Ciccarello v. Davies

               IN THE SUPREME COURT OF THE STATE OF IDAHO
                              Docket No. 46340

MARK CICCARELLO,                                   )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
and                                                )        Boise, September 2019 Term
                                                   )
BAUS INVESTMENT GROUP, LLC                         )        Opinion filed: December 23, 2019
                                                   )
       Plaintiff,                                  )        Karel A. Lehrman, Clerk
                                                   )
v.                                                 )
                                                   )
JEFFREY BO DAVIES, and MARCUS,                     )
CHRISTIAN, HARDEE AND DAVIES, LLP                  )
                                                   )
       Defendants-Respondents,                     )
                                                   )
and                                                )
                                                   )
LOTUS VAPING TECHNOLOGIES, LLC;                    )
VAPOR    INVESTORS,  LLC;   MIKE                   )
RODGERS, LANCE CHURCHILL, SHAUN                    )
TRACY and ROBERT HENRY,                            )
                                                   )
       Defendants.                                 )

      Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
      County. Peter G. Barton, District Judge.

      The judgment of the district court is affirmed.

      Points Law, PLLC, Boise, for Appellant. Michelle Renae Points argued.

      Gjording Fouser, PLLC, Boise, for Respondent Marcus, Christian, Hardee, and
      Davies, LLP. Stephen Lee Adams argued.

      Eberle Berlin Turnbow & McKlveen, Boise, for Respondent Jeffrey Bo Davies.
      Daniel Richard Knowlton argued.




                                               1
BURDICK, Chief Justice.
          Mark Ciccarello and Baus Investment Group, LLC, appeal a decision by the district court
granting summary judgment in favor of Respondents Jeffrey Bo Davies and Marcus, Christian,
Hardee & Davies, LLP (“MCHD”). The district court ruled that Ciccarello’s case lacked the
requisite expert testimony to establish a genuine issue of material fact as to legal malpractice. We
affirm.
                   I.     FACTUAL AND PROCEDURAL BACKGROUND
          In February 2012, Mark Ciccarello formed a company named F.E.M. Distribution, LLC,
(“F.E.M.”) for the purpose of marketing and selling a product line called “Lotus Electronic
Cigarettes.”
          In 2013, Ciccarello faced federal criminal charges related to his operation of another
business that sold and marketed synthetic cannabinoids. As a result of the federal charges, some
of F.E.M.’s assets were seized by the federal government. To prevent further seizure of F.E.M.’s
remaining assets, Ciccarello contacted attorney Jeffrey Bo Davies, who had previously
represented Ciccarello in various business and personal matters.
          Ciccarello and Davies discussed options for safeguarding F.E.M.’s assets, which
included the possible sale of F.E.M. to another company. These discussions included several
possibilities for structuring the sale, should one occur. A Washington investment group showed
interest in F.E.M. and began negotiations with Davies and Ciccarello, but the sale was never
completed.
          Shortly thereafter, Davies drafted documents to form two new companies, Vapor
Investors, LLC (“Vapor”), and Baus Investment Group, LLC (“Baus”), which collectively
owned Lotus Vaping Technologies, LLC (“Lotus”). Vapor had a 55% ownership interest in
Lotus, and Baus had a 45% ownership interest. Davies put together a group of investors who
each held varying percentages of ownership interests in Vapor and Baus. The members of Vapor
and Baus orally agreed with Ciccarello that he would receive $2 million and a majority
ownership interest in Baus in exchange for the sale of F.E.M.’s assets to Lotus.
          Because the other investors were concerned about Ciccarello’s pending federal criminal
charges, the members agreed that Bob Henry would temporarily hold Ciccarello’s shares until
the federal charges were resolved. However, everyone understood the shares in Bob Henry’s
name actually belonged to Ciccarello. F.E.M. was then sold to Lotus for the purchase price of

