Black v. Shultz

• Decision Date: 24 June 2008
• Docket Number: No. 07-3108.,07-3108.
• Citation: 530 F.3d 702
• Parties: Betty BLACK, Appellee, v. Ryan K. SHULTZ, Appellant, Benjamin P. King, Defendant, Reed, King and Shultz Law Office, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

530 F.3d 702

Betty BLACK, Appellee, v. Ryan K. SHULTZ, Appellant, Benjamin P. King, Defendant, Reed, King and Shultz Law Office, Appellant.

No. 07-3108.

United States Court of Appeals, Eighth Circuit.

Submitted: March 26, 2008.

Filed: June 24, 2008.

Jerry W. Katskee, argued, Melvin R. Katskee, on the brief, Omaha, NE, for appellant.

Joy Schiffermiller, argued, Lincoln, NE, for appellee.

Before RILEY, JOHN R. GIBSON, and MELLOY, Circuit Judges.

RILEY, Circuit Judge.

Betty Black (Black) sued attorney Ryan K. Shultz (Shultz) and his law firm, Reed, King and Shultz Law Office, for legal malpractice and partnership liability. Black's claims arose from Shultz's failure to pursue a sexual harassment suit against Black's employer, U.S. Bank, and from numerous misrepresentations made by Shultz during his representation of Black. A jury found Black's sexual harassment claim against U.S. Bank failed. The jury did find Black reasonably relied on Shultz's misrepresentations, awarding Black $160,000 in damages.

Shultz and his law firm (Defendants) appeal, arguing the district court¹ erred by (1) refusing to declare a mistrial when Black testified, in violation of the district court's order granting Defendants' motion in limine, that Shultz told her he had obtained $100,000 in settlement from U.S. Bank, and (2) splitting Black's legal malpractice cause of action into two separate claims by instructing the jury to consider Shultz's negligent misrepresentations separately from the merits of Black's sexual harassment suit against U.S. Bank. We affirm.

I. BACKGROUND

Black initially hired Shultz to represent her at a hearing seeking a protection order against Black's former boss at U.S. Bank, Leland Judy (Judy). Shortly after the protection order was granted, Black hired Shultz to represent her in pursuing a sexual harassment claim against Judy and U.S. Bank.

In December 2004, Shultz wrote Black a letter discussing her demand against U.S. Bank. In the spring of 2005, Shultz told Black he had filed the proper paperwork to pursue her claim, and the proceedings were going in her favor. When Black asked for copies of documents, Shultz told her the documents were with the judge in North Platte, Nebraska.

Black told Shultz she wanted to relocate to Texas. One of Black's reasons for wanting to move was to get as far away from Judy as possible. Another reason was to obtain in-state tuition for her daughter at Texas A & M. Shultz advised Black not to relocate.

In May 2005, U.S. Bank closed the trust department where Black worked and offered Black a severance package. Shultz advised Black not to accept the severance package, telling her if she accepted the severance package, she would give up her right to pursue her sexual harassment suit against U.S. Bank. Acting on Shultz's advice, Black did not accept the severance package.

Black wanted to seek employment after her job at U.S. Bank ended because she was a single mother who needed to provide an income. Shultz directed Black not to look for work, telling her "[i]t would look better for the court proceedings" if her income was as low as possible. Black followed Shultz's advice.

Shultz discussed U.S. Bank's initial settlement offers with Black. Black informed Shultz U.S. Bank's initial offers were unacceptable to her. Shultz told Black her case was set for trial in June 2005. The day her case was supposedly set for trial, Shultz told Black the trial had been rescheduled for the end of June because of the judge's schedule. Throughout the summer, Shultz continued to tell Black trial dates were coming up, usually the first and last weeks of every month.

On July 22, 2005, Shultz relayed a settlement offer that Black accepted $200,000. Shultz told Black they would receive the money in ten days. After ten days went by, Shultz told Black he had not received the money yet. Approximately a week later, when Black had still not received the money, Shultz told Black the judge was angry with U.S. Bank because the bank had not paid the settlement, and the judge would assess a 5% penalty every ten days. At one point, Shultz told Black the court had finally received $100,000 toward the settlement.

Black asked for a copy of the settlement agreement, and Shultz brought the supposed agreement to Black's home. Black told Shultz the document was unacceptable because it was not signed and notarized. Shultz then went to his car and produced another copy of the settlement that was signed by Shultz and supposedly signed by someone from U.S. Bank.

