Konesky v. Keller

Can a Montana Court Throw Out a Legal Malpractice Claim Before Expert Disclosures Are Due? Konesky v. Keller, 2021 MT 214N

Boland Aarab PLLP

In Konesky v. Keller, 2021 MT 214N, the Montana Supreme Court reversed a summary judgment that had ended a rancher’s legal malpractice claim against the law firm that handled the sale of his family ranch. The Court held that the undisputed attorney-client relationship established the firm’s duty, and that ruling on breach before the deadline for expert testimony was premature. Konesky is a noncitable memorandum opinion: it is not precedent and may not be cited, but it applies settled Montana rules.

Key Takeaways

• Konesky was decided by memorandum opinion. It “shall not be cited and does not serve as precedent” (Konesky ¶ 1).
• An undisputed attorney-client relationship “is sufficient to establish the existence of” the lawyer’s duty of reasonable care and skill (¶ 12).
• What “reasonable care and skill” requires is established through expert testimony, so a malpractice plaintiff “cannot at this point be faulted” for lacking that evidence before the expert deadline (¶ 13).
• Causation stayed open because the client’s damages claims against the buyer had not yet been resolved (¶ 13).

In this case sheet: At a glance · What the Court held · What changed · Rules · When it applies · How hard · FAQ

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At a glance

What did the Montana Supreme Court hold in Konesky v. Keller?

Thomas Konesky owned a Great Falls ranch that had been in his family since the 1940s. When he agreed in 2012 to sell it to Kevin Keller, a key term was that he and his wife could keep living in the farmhouse rent-free (¶¶ 3–4). He hired the law firm Church, Harris, Johnson & Williams (CHJW) to handle the sale. The firm drafted most of the documents. But the residential lease came from the buyer’s lawyer, and it let the buyer end the lease if the house was destroyed by fire (¶ 4).

In September 2017 the house burned down. Six days later, the buyer terminated the lease (¶ 5). The sale documents required fire insurance jointly payable to both men. Instead, the buyer bought $175,000 of coverage payable only to himself and used the proceeds to pay down his debt rather than rebuild (¶ 5). In depositions it came out that the firm’s attorney had drafted her own lease without that fire clause, but it was never shown to Mr. Konesky or to the buyer’s lawyer (¶ 7).

Mr. Konesky sued the buyer and the law firm. The district court granted him summary judgment on liability against the buyer, leaving damages for trial (¶ 8). It then granted the law firm summary judgment on the malpractice claim. It reasoned that no legal duty had been shown and that the buyer’s liability meant the firm caused no damage (¶¶ 8, 11).

The Supreme Court reversed:

1. Duty. The district court had rejected “duties” Mr. Konesky never claimed. The duty he actually alleged was the ordinary duty to use reasonable care and skill in handling the transaction. The attorney-client relationship, which no one disputed, was enough to establish it (¶¶ 11–12).
2. Breach. Whether the firm met the standard of care is a question for expert testimony. The order came “before the close of discovery and before the deadline to produce expert testimony,” so disputed facts remained (¶ 13).
3. Causation. Because the damages claims against the buyer were unresolved, it was still an open question whether the firm’s alleged failures caused Mr. Konesky harm (¶ 13).

The Court also rejected the firm’s argument that Mr. Konesky had to file a Rule 56(f) affidavit explaining why expert evidence was unavailable, where the expert deadline had not yet arrived (¶ 13 n.1).

What did Konesky change in Montana law?

Nothing, formally. As a memorandum opinion, Konesky “shall not be cited and does not serve as precedent” (¶ 1). The Court decided it as a memorandum opinion because the published rules it applied already answered the question (¶ 14). Those rules are:

• the four elements of legal malpractice: duty, breach, injury and proximate cause (Labair v. Carey, 2012 MT 312, ¶ 20, quoted at ¶ 10);
• with limited exceptions, “only expert testimony can establish the standard of care in a legal malpractice case” (Babcock Place P’ship v. Berg, Lilly, 2003 MT 111, ¶ 21, quoted at ¶ 10);
• the existence of a legal duty is a question of law (Wood v. Anderson, 2017 MT 180, ¶ 25, cited at ¶ 10).

Its value is as an example of how those rules protect a plaintiff who has not yet had the chance to present expert evidence.

Which Montana laws and rules apply?

• M. R. Civ. P. 56: summary judgment, including Rule 56(f), when affidavits are unavailable (¶¶ 9, 13 n.1)
• M. R. Civ. P. 54: judgments, including Rule 54(b) certification, which let this appeal proceed while the rest of the case was pending (¶ 8)

When might Konesky apply to you?

• A deal your lawyer handled did not protect what you bargained for. The duty of reasonable care comes from the attorney-client relationship itself. What that duty required in your transaction is proven through expert testimony (¶¶ 12–13).
• A defendant moves for summary judgment before expert deadlines. In many injury and professional-negligence cases, the standard of care and causation depend on experts. The published cases Konesky applies explain why a court should not decide those questions before the record is complete.
• Two defendants point at each other. One defendant’s liability does not automatically clear another defendant whose conduct may also have contributed to the loss (¶¶ 8, 13).

Because Konesky is not precedent, arguments in a new case should rest on the published decisions it applies.

How hard is it to win a summary judgment appeal in Montana?

The standard is more favorable to appellants than in many appeals, but the rules are strict:

• The Supreme Court reviews summary judgment de novo, without deferring to the district court (¶ 9).
• Summary judgment is proper only when “there is no genuine issue as to any material fact” and the moving party “is entitled to judgment as a matter of law” (¶ 9, quoting M. R. Civ. P. 56(c)(3)).
• A malpractice plaintiff must prove all four elements, and with limited exceptions must prove the standard of care through expert testimony (¶ 10). Once the expert deadline passes, a plaintiff without that evidence may not be able to survive summary judgment.

What made Konesky winnable was timing and precision: the order came before the expert deadline (¶ 13). The district court had also ruled against duties the plaintiff never claimed rather than the one he did (¶ 11).

The Boland Aarab Way

Boland Aarab PLLP represented Mr. Konesky in this appeal and won back his claim in the Supreme Court. We handle every case from the first call to the finish. It is the same work we bring to serious trucking and injury cases and catastrophic injury cases. When you hire Boland Aarab, you work directly with the attorneys whose names are on opinions like this one.

Frequently Asked Questions

Do I need an expert to prove legal malpractice in Montana? Usually. With limited exceptions, “only expert testimony can establish the standard of care in a legal malpractice case” (Babcock Place, 2003 MT 111, ¶ 21, as quoted in Konesky ¶ 10).

Does my lawyer owe me a duty just because I hired them? Yes. An attorney-client relationship is sufficient to establish the lawyer’s duty to use reasonable care and skill in handling the client’s affairs (Konesky ¶ 12, citing Labair, ¶¶ 17–18).

Can I cite Konesky v. Keller in my own case? No. It is a noncitable memorandum opinion that “does not serve as precedent” (Konesky ¶ 1). Cite the published cases it relies on, such as Labair v. Carey, 2012 MT 312, and Babcock Place, 2003 MT 111.

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court and the Ninth Circuit handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• Konesky v. Keller, 2021 MT 214N (official opinion)
• Konesky v. Keller, DA 23-0020, Order of Dismissal with Prejudice (May 4, 2023)
• M. R. Civ. P. 56
• M. R. Civ. P. 54

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.