                                                2
$50,000. Simultaneously, Ciccarello and a representative of Lotus executed an Independent
Contractor Agreement (“ICA”), drafted by Davies, that provided for 16 years of $10,000
monthly installment payments (close to $2 million total) to be paid to Ciccarello for his services
to Lotus as an independent contractor. This agreement also contained a termination provision
allowing Lotus to stop making monthly payments to Ciccarello during any period of
incarceration and allowing Lotus to terminate the agreement if certain conditions were met.
       Following F.E.M.’s sale to Lotus, Ciccarello continued to act as CEO and manage
operations. In January 2014, the federal government issued a letter stating it had no further
interest in Ciccarello’s involvement in Lotus. Soon thereafter, Ciccarello requested that his
shares in Baus be returned and that the sale documents be modified to reflect him as the owner of
the Baus shares. However, this was never done. In June 2014, Ciccarello was incarcerated due to
his federal criminal case. Lotus ceased making monthly payments to Ciccarello in July 2014 and
never resumed payments. At some point in 2014, Ciccarello was also ousted from Lotus by its
members and Bob Henry took over his role as CEO.
       In April 2016, Ciccarello filed a verified complaint and demand for jury trial against
Lotus, Vapor, Davies, Henry, and several other investors involved in the sale of F.E.M. to Lotus.
The complaint sought recovery of damages Ciccarello alleged he suffered as a result of the
structure of the sale and the conduct of Henry, Davies, and the investors following the sale. In
the fall of 2016, Ciccarello moved for—and the district court granted—leave to amend his
complaint to add MCHD as a party, as Davies was a partner in that law firm during the period
the alleged damages arose. Ciccarello’s claims against Davies and MCHD were negligence
claims asserting legal malpractice. Ciccarello’s claims against Lotus, Vapor, Henry, the other
investors, and all other parties except Davies and MCHD were subsequently dismissed with
prejudice pursuant to a stipulation for dismissal. Thus, the only remaining claims before the
district court were Ciccarello’s legal malpractice claims against Davies and MCHD.
       On June 19, 2017, all parties stipulated to a scheduling order setting the case for trial on
March 26, 2018, requiring that Ciccarello make his expert witness disclosures at least 150 days
before trial, and make any additional expert witness disclosures in rebuttal of the defendants’
expert disclosures at least 60 days before trial. On October 25, 2017, Ciccarello timely filed his
expert witness disclosure, identifying attorney Brian C. Larsen as an expert witness who was
expected to testify that: Davies drafted the F.E.M. sales documents in a way that was adverse to

                                               3
Ciccarello’s interests; Davies’ representation of Lotus in its purchase of F.E.M. from Ciccarello
was a violation of “the applicable standard of care”; proceeding with his representation of Lotus
in its purchase of F.E.M. from Ciccarello was also “a breach of the applicable standard of care”;
Davies had a duty under Idaho Rule of Professional Conduct 1.9 not to represent Lotus because
Ciccarello’s interests were adverse to those of Lotus; Davies breached his duty under Idaho Rule
of Professional Conduct 1.9 by failing to obtain Ciccarello’s consent to represent Lotus in the
sale; and, as a result of Davies’ breach, Ciccarello suffered $2 million in damages.
        Shortly after Ciccarello made his expert witness disclosure, Davies and MCHD moved
for summary judgment. Respondents argued that even if Davies represented Ciccarello at the
time of the F.E.M. sale, Davies was not negligent in his representation. Each party briefed the
motion and Ciccarello also moved for leave to amend his complaint a second time to add a claim
for punitive damages.
        In its memorandum in support of its motion                  for   summary       judgment      filed    on
November 20, 2017, MCHD argued that Ciccarello “ha[d] not proffered competent expert
testimony establishing that [Davies] failed to meet the applicable standard of care . . . .” In their
reply briefing filed on December 11, 2017, Davies and MCHD further refined their argument
regarding the deficiency of Ciccarello’s expert witness disclosures, explaining that Ciccarello
was required to provide expert affidavits1 under Greenfield v. Smith, 

