We conclude the District Court did not err in granting summary judgment to Begley.
Miller's breach of contract claims against Begley are based upon his allegation that Begley
agreed to perform six specific legal services.' However, as the District Court noted, the
record shows Begley only agreed to assist Miller with discovery and, therefore, retained the
right to exercise his professional judgment. Letters from Begley to Miller and/or his family
are instructive on the scope of the parties' agreement. For instance, Begley wrote in a July
Miller alleges Begley promised to (1) review the entire case file for Miller's lawsuit against Goetz; (2)
prepare and submit affidavit testimony of Miller and his mother and brother; (3) prepare, serve, and submit
requests for admission and interrogatories from Goetz; (4) depose Goetz; (5) amend Miller's lawsuit against
Goetz to include theories of legal malpractice and misrepresentation; and (6) represent and defend Miller at any
summary judgment proceedings.
4
23, 2008, letter: "Our agreement was and still remains [that] I would provide limited
representation for purposes of assisting [Miller] with discovery and depositions." The record
demonstrates the parties did not have an express agreement that Begley conduct six specific
services, and affidavits from Miller's mother and brother are not sufficient to meet Miller's
burden of establishing the existence of genuine issues of material fact. See Sherrard v
Prewett, 2001 MT 228, ¶ 15, 306 Mont. 511, 36 P.3d 378 (conclusory statements are
insufficient to raise genuine issues of material fact).
¶12 In addition, Miller has failed to demonstrate genuine issues of material fact exist
regarding his bad faith claim. Although Miller claims Begley led Miller and his family on,
the record demonstrates Begley repeatedly informed Miller and his family that Miller's
claims lacked merit, were unlikely to succeed, and were a waste of resources. Miller,
apparently fixated upon procuring Goetz's deposition and related discovery, ignored Begley's
warnings and advice. We agree with the District Court that no reasonable person could
interpret Begley's conversations with Miller as supporting a finding that Begley made
misrepresentations to Miller in an attempt to swindle his family out of money.
¶13 Similarly, Miller has failed to set forth evidence that precludes summary judgment on
his claim Begley deceived him. Contrary to Miller's assertion that Begley deceived him
about obtaining Goetz's deposition, the record demonstrates Begley indicated to Miller that
deposing Goetz might be futile as he felt "[the district court] was moved by the argument
that's written by [Goetz] stating that, hey, there is no genuine issue of material fact." Begley
5
further elaborated: "I strongly believe that the judge is going to rule on issues that are not
even close to anything that Goetz is going to say. He's going to rule on the fact, he, he's
hammered on me three points of law today." Miller's claim that Begley deceitfully promised
to depose Goetz is merely a self-serving assertion, which is unsupported by the record. See
Sherrard, ¶ 15.
CONCLUSION
T14 Miller has failed to demonstrate any genuine issues of material fact exist that preclude
summary judgment in the present case.
¶15 Affirmed.
/tice
We Concur:
Chief Justice
Is
Justice Jim Rice, concurring in part and dissenting in part.
¶16 With regard to Miller's claim for fraudulent deceit, I agree with the District
Court's conclusion, referenced in ¶ 12 of the Court's Opinion, that "[n]o reasonable
person could interpret [the evidence] to support a finding that Begley made
misrepresentations to Miller to swindle money in attorney's fees from Miller." Thus, I
would affirm the entry of summary judgment on the fraud claim.
¶17 Regarding the breach of contract claims, the Court reasons, as the District Court
did, that Miller did not produce sufficient evidence to establish, for summary judgment
purposes, that the parties had an express agreement that Begley would conduct six
specific services. While I can agree with this conclusion in regard to an agreement for
"six specific services," I believe Miller produced sufficient evidence to establish that
Begley orally agreed to complete specific discovery work, which he then failed to
complete as agreed.
¶18 The District Court noted that "[b]oth parties acknowledge Begley agreed to assist
Miller with discovery in his case against Goetz, his prior attorney." Specifically, Miller's
complaint alleged that Begley contracted to "Prepair [sic], Serve and Submit written
discovery in the form of requests for Admission and Interrogatories from defendant
James Goetz for Summary Judgment Proceedings on behalf of Plaintiff John 0. Miller"
and also to "Prepair [sic] take and Submit deposition testimony. . . from defendant James
H. Goetz for Civil Cause No. DV-07-361B for Summary Judgment Proceedings." These
were two of the six services Miller alleged Begley agreed to undertake. Miller submitted
7
the affidavits of his mother and brother which aver that Begley personally told them he
would perform these two services, as well as his own affidavit swearing that Begley
discussed that with Miller as well.