Black began to suspect something was wrong. She investigated whether her case had ever been scheduled for trial. Black found her case had not been scheduled for trial on the various dates Shultz told her. Indeed, Shultz never filed Black's lawsuit against U.S. Bank, and Shultz never had any negotiations with U.S. Bank about settling Black's case.

Black filed suit against Shultz for legal malpractice, and against Shultz's law firm for partnership liability. Before trial, Defendants filed a motion in limine, seeking to exclude any references to Shultz's evaluation of the value or worth of Black's claim against U.S. Bank. The district court granted Defendants' motion. Shortly after the trial began, Black's attorney mentioned a specific dollar figure in her opening statement. The district court granted Defendants' motion for a mistrial. A new jury was empaneled and a second trial began the following day. When the second trial was well underway, Black spontaneously testified on direct examination Shultz told her U.S. Bank had paid $100,000 to the court. Defendants again objected and moved for a mistrial. This time the district court denied the motion, instead giving a curative instruction.

At trial, Defendants admitted Shultz committed legal malpractice, which also was attributable to Reed, King & Shultz, and, as a direct result of Shultz's malpractice Black lost the right to pursue her lawsuit against U.S. Bank. Defendants then argued they were not liable to Black because she did not establish by a preponderance of the evidence she had a viable claim for sexual harassment against U.S. Bank. The district court instructed the jury to address two separate claims: (1) whether Black established by a preponderance of the evidence she had a viable claim for sexual harassment against U.S. Bank, and (2) whether Black sustained damages as a result of Shultz's misrepresentations.

The jury found Black established a viable sexual harassment claim against U.S. Bank and/or Judy, but Black's sexual harassment claim ultimately failed because U.S. Bank exercised reasonable care to prevent any sexually harassing behavior in the workplace and Black unreasonably failed to take advantage of the opportunities U.S. Bank provided to avoid or correct the sexually harassing behavior. The jury also found Shultz made negligent misrepresentations to Black, Black reasonably relied on Shultz's misrepresentations, and Black sustained $160,000 in damages as a result of her reasonable reliance on Shultz's misrepresentations. The district court denied Defendants' motion for judgment notwithstanding the verdict (JNOV) or for new trial and their subsequent motion to alter or amend the judgment.

II. DISCUSSION

A. Motion for Mistrial

Defendants argue the district court erred by refusing to declare a mistrial when Black testified in violation of the district court's order, saying Shultz told her U.S. Bank had paid $100,000 in settlement to the court. "The decision to grant a new trial is left to the sound discretion of the trial court and this court will not disturb the trial court's decision absent a clear showing of abuse of discretion." Pullman v. Land O'Lakes, Inc., 262 F.3d 759, 762 (8th Cir.2001) (citations omitted). A violation of an order granting a motion in limine may only serve as a basis for a new trial when the order is specific in its prohibition and the violation is clear. Id. (citation omitted). Further, a party is entitled to a new trial only where the violation constitutes prejudicial error or results in the denial of a fair trial. Id. (citation omitted). "Prejudicial error is error which in all probability produced some effect on the jury's verdict and is harmful to the substantial rights of the party assigning it." Id. (citations omitted).

The parties agree the order granting Defendants' motion in limine was specific in its prohibition—the district court prohibited any reference to Shultz's evaluation of the value or worth of Black's sexual harassment claim against U.S. Bank. The parties also agree Black clearly violated the motion in limine order when the following exchange took place during her direct examination:

Q. Well, did [Shultz] talk about [U.S. Bank] having to pay any money in to court or anything?

A. Oh, yes.

Q. When did he make those comments?

A. He said that at one time that they finally received $100,000—oh, they received money for the—the settlement within the court and that that would be sent to me later.

The parties dispute whether the violation constituted prejudicial error or resulted in Defendants being denied a fair trial. Defendants generally assert Black's testimony as to specific dollar amounts "tends to suggest decision on an improper basis." Apart from that conclusory statement, Defendants set forth no basis for concluding Black's violation of the motion in limine order was harmful to their substantial rights or denied them a fair trial. Instead, Defendants seem to argue, because the district court granted a mistrial the first time its order was violated, the district court should have granted another mistrial the second time its order was violated. Because we do not know the exact nature or context of the first violation,² it is impossible to compare the two violations or to determine whether it was necessary or merely a cautionary measure for the district court to declare a mistrial for the first violation.

Defendants were not...