Professional Negligence Law Reporter

The Nevada Supreme Court held that although a legal negligence plaintiff is not required to pursue a futile appeal of an underlying matter before filing a professional negligence lawsuit, such a cause of action fails where the plaintiff cannot show a better outcome would have occurred absent an attorney’s negligence.

Building Tectonics, Inc., performed renovation work for the tenant of a property owned by Rialto, LLC. Building Tectonics later placed a mechanic’s lien on Rialto’s property and retained attorney Sean Brohawn to collect on the lien. Brohawn failed to file a joint case conference report, however, and the case was dismissed. Building Tectonics then sued Brohawn for legal malpractice. The court found for the defense and later denied the plaintiff’s motion to alter or amend the judgment.

Affirming, the state high court noted that a legal malpractice claim arises where an attorney breaches a duty owed to his or her client and that breach is the proximate cause of the client’s damages. Citing case law, the court said a legal malpractice claim is premature unless there has been a final adjudication of the underlying case; however, a party is not obligated to pursue a futile appeal. The court agreed with the plaintiff that the district court had erred in holding that an appeal of the order dismissing the underlying case would not have been futile. The record reflects that an appeal would most likely have been denied, the court said.

Turning to the plaintiff’s substantive claim, the court considered whether the plaintiff could have obtained a better result in the underlying litigation absent the defendant’s alleged negligence. The court found that the plaintiff could not have succeeded on its breach of contract claim against Rialto because the two did not have a contractual relationship. Moreover, the court concluded that the plaintiff would not have succeeded on its mechanic’s lien claim against Rialto, noting that the record did not show that Rialto had actual notice of the plaintiff’s improvements to its property. An unjust enrichment theory also is unavailing, the court said, citing the plaintiff’s failure to establish the value of the improvements it had made to Rialto’s property.

Thus, the court found that the plaintiff had failed to prove it would have achieved a better result in the underlying case but for the attorney’s alleged negligence. Consequently, the district court did not err in entering judgment for the defense.

Citation: Building Tectonics, Inc. v. Brohawn, 476 P.3d 436 (Nev. 2020).