T19 As additional support, Miller subpoenaed from the Department of Corrections the
recording of telephone conversations between him and Begley, which were transcribed
by a third party.' The transcript included the following statements by the parties:
Begley: What I can do is I can tell you that the, you hired me to get the
discovery. The discovery is being provided and it will be answered by
Goetz. And that was the understanding that we have, and I'm going to
make sure that the court is aware of our understanding and in the event that
they try to do something and then we'll go forward with a motion to
compel. We're also going to be moving to suspend judgment until the
discovery is completed.
Miller: So you're, you're promising to me right now that we're going to
get that discovery.
Begley: John, I'm promising that I'm going to be submitting the discovery
to Mr. Goetz, and I have been promised that Goetz is going to fill out that
discovery. I make no other promises.
Miller: Well, and you'll compel and we'll, we'll be able to compel him if
he doesn't answer.
Begley: If he fails to answer, we will be able to compel.
The third party, a secretarial service, provided a certification that the transcription of the
telephone conversation as set forth on the disks provided by Miller was true and accurate to the
best of the transcriber's ability. The accuracy of the transcription has not been contested or the
use of the evidence challenged, although Begley asks that the entirety of Miller's brief be
stricken.
Miller: so I'm going to get me discovery even though we, we're passed the
deadline. I shouldn't worry about it.
Begley: That's correct.
Begley: And so then, now I can't promise you what his answer is going to
be. That would be foolish.
Miller: But you can, but you're telling me we, you're telling me we'll be
able to compel him legally in court, in Salvagni's court to answer them.
Begley: Yeah, if he doesn't answer or if he fails to answer, yes, that's
right.
Despite Begley's assurances that he had agreed to obtain discovery from Goetz and
would do so, even by compulsion if necessary, he didn't. Instead, after initially giving
notice of Goetz's deposition, Begley, according to Miller's affidavits and exhibits,
cancelled the deposition in favor of Goetz's participation in an informal meeting.
According to the letter of August 18, 2008, from Todd Stubbs, Goetz's counsel, to
Begley, outlining the arrangement:
Mr. Goetz will make himself available on August 29, 2008 to field your
questions regarding Mr. Miller's sentencing in 1991. The meeting will take
place in Bozeman at a time and place of Mr. Goetz's choosing. Mr. Goetz
reserves the right to decline to answer any questions he deems irrelevant,
inappropriate, or otherwise.
This meeting is informal and will be convened for the sole purpose
of attempting to settle this matter. Accordingly, any communications made
during this meeting are inadmissible under Mont. R. Evid. 408.
Please also be advised that Mr. Goetz is cancelling your client's
deposition set for August 21, 2008.
Then, as a sanction for Begley's failure to answer Miller's discovery requests after being
ordered to do so, the District Court entered an order which deemed as admitted Miller's
requests for admission that were unanswered by Begley. 2 That sanction had the effect of
attributing various statements and actions to Begley, including his statement that, if the
case did not settle, obtaining Goetz's deposition would be necessary before proceeding to
the summary judgment hearing, and his admission that, at the time he filed notice to
depose Goetz on Miller's behalf, Begley had already agreed with Stubbs to cancel the
deposition.
¶20 Though often misfiring in these proceedings, Miller marshaled, in my view,
sufficient evidence to establish for purposes of summary judgment that Begley orally
contracted with Miller to complete specific discovery tasks and submit the discovery in
the lawsuit, but that Begley failed to follow through as agreed. This was an agreement
for limited representation, a practice recently approved by Court rules. While the District
Court was undoubtedly correct in concluding that Miller's claims against Goetz "had
essentially no chance of success"—even without regard to Begley's alleged
deficiencies—Miller could still obtain a judgment against Begley for the legal fees paid,
under his breach of contract theory. I would reverse the entry of summary judgment on
Miller's contract claims and remand for further proceedings.
2
The discovery abuse was not one-sided. Begley's motion to declare Miller a vexatious litigant
was partially granted by the District Court, wherein it stated "[i]t appears Miller has attempted to
cause Begley an undue hardship by attempting to abuse the discovery process and now attempts
to burden Begley and this Court with excessive and unnecessary motions . . . ." This ruling is
not challenged on appeal.