, 

 (2017) to establish a prima facie case of legal malpractice and survive summary judgment.
The district court held a hearing on the motion for summary judgment on December 18, 2017.
There, Davies and MCHD argued that Ciccarello’s expert witness disclosures were insufficient,
and an affidavit previewing the expert’s testimony was required. Ciccarello took the position that
he did not need an expert affidavit to survive summary judgment and he would have his expert
testify at trial. The district court then took the matter under advisement.
        On January 24, 2018, Ciccarello filed a declaration of Brian C. Larsen, which he
designated as a “rebuttal expert disclosure.” The rebuttal expert disclosure explained that, in light
of Davies and MCHD’s expert disclosures, Brian C. Larsen was further expected to testify that:
the Idaho Rules of Professional Conduct provide a standard of care that Davies was required to


1
  Witnesses, including experts, may also provide unsworn declarations to satisfy this requirement under Idaho Code
section 9-1406 (2019). I.R.C.P. 56(c)(1)(A) also provides that declarations or affidavits may adequately support a
party’s factual positions at summary judgment.

                                                       4
meet; Davies was in an attorney-client relationship with Ciccarello at all relevant periods of time;
Davies had a duty to take necessary steps to ensure that the F.E.M. sale documents would be
modified at a later time; and the sales documents played no part in asset protection.
       The next day, on January 25, 2018, the district court granted Davies’ and MCHD’s
motions for summary judgment. The district court ruled that, under Greenfield, expert testimony
was required to overcome a motion for summary judgment on the issues of breach and proximate
cause in a legal malpractice case. The district court explained that Ciccarello’s expert needed to
testify that a non-negligent attorney would have been able to negotiate better deal terms that
would have resulted in a better outcome to overcome summary judgment on this issue. In light of
this ruling, the district court denied Ciccarello’s motion to amend his complaint to add punitive
damages as moot.
       Ciccarello moved for reconsideration of the court’s summary-judgment ruling pursuant to
Idaho Rule of Civil Procedure 11.2 and filed an additional declaration from his proposed expert
in support of that motion. The additional declaration specifically provided that Ciccarello’s
expert would testify that Ciccarello “would have received better deal terms but for [Davies’]
negligence.” The district court denied the motion, holding that expert testimony was a necessary
part of the prima facie case of legal malpractice and because Ciccarello did not provide sufficient
expert testimony at the time of the summary-judgment motion, summary judgment was properly
granted.
       Then on May 7, 2018, Ciccarello moved for relief from the order granting summary
judgment, pursuant to Idaho Rules of Civil Procedure 60(b)(1) and 60(b)(6), arguing mistake and
compelling circumstances justifying relief. The district court denied this motion, determining
that a final judgment had not yet been entered, and that, in any event, there was no “mistake” of
fact suitable for relief under Idaho Rule of Civil Procedure 60(b)(1), nor were there unique and
compelling circumstances suitable for relief under Idaho Rule of Civil Procedure 60(b)(6). The
district court also ruled that the later declarations of Ciccarello’s expert were untimely for
consideration at summary judgment. In accord with its prior decisions, the district court entered a
final judgment dismissing all of Ciccarello’s claims with prejudice on August 31, 2018.
Ciccarello timely appealed.




                                                5
                                   II.    ISSUES ON APPEAL
      A. Whether the District Court erred in granting Respondent’s Motion for Summary
         Judgment by ruling that a plaintiff in an attorney malpractice case is required to file an
         expert affidavit to overcome a motion for summary judgment.
      B. Whether the District Court erred in denying Ciccarello’s Motion for Reconsideration.
      C. Whether the District Court erred in denying Ciccarello’s Rule 60(b) Motion.
                                III.     STANDARD OF REVIEW
         “In a legal malpractice appeal, the standard of review for this Court when reviewing a
district court’s grant of summary judgment is well-settled: this Court ‘uses the same standard
properly employed by the district court originally ruling on the motion.’” Lanham v. Fleenor,

