Arthur O. SARTI, Appellant,
Stewart L. UDALL and Morris K. Udall, Appellees.
Rehearing Denied April 3, 1962.
[91 Ariz. 25] Glenn Ginn, Tucson, for appellant.
Chandler, Tullar & Udall, Tucson, for appellees.
BERNSTEIN, Chief Justice.
Arthur O. Sarti, hereinafter called 'plaintiff,' filed a complaint against his attorneys Stewart L. Udall and Morris K. Udall, as a partnership, for the alleged negligence of Morris K. Udall, hereinafter called 'defendant', in the matter of defending plaintiff. He alleged he hired defendant as his attorney to represent him in an action wherein the plaintiff's wife sought a divorce. During the negotiations leading to a property settlement agreement, plaintiff insisted that the carport, held by him and his spouse in joint tenancy, be divided equally and so instructed his attorney. The defendant on that understanding had opposing counsel prepare the property settlement agreement. The defendant admits that plaintiff was reluctant to sign the agreement when presented to him, but did so after the defendant assured him the instrument he was signing would give him title to one-half of the carport. Thereafter it was determined that the legal description contained in such agreement did not give plaintiff title to any of the carport.
The defendant filed a general denial to plaintiff's complaint and moved for summary judgment supported by four affidavits and plaintiff's deposition on the ground that there was no genuine issue of a material fact to be tried. Plaintiff filed a controverting affidavit. Judgment was granted for the defendant, and this appeal followed.
The sole question presented is whether the trial court correctly entered summary judgment for defendant.
A motion for summary judgment should not be granted if upon an examination of the entire record it is determined that there is a disputed fact which, if true, could affect the final judgment. Therefore, the question becomes whether a genuine issue of fact is presented by the record, and not, if one exists, how it should be decided. [91 Ariz. 26] Northen v. Elledge, 72 Ariz. 166, 232 P.2d 111 (1951). A motion for summary judgment is not a trial by affidavits. Peterson v. Valley National Bank, Ariz., 368 P.2d 317 (No. 7067 decided January 24, 1962).
In resolving the question framed above, the record must be viewed in the light most favorable to the party opposing the motion for summary judgment. Peterson v. Valley National Bank, supra. Plaintiff alleges in his complaint, affidavit and deposition that defendant was negligent in respect to the property settlement agreement, to wit: that defendant after being instructed by plaintiff to obtain for him title to half of the carport assured plaintiff that the agreement as drawn gave plaintiff just that.
An attorney is required as respects his client to exercise such skill, care and diligence as are common in such matters as professional employment.
'When a person adopts the legal profession and assumes to exercise its duties in behalf of another for hire, he must be understood as promising to employ a reasonable degree of care and skill in the performance of such duties; and if injury results to the client from a want of such a degree of reasonable care and skill, the attorney may be held to respond in damages to the extent of injuries sustained. * * * if he [attorney] acts with a proper degree of skill and with reasonable care and to the best of his knowledge, he will not be held responsible.' National Savings Bank of District of Columbia v. Ward, 100 U.S. 195, 25 L.Ed. 621 (1880).
Good faith must exist on the part of the attorney toward his client and when this is shown, the absence or presence of reasonable skill and diligence must in each case be determined by its own facts. What may be a reasonable degree of care and skill in the performance of an attorney's duty must be decided in the light of all the facts and circumstances of the case. It is exceedingly difficult, if not utterly impossible, to lay down any general rule which would control the measure of the liability in all cases. Based on the record in this case a material issue of fact is presented as to whether the defendant employed a reasonable degree of care and skill in the performance of his duties and it was error of the trial court to resolve such issue by affidavit.
Reversed and remanded for trial.
LOCKWOOD, J., and CHARLES P. ELMER, Superior Court, Judge, concur.
NOTE: UDALL, V. C. J., having disqualified himself, the Honorable CHARLES P. ELMER, Judge of the Superior Court of Mohave County, Arizona, was called to sit in his stead and ...