10
11
DA 11-0082
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 230
JOHN 0. MILLER,
Plaintiff and Appellant,
V. F' I i 111. IT
PATRICK G. BEGLEY, SEP 192011
Defendant and Appellee. 2:1
OLERK OF THE
S TATE O MCN cj
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DV 09-82
Honorable Ingrid Gustafson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John 0. Miller (self-represented), Deer Lodge, Montana
For Appellee:
Penelope S. Strong, Attorney at Law, Billings, Montana
Submitted on Briefs: August 17, 2011
Decided: September 19, 2011
Filed:
Q9 Au~~_
4/
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 John 0. Miller (Miller) appeals from an order of the Twenty-Second Judicial District
Court, Carbon County, granting summary judgment to Patrick G. Begley (Begley) and
dismissing Miller's claims against Begley.
¶2 The sole issue on appeal is whether the District Court erred in granting summary
judgment to Begley.
BACKGROUND
¶3 In 1991, Miller pled guilty to two counts of deliberate homicide. Attorney James
Goetz (Goetz) defended Miller against the homicide charges. In 2004, Goetz represented
Miller in a matter regarding Miller's parole restriction. Unhappy with Goetz's representation
in the parole matter, Miller sued Goetz for breach of contract, breach of express warranty,
and breach of the covenant of good faith and fair dealing.
¶4 With the assistance of his mother and brother, Miller arranged for Begley to represent
him on a limited basis, mainly to obtain discovery for his claim against Goetz. The
relationship between Miller and Begley deteriorated within months, and Begley withdrew
from representing Miller. Ultimately, Goetz obtained summary judgment against Miller, and
the case was dismissed.
¶5 Miller then filed the present lawsuit against Begley, alleging breach of contract (two
counts), breach of the covenant of good faith and fair dealing, and fraudulent deceit. Begley
moved for summary judgment, which the District Court granted on the basis that Begley had
2
reasonably assisted Miller with his claims against Goetz, and the dismissal of the Goetz claim
was based on legal deficiencies unrelated to Begley's legal services.
¶6 Miller appeals.
STANDARD OF REVIEW
¶7 This Court reviews a district court's summary judgment ruling de novo, applying the
same M. R. Civ. P. 5 6(c) criteria as the district court applied. Ternes v. St. Farm Fire & Cas.
Co.,2011MT156,Jl8,361Mont. 129, 257 P.3d 3 52.
DISCUSSION
¶8 Whether the District Court erred in granting summary judgment to Begley.
¶9 On appeal, Miller asserts genuine issues of material fact exist that preclude summary
judgment on all of his claims against Begley. Specifically, Miller argues summary judgment
on his breach of contract claims is not appropriate because he offered tangible evidence—
affidavits from his mother and brother and recorded telephone conversations between himself
and Begley—that Begley promised to pursue Miller's claims against Goetz and depose
Goetz, but did not do so. Miller asserts his bad faith claim is not precluded by summary
judgment because he demonstrated that although Begley eventually withdrew from
representation, claiming the Goetz claim was without merit, Begley was aware of the facts of
Miller's lawsuit against Goetz from the beginning and still agreed to provide services and
accepted payment. Finally, Miller argues his deceit claim should survive summary judgment
because the affidavits of his mother and brother demonstrate that while Begley promised
3
them he would depose Goetz, he had actually "covertly" met with Goetz's attorney and had
agreed to waive all of Miller's discovery rights and forgo deposing Goetz.
¶10 When reasonable minds cannot differ, questions of fact can be determined as a matter
of law on a motion for summary judgment. Schmidt v. Wash. Contractors Group, Inc., 1998
MT 194, ¶ 6, 290 Mont. 276, 964 P.2d 34. The party moving for summary judgment bears
the initial burden of establishing both the absence of genuine issues of material fact and
entitlement to judgment as a matter of law. Ternes, ¶ 18. We must view the evidence in a
light most favorable to the party opposing summary judgment, and all reasonable inferences
will be drawn in favor of that party. Ternes, ¶ 18. Once the moving party has met its initial
burden, the burden shifts to the party opposing summary judgment to demonstrate substantial
evidence exists, as opposed to mere denial, speculation, or conclusory statements, raising a
genuine issue of material fact. Ternes, ¶ 18.
¶11 We conclude the District Court did not err in granting summary judgment to Begley.