, 358, 

 (2018) (quoting Jordan v. Beeks, 

,

 (2001)). “The court must grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” I.R.C.P. 56(a). “All disputed facts are to be construed liberally in favor of the
non-moving party, and all reasonable inferences that can be drawn from the record are to be
drawn in favor of the non-moving party.” English v. Taylor, 

, 

 (2016) (quoting Sprinkler Irrigation Co. v. John Deere Ins. Co., 

, 695–96,

, 671–72 (2004)). “In order to survive a motion for summary judgment, the non-
moving party must ‘make a showing sufficient to establish the existence of an element essential
to that party’s case on which that party will bear the burden of proof at trial.’” Jones v. Starnes,

, 259–60, 

, 1011–12, (2011) (quoting Badell v. Beeks, 

, 

 (1988)).
         This Court reviews a trial court’s decision to grant or deny a motion for reconsideration
using the same standard of review as the lower court in ruling on the motion. Fragnella v.
Petrovich, 

, 

 (2012). In other words:
                 If the decision was within the trial court’s discretion, we apply an
                 abuse of discretion standard. On the other hand, when reviewing
                 the grant or denial of a motion for reconsideration following the
                 grant of summary judgment, this Court must determine whether the
                 evidence presented a genuine issue of material fact to defeat
                 summary judgment.

                                                 6
       This Court reviews a denial of a motion to grant relief under I.R.C.P. 60(b) for an abuse
of discretion. Meyers v. Hansen, 

, 

 (2009).
               When this Court reviews an alleged abuse of discretion by a trial
               court the sequence of inquiry requires consideration of four
               essentials. Whether the trial court: (1) correctly perceived the issue
               as one of discretion; (2) acted within the outer boundaries of its
               discretion; (3) acted consistently with the legal standards
               applicable to the specific choices available to it; and (4) reached its
               decision by the exercise of reason.
Lunneborg v. My Fun Life, 

, 863, 

 (2018) (emphasis in original).
                                       IV.     ANALYSIS
   A. The district court properly granted Respondents’ motions for summary judgment.
       The district court granted summary judgment in favor of Davies and MCHD because
Ciccarello failed to oppose their motions for summary judgment by providing an expert affidavit
in support of his legal malpractice claim. The district court granted the motions after determining
that the elements of breach and proximate cause had been challenged by Davies’ and MCHD’s
motions for summary judgment, and that these elements “are ones on which expert testimony
must be provided,” because they were not within the ordinary knowledge and experience of
laymen. It was on these elements that the district court found a “gap” in the proposed testimony
of Ciccarello’s expert. Specifically, the district court ruled that it lacked an expert affidavit
explaining what contract terms would have been available to Ciccarello if his attorney had not
been negligent, and how a non-negligent attorney would have secured a better outcome.
       On appeal, Ciccarello argues that genuine issues of material fact should have precluded
summary judgment. Specifically, Ciccarello asserts that there is an issue of material fact
regarding whether Davies breached his duty to Ciccarello when he drafted the ICA and F.E.M.
sale documents to be terminable and to allow for the cessation of payments to Ciccarello.
Ciccarello further argues that because the movants—Davies and MCHD—failed to establish the
absence of a question of material fact in their motion, the burden did not shift to him to
overcome the motion for summary judgment. Lastly, Ciccarello argues that these issues of
material fact are many and obvious, so expert testimony on the issues of duty and breach was not
required to survive summary judgment. In response, Davies and MCHD argue that expert
testimony on the issues of the applicable standard of care, breach, and damages is a required part



                                                 7
of a prima facie case for legal malpractice under Greenfield v. Smith, 

, 

 (2017).
        In Idaho, the elements of a legal malpractice claim are:
                 (1) the existence of an attorney-client relationship that gives rise to
                     a duty of care on the part of the attorney to the client;
                 (2) an act or omission by the attorney in breach of the duty of care;
                 (3) the breach of the duty was a proximate cause of damage to the
                     client; and
                 (4) the fact and extent of damages alleged.
Lanham v. Fleenor, 

, 359, 

 (2018) (footnotes omitted). Like in
many other torts, the burden of proving each element by a preponderance of the evidence is on
the plaintiff. 

