608 F.2d 1143 (8th Cir. 1979), 78-1475, Kuehn v. Garcia

Docket Nº:78-1475.
Citation:608 F.2d 1143
Party Name:Julianne KUEHN, f/k/a Julianne Irene Keller, Appellee, v. David GARCIA, Appellant.
Case Date:November 08, 1979
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1143

608 F.2d 1143 (8th Cir. 1979)

Julianne KUEHN, f/k/a Julianne Irene Keller, Appellee,


David GARCIA, Appellant.

No. 78-1475.

United States Court of Appeals, Eighth Circuit

November 8, 1979

Submitted Feb. 13, 1979.

Rehearing Denied Dec. 18, 1979.

Page 1144

David Garcia, Devils Lake, N. D., for appellant.

Gary R. Thune, Shaft, McConn, Fisher & Thune, Grand Forks, N. D., for appellee.

Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and HANSON, Senior District Judge. [*]

GIBSON, Chief Judge.

David Garcia appeals from an order of the District Court 1 granting Julianne Kuehn's motion for summary judgment on the issue of liability in a legal malpractice action brought by Kuehn against Garcia. The District Court held that the judgment of the North Dakota Supreme Court in a prior disciplinary proceeding against Garcia rendered the issue of Garcia's tort liability to Kuehn res judicata, and that Garcia was therefore collaterally estopped from relitigating the issue in the subsequent malpractice action. While we do not agree with the District Court's analysis of this issue, we nevertheless affirm on the grounds that the stipulated and uncontroverted facts demonstrate that Garcia's actions

Page 1145

constituted negligence as a matter of law.


The charge of legal malpractice arose out of an employment arrangement entered into in 1974. The facts, as recited by the North Dakota Supreme Court, were as follows:

Mr. Garcia was retained by Julianne Keller (now Kuehn) to represent her in a divorce case. He commenced the action and a counterclaim was interposed. His client moved to Wisconsin. The trial was set for December 30, 1974, and Mr. Garcia was so advised in early December, at the latest. He wrote a letter to his client dated December 24, 1974, advising her of the date of the hearing. She denies having received the letter and did not appear at the hearing, and neither did her attorney. Apparently the letter was lost in the Christmas mail rush. Judgment was entered against Mrs. Keller by default. Mr. Garcia had accepted attorney fees in the amount of $450 to represent her. She never was advised by telephone of the date of the hearing, nor was she advised by mail or telephone of the entry of the judgment against her. Mr. Garcia said he assumed she decided not to proceed with the litigation and therefore did not appear for the hearing.

Matter of Garcia, 243 N.W.2d 383, 385 (N.D.1976).

Garcia was disciplined by the North Dakota Supreme Court in a proceeding brought by the Grievance Committee of that court. Matter of Garcia, supra. In its opinion, the state supreme court reviewed allegations regarding Garcia's handling of four separate cases, one of which was Kuehn's divorce action. The court held that, in all of the cases reviewed, the facts warranted the conclusion that Garcia had violated Canon 7 of the North Dakota Code of Professional Responsibility for lawyers, 2 which requires that a lawyer represent a client zealously within the bounds of the law. The court further held that, in all of the cases except Kuehn's, Garcia had also violated Canon 6 of the Code of Professional Responsibility, which requires that a lawyer represent a client competently. The court found that:

It is obvious that Mr. Garcia has failed to keep his clients informed as to the progress of the matters entrusted to him, and has failed to represent them adequately in some cases, although he has the ability to do so.

243 N.W.2d at 385. The court ordered Garcia to repay the affected clients certain sums "lost to (them) because of his neglect." 3 In Kuehn's case, he was ordered to repay the $450 fee she had paid to him to represent her. In addition, the court concluded that Garcia's "violations of the Code of Professional Responsibility are so serious that censure alone would be an inadequate response" and suspended his license to practice law in North Dakota for thirty days. 243 N.W.2d at 385.

After Garcia's suspension, Kuehn brought this action for legal malpractice in the United States District Court for the District of North Dakota. Kuehn alleged that she had employed Garcia as an attorney to represent her, and that he

negligently permitted judgment to be entered against plaintiff by his failing to appear at trial or notifying plaintiff of trial...

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