Miller's breach of contract claims against Begley are based upon his allegation that Begley
agreed to perform six specific legal services.' However, as the District Court noted, the
record shows Begley only agreed to assist Miller with discovery and, therefore, retained the
right to exercise his professional judgment. Letters from Begley to Miller and/or his family
are instructive on the scope of the parties' agreement. For instance, Begley wrote in a July
Miller alleges Begley promised to (1) review the entire case file for Miller's lawsuit against Goetz; (2)
prepare and submit affidavit testimony of Miller and his mother and brother; (3) prepare, serve, and submit
requests for admission and interrogatories from Goetz; (4) depose Goetz; (5) amend Miller's lawsuit against
Goetz to include theories of legal malpractice and misrepresentation; and (6) represent and defend Miller at any
summary judgment proceedings.
4
23, 2008, letter: "Our agreement was and still remains [that] I would provide limited
representation for purposes of assisting [Miller] with discovery and depositions." The record
demonstrates the parties did not have an express agreement that Begley conduct six specific
services, and affidavits from Miller's mother and brother are not sufficient to meet Miller's
burden of establishing the existence of genuine issues of material fact. See Sherrard v.
Prewett, 2001 MT 228, ¶ 15, 306 Mont. 511, 36 P.3d 378 (conclusory statements are
insufficient to raise genuine issues of material fact).
¶12 In addition, Miller has failed to demonstrate genuine issues of material fact exist
regarding his bad faith claim. Although Miller claims Begley led Miller and his family on,
the record demonstrates Begley repeatedly informed Miller and his family that Miller's
claims lacked merit, were unlikely to succeed, and were a waste of resources. Miller,
apparently fixated upon procuring Goetz's deposition and related discovery, ignored Begley's
warnings and advice. We agree with the District Court that no reasonable person could
interpret Begley's conversations with Miller as supporting a finding that Begley made
misrepresentations to Miller in an attempt to swindle his family out of money.
¶13 Similarly, Miller has failed to set forth evidence that precludes summary judgment on
his claim Begley deceived him. Contrary to Miller's assertion that Begley deceived him
about obtaining Goetz's deposition, the record demonstrates Begley indicated to Miller that
deposing Goetz might be futile as he felt "[the district court] was moved by the argument
that's written by [Goetz] stating that, hey, there is no genuine issue of material fact." Begley
5
further elaborated: "I strongly believe that the judge is going to rule on issues that are not
even close to anything that Goetz is going to say. He's going to rule on the fact, he, he's
hammered on me three points of law today." Miller's claim that Begley deceitfully promised
to depose Goetz is merely a self-serving assertion, which is unsupported by the record. See
Sherrard, ¶ 15.
CONCLUSION
¶14 Miller has failed to demonstrate any genuine issues of material fact exist that preclude
summary judgment in the present case.
T15 Affirmed.
ustice
We Concur:
Chief Justice
Justice Jim Rice, concurring in part and dissenting in part.
¶16 With regard to Miller's claim for fraudulent deceit, I agree with the District
Court's conclusion, referenced in ¶ 12 of the Court's Opinion, that "[n]o reasonable
person could interpret [the evidence] to support a finding that Begley made
misrepresentations to Miller to swindle money in attorney's fees from Miller." Thus, I
would affirm the entry of summary judgment on the fraud claim.
¶17 Regarding the breach of contract claims, the Court reasons, as the District Court
did, that Miller did not produce sufficient evidence to establish, for summary judgment
purposes, that the parties had an express agreement that Begley would conduct six
specific services. While I can agree with this conclusion in regard to an agreement for
"six specific services," I believe Miller produced sufficient evidence to establish that
Begley orally agreed to complete specific discovery work, which he then failed to
complete as agreed.
¶18 The District Court noted that "[b]oth parties acknowledge Begley agreed to assist
Miller with discovery in his case against Goetz, his prior attorney." Specifically, Miller's
complaint alleged that Begley contracted to "Prepair [sic], Serve and Submit written
discovery in the form of requests for Admission and Interrogatories from defendant
James Goetz for Summary Judgment Proceedings on behalf of Plaintiff John 0. Miller"
and also to "Prepair [sic] take and Submit deposition testimony. . . from defendant James
H. Goetz for Civil Cause No. DV-07-361B for Summary Judgment Proceedings." These
were two of the six services Miller alleged Begley agreed to undertake. Miller submitted
7
the affidavits of his mother and brother which aver that Begley personally told them he
would perform these two services, as well as his own affidavit swearing that Begley
discussed that with Miller as well.