        To resist a motion for summary judgment in a legal malpractice case, the plaintiff is
ordinarily required to provide an expert affidavit explaining how the attorney’s conduct fell
below the standard of care and how the conduct was the proximate cause of the plaintiff’s
damages. Greenfield v. Smith, 

, 

 (2017). For example, in
Greenfield, the plaintiff hired an attorney to represent her in a civil action against her neighbors.

, 

. Following a breakdown in the attorney-client relationship, which
led to the attorney filing a motion to withdraw, Greenfield represented herself at trial and lost. 

at 248–49, 395 P.3d at 1281–82. Greenfield then filed a lawsuit against her former attorney,
alleging legal malpractice. 

, 

.
        In the legal malpractice action, the defendant-attorney filed a motion for summary
judgment, arguing Greenfield had failed to provide any expert witness testimony to show that the
attorney’s conduct “fell below the standard of care for an attorney or that his performance was
the proximate cause of any damages.” 

 at 251–52, 395 P.3d at 1284–85. “The district court
granted [the] motion, finding that [Greenfield] needed to resist the motion for summary judgment
with expert affidavits.” 

, 

. Affirming the district court’s decision, we
explained that “[w]hen a defendant-attorney files a motion for summary judgment, the plaintiff
ordinarily has an obligation to provide expert affidavits that explain how the lawyer’s conduct
fell below the standard of care and how the conduct proximately caused damages.” 

 We
reasoned that members of the jury “usually do not have the knowledge or experience necessary
to determine the standard of care that applies to an attorney or how the attorney’s performance of

                                                   8
that duty may or may not harm a client.” 

 But we recognized one exception for when the
attorney’s alleged malpractice “is so obvious that it is within the ordinary knowledge and
experience of laymen, such as when an attorney allows a statute of limitations to run.” 

       In Greenfield, the plaintiff did not provide expert testimony to resist the defendant-
attorney’s summary judgment motion. 

 Instead, she filed her own affidavit listing the ways she
believed her former attorney had committed malpractice. 

 For example, she alleged that the
attorney failed to file a motion to compel discovery, failed to finish a deposition, missed a
deadline for disclosing an expert witness, failed to file for summary judgment on the neighbors’
counterclaims, submitted a draft protection order to the court later than she wanted, failed to
complete all discovery under the pre-trial compliance order, failed to adequately prepare for
hearings, and failed to pursue motions she requested. 

 We determined that none of these
alleged deficiencies were as simple or obvious as allowing a statute of limitations to run. 

Accordingly, we found that the exception did not apply, and affirmed the district court’s decision
because plaintiff’s failure to provide an expert affidavit was fatal to her malpractice action. 

 at
252–53, 395 P.3d at 1285–86.
       Here, Ciccarello did not meet the requirements from Greenfield in his legal malpractice
action. As we stated in Greenfield, when challenged on summary judgment, the plaintiff “has an
obligation to provide expert affidavits that explain how the lawyer’s conduct fell below the
standard of care and how the conduct proximately caused damages.” 

, 

(emphasis added). Davies’ and MCHD’s motions for summary judgment challenged the
sufficiency of evidence as to whether Davies breached the duty he owed to Ciccarello as a result
of their attorney-client relationship. These motions triggered Ciccarello’s obligation to provide
expert affidavits that explain exactly how Davies’ conduct fell below the standard of care and
how the conduct caused damage. The only document Ciccarello filed concerning his expert
witness prior to the summary judgment hearing was an expert witness disclosure. The disclosure
identified the expert and his qualifications, listed the documents he viewed to form his opinions,
and gave a summary of his proposed opinions. However, it was not an affidavit or declaration.
Therefore, Ciccarello’s expert witness disclosure was not the sworn testimony required by
Greenfield.
       Having found that Ciccarello failed to resist Davies’ and MCHD’s motions for summary
judgment with an expert affidavit, we look now to whether Davies’ alleged malpractice was “so

                                                 9
obvious” as to be “within the ordinary knowledge and experience of a laymen.” Ciccarello’s
allegations against Davies are complex. He alleges that a non-negligent attorney would have
drafted the ICA differently, and structured the sale in a way that simultaneously protected
F.E.M.’s assets from forfeiture and guaranteed that he would receive the $2 million purchase
price. Davies structured the sale in a way that required the formation of an additional business
and two holding companies, as well as the drafting of a sales agreement and an independent
contractor agreement, all allegedly supplemented by an additional oral agreement. An attorney’s
structuring of this type of complex sale is precisely the type of conduct where expert witness
testimony would enable the jury to evaluate Ciccarello’s claim. Whether the nuanced choices
made by an attorney in structuring such a sale fell below the applicable standard of care is far
less obvious to a layperson than the black and white allegation that an attorney allowed a statute
of limitations to run.
        Therefore, Ciccarello failed to provide evidence sufficient to overcome Davies’ and
MCHD’s motions for summary judgment because he did not provide an expert affidavit to resist
the summary judgment motion and his allegations against Davies are not the type that would be
within the ordinary knowledge and experience of a layperson.
        Ciccarello also argues that the movants—Davies and MCHD—did not meet their burden
of establishing the absence of a genuine issue of material fact, so the burden did not shift to him
to refute their allegations. This position relies on burden shifting as explained in Kiebert v. Goss,

, 

 (2007). There, we explained that “the burden of proving
the absence of material facts is upon the moving party[,]” but “[o]nce the moving party
establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving
party to show that a genuine issue of material fact does exist.” 

 (citations omitted). However,
Ciccarello’s argument overlooks the well-established requirement that to overcome a motion for
summary judgment, a non-moving party has to make a “showing sufficient to establish the
existence of an element essential to its case when it bears the burden of proof.” Samuel v.
Hepworth, Nungester & Lezamiz, Inc., 

, 

 (2000). Ciccarello,
as the plaintiff, bears the burden of proving the elements of a prima facie case of legal
malpractice. Defendants need only to challenge the legal sufficiency of a plaintiff’s legal
malpractice case to trigger the Greenfield requirement that the plaintiff present expert evidence
on the challenged elements. That is what was done here. Davies’ and MCHD’s motions for

                                                 10
summary judgment alleged that Ciccarello provided insufficient evidence to establish a prima
facie case of legal malpractice. To overcome summary judgment, under Greenfield, Ciccarello
needed to present an expert affidavit indicating precisely how Davies’ representation fell below
the standard of care, and how such breach was the proximate cause of his damages. Ciccarello
failed to provide such expert affidavits. Therefore, the district court did not err in granting
Davies’ and MCHD’s motions for summary judgment.
   B. The district court did not err in denying Ciccarello’s motion for reconsideration.
       Next, Ciccarello argues that his expert’s declarations, one filed just prior to the issuance
of the court’s summary-judgment ruling and the other filed concurrently with his motion for
reconsideration, address the “gap” in evidence identified by the district court and should have
been considered by the district court on reconsideration. Had it considered them, Ciccarello
argues the district court should have granted the motion for reconsideration.
       We review a district court’s decision on whether to accept an untimely filed affidavit in
connection with summary judgment for an abuse of discretion. Cumis Ins. Society, Inc. v.
Massey, 