¶19 As additional support, Miller subpoenaed from the Department of Corrections the
recording of telephone conversations between him and Begley, which were transcribed
by a third party.' The transcript included the following statements by the parties:
Begley: What I can do is I can tell you that the, you hired me to get the
discovery. The discovery is being provided and it will be answered by
Goetz. And that was the understanding that we have, and I'm going to
make sure that the court is aware of our understanding and in the event that
they try to do something and then we'll go forward with a motion to
compel. We're also going to be moving to suspend judgment until the
discovery is completed.
Miller: So you're, you're promising to me right now that we're going to
get that discovery.
Begley: John, I'm promising that I'm going to be submitting the discovery
to Mr. Goetz, and I have been promised that Goetz is going to fill out that
discovery. I make no other promises.
Miller: Well, and you'll compel and we'll, we'll be able to compel him if
he doesn't answer.
Begley: If he fails to answer, we will be able to compel.
The third party, a secretarial service, provided a certification that the transcription of the
telephone conversation as set forth on the disks provided by Miller was true and accurate to the
best of the transcriber's ability. The accuracy of the transcription has not been contested or the
use of the evidence challenged, although Begley asks that the entirety of Miller's brief be
stricken.
[]
[']
Miller: so I'm going to get me discovery even though we, we're passed the
deadline. I shouldn't worry about it.
Begley: That's correct.
Begley: And so then, now I can't promise you what his answer is going to
be. That would be foolish.
Miller: But you can, but you're telling me we, you're telling me we'll be
able to compel him legally in court, in Salvagni's court to answer them.
Begley: Yeah, if he doesn't answer or if he fails to answer, yes, that's
right.
Despite Begley's assurances that he had agreed to obtain discovery from Goetz and
would do so, even by compulsion if necessary, he didn't. Instead, after initially giving
notice of Goetz's deposition, Begley, according to Miller's affidavits and exhibits,
cancelled the deposition in favor of Goetz's participation in an informal meeting.
According to the letter of August 18, 2008, from Todd Stubbs, Goetz's counsel, to
Begley, outlining the arrangement:
Mr. Goetz will make himself available on August 29, 2008 to field your
questions regarding Mr. Miller's sentencing in 1991. The meeting will take
place in Bozeman at a time and place of Mr. Goetz's choosing. Mr. Goetz
reserves the right to decline to answer any questions he deems irrelevant,
inappropriate, or otherwise.
This meeting is informal and will be convened for the sole purpose
of attempting to settle this matter. Accordingly, any communications made
during this meeting are inadmissible under Mont. R. Evid. 408.
Please also be advised that Mr. Goetz is cancelling your client's
deposition set for August 21, 2008.
Then, as a sanction for Begley' s failure to answer Miller's discovery requests after being
ordered to do so, the District Court entered an order which deemed as admitted Miller's
requests for admission that were unanswered by Begley. 2 That sanction had the effect of
attributing various statements and actions to Begley, including his statement that, if the
case did not settle, obtaining Goetz's deposition would be necessary before proceeding to
the summary judgment hearing, and his admission that, at the time he filed notice to
depose Goetz on Miller's behalf, Begley had already agreed with Stubbs to cancel the
deposition.
¶20 Though often misfiring in these proceedings, Miller marshaled, in my view,
sufficient evidence to establish for purposes of summary judgment that Begley orally
contracted with Miller to complete specific discovery tasks and submit the discovery in
the lawsuit, but that Begley failed to follow through as agreed. This was an agreement
for limited representation, a practice recently approved by Court rules. While the District
Court was undoubtedly correct in concluding that Miller's claims against Goetz "had
essentially no chance of success"—even without regard to Begley's alleged
deficiencies—Miller could still obtain a judgment against Begley for the legal fees paid,
under his breach of contract theory. I would reverse the entry of summary judgment on
Miller's contract claims and remand for further proceedings.
'The discovery abuse was not one-sided. Begley's motion to declare Miller a vexatious litigant
was partially granted by the District Court, wherein it stated "[i]t appears Miller has attempted to
cause Begley an undue hardship by attempting to abuse the discovery process and now attempts
to burden Begley and this Court with excessive and unnecessary motions . . . ." This ruling is
not challenged on appeal.
10
11