, 

 (2014) (citing Sun Valley Potatoes, Inc. v.
Rosholt, Robertson & Tucker, 

, 

 (1999)). The district court
stated the following in ruling on the motion to reconsider: “Summary judgment is a time for the
final disposition of claims. It is the crucible of claims, to determine if trial is necessary. Upon the
evidence submitted on or by December 18, 2017 [the hearing date], over 20 months since the
complaint was filed, trial was not necessary.” The district court then expanded on its decision
when addressing Ciccarello’s Rule 60(b) motion:
               Defendants noticed their Second Motion for Summary Judgment
               for hearing on December 18, 2017. Pursuant to Rule 56(b)(2),
               Plaintiff’s opposition brief and opposing documents had to be
               served at least 14 days prior to the hearing: December 4, 2017. The
               [second Ciccarello expert declaration] was filed instead on January
               24, 2018, 51 days later. The [third Ciccarello expert declaration]
               was filed five days after that. Therefore, both were untimely for
               consideration under Rule 56.
                        ...
                       [T]his Court has discretion whether or not to accept the
               untimely [second and third expert declarations]. A rule to the
               contrary, requiring a court to accept facts not filed before summary
               judgment is heard but more than 50 days late, cuts against the
               nature of the proceeding, to determine whether the matter should
               proceed to trial. . . A rule to the contrary . . . also risks

                                                  11
               incentivizing gaming of summary judgment proceedings by the
               parties, encouraging them to try to file “just enough” disclosure to
               beat summary judgment with the knowledge that, if the offered
               evidence were not enough, they could simply supplement the facts.
       As indicated by the district court, because the declarations provided by Ciccarello’s
experts were untimely for consideration at summary judgment per Idaho Rule Civil Procedure
56(b)(2), it was not required to consider them in ruling on the motion for reconsideration. While
this Court has explained that when considering a motion for reconsideration “the trial court
should take into account any new facts presented by the moving party that bear on the
correctness of the order,” Int’l Real Estate Solutions, Inc., v. Arave, 

, 

 (2014), this rule was not designed to allow parties to bypass timing rules or fail to
conduct due diligence prior to a court’s ruling. Rather, “[t]he purpose of a motion for
reconsideration is to reexamine the correctness of an order.” 

       We cannot say that the district court abused its discretion in declining to consider
Ciccarello’s untimely expert declarations. The district court specifically stated that it had
discretion regarding whether to consider the untimely expert declarations. It further explained
that Ciccarello’s opposition brief and supporting documents, which would include the affidavits
required under Greenfield, were supposed to be filed at least 14 days before the hearing.
Expressing concerns over the length of time it took Ciccarello to file the declarations (“more
than 50 days late”), and reasoning that Ciccarello could have filed a motion for an extension of
time under Idaho Rule of Civil Procedure 56(d), but chose not to, the district court declined to
consider the untimely expert declarations. The district court’s choice was not an abuse of
discretion. Accordingly, we determine that the district court did not err in denying Ciccarello’s
motion for reconsideration.
   C. The district court did not err in denying Ciccarello’s Rule 60(b) Motion.
       In denying Ciccarello’s Rule 60(b) motion, the district court concluded that Ciccarello
could not be granted relief because a final judgment had not yet been issued in the case. The
district court also held that Ciccarello did not show mistakes suitable for relief under Rule
60(b)(1), nor did he show unique and compelling circumstances suitable for relief under Rule
60(b)(6).
       This Court reviews a trial court’s grant or denial of a Rule 60(b) motion for an abuse of
discretion. Berg v. Kendall, 

, 

 (2009). As explained


                                                12
above, we apply the factors from Lunneborg when reviewing whether the district court abused its
discretion. 

, 863, 

 (2018).
       Idaho Rule of Civil Procedure 60(b) provides in pertinent part:
               On motion and just terms, the court may relieve a party or its legal
               representative from a final judgment, order, or proceeding for the
               following reasons:
                       (1) mistake, inadvertence, surprise, or excusable neglect;
                       ...
                       (6) any other reason that justifies relief.
I.R.C.P. 60(b) (emphasis added). “Any claim of mistake [under Rule 60(b)(1)] must be a mistake
of fact and not a mistake of law.” PHH Mortg. v. Nickerson, 

, 

 (2016) (quoting Berg v. Kendall, 

, 576–77, 

, 1006–07 (2009)).
Under Rule 60(b)(6), a court may grant relief only “upon a showing of unique and compelling
circumstances justifying relief.” In Re SRBA Case No. 39576 Subase No. 37-00864, 

, 252, 

 (2018) (quoting Miller v. Haller, 

, 

 (1996)). Accordingly, relief under Rule 60(b)(6) is infrequently granted. 

 (citing Berg,

, 

).
       Here, the district court did not abuse its discretion in denying Ciccarello’s Rule 60(b)
motion. The “mistakes” Ciccarello alleges in support of his motion for relief were that he should
have asked for an extension of time to file an expert affidavit and that he “was mistaken in
proceeding with his Motion for Reconsideration.” Ciccarello also alleged that the district court
made mistakes by not taking his additional expert declarations into consideration when ruling on
his motion for reconsideration and by not “substantively consider[ing] or rul[ing] on” his motion
to reconsider. As the district court pointed out, the “mistakes” alleged by Ciccarello were not
factual in nature. All four were legal mistakes, two allegedly made by Ciccarello, and two
allegedly made by the district court. Therefore, Ciccarello alleged no mistake of fact upon which
the district court could have granted relief under Rule 60(b)(1). Furthermore, failure to provide
sufficient evidence establishing a prima facie case for legal malpractice is not the type of “unique
and compelling circumstances” that justify relief under Rule 60(b)(6). As such, the district court
did not abuse its discretion by denying Ciccarello’s motion for relief under Rule 60(b).




                                                  13
   D. Attorney fees.
       Each party requests attorney fees on appeal pursuant to Idaho Code section 12-120(3),
which permits an award of attorney fees to the prevailing party in a civil action regarding “any
commercial transaction.” A “commercial transaction” means “all transactions except transactions
for personal or household purposes.” I.C. § 12-120(3). “Under this statute, when a commercial
transaction comprises the gravamen of a lawsuit, the prevailing party shall be awarded attorney
fees.” Kugler v. Nelson, 

, 

 (2016) (citing Idaho Transp.
Dep’t v. Ascorp, Inc., 

, 

 (2015)). Whether a commercial
transaction comprises the gravamen of a lawsuit is an inquiry made on a claim-by-claim basis.
Sims v. Jacobson, 

, 984–85, 

, 912–13 (2015) (citing Willie v. Bd. of
Trs., 

, 

 (2002)).
       “Legal malpractice actions are an amalgam of tort and contract theories.” Bishop v.
Owens, 

, 

 (2012) (citation and quotation marks omitted).
Idaho Code section 12-120(3) “does not require that there be a contract between the parties
before the statute is applied; the statute    only    requires   that   there   be   a   commercial
transaction.” Soignier v. Fletcher, 

, 

 (2011) (citing City of
McCall v. Buxton, 

, 

 (2009)). Therefore, a party to a legal
malpractice action may be awarded attorney fees under Idaho Code section 12-120(3) “where the
claim ‘would not have arisen absent the claimed commercial transaction.’” Simono v. House, 

, 

 (2016) (quoting H–D Transport v. Pogue, 

, 

 (2016)).
       The facts underlying this case involve the sale of a company, the formation of two other
companies, and the transfer of shares between owners and operators of a company. Ciccarello
specifically alleges that Davies drafted the documents used to complete the sale of F.E.M.,
including the ICA, the main point of contention between the parties. These facts constitute
several commercial transactions. Ciccarello’s malpractice claim against Davies and MCHD
arises solely out of those transactions. If they were absent, his claim would not exist. Because we
affirm the district court’s order granting summary judgment in favor of Respondents Davies and
MCHD, they are the prevailing parties in this appeal. Therefore, we award attorney fees on
appeal to Respondents Davies and MCHD.



                                                14
                               V.    CONCLUSION
       The district court did not err in granting summary judgment in favor of Davies and
MCHD, denying Ciccarello’s motion for reconsideration, or denying Ciccarello’s motion for
relief under Idaho Rule of Civil Procedure 60(b). Accordingly, the district court’s final judgment
dismissing Ciccarello’s claims with prejudice is affirmed. Attorney fees and costs on appeal are
awarded to Respondents.
       Justices BRODY, BEVAN, STEGNER, and MOELLER CONCUR.




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