875 F.3d 1307 (10th Cir. 2017), 15-3284, Sylvia v. Wisler

Docket Nº:15-3284
Citation:875 F.3d 1307
Opinion Judge:HOLMES, Circuit Judge.
Party Name:CORY SYLVIA, Plaintiff - Appellant, v. JAMES L. WISLER; DAVID TREVINO; XPRESSIONS, L.C., Defendants - Appellees
Attorney:Alan V. Johnson of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, Kansas, for Plaintiff-Appellant. Steven R. Smith, Gates Shields Ferguson Hammond, P.A., Overland Park, Kansas, for Defendants-Appellees James L. Wisler and Xpressions, L.C. Daniel F. Church of Morrow Willnauer Klos...
Judge Panel:Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
Case Date:November 22, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

Page 1307

875 F.3d 1307 (10th Cir. 2017)

CORY SYLVIA, Plaintiff - Appellant,

v.

JAMES L. WISLER; DAVID TREVINO; XPRESSIONS, L.C., Defendants - Appellees

No. 15-3284

United States Court of Appeals, Tenth Circuit

November 22, 2017

Appeal from the United States District Court, for the District of Kansas. (D.C. No. 2:13-cv-02534-EFM-TJJ).

Sylvia v. Wisler, (D. Kan., Oct. 26, 2015, June 19, 2014)

Submitted on the briefs:[*]

Alan V. Johnson of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, Kansas, for Plaintiff-Appellant.

Steven R. Smith, Gates Shields Ferguson Hammond, P.A., Overland Park, Kansas, for Defendants-Appellees James L. Wisler and Xpressions, L.C.

Daniel F. Church of Morrow Willnauer Klosterman Church, Kansas City, Missouri, for Defendant-Appellee David Trevino.

Before HARTZ, HOLMES, and MATHESON, Circuit Judges.

OPINION

HOLMES, Circuit Judge.

This case presents a difficult question of Kansas law: when do legal malpractice claims involving a failure to act sound in tort rather than contract? Kansas, like other states, distinguishes between legal malpractice claims. Some sound in contract. Others sound in tort. Generally, breach of a specific contractual provision or agreement to do a certain action sounds in contract, while breach of a duty imposed by law on attorneys by virtue of the attorney-client relationship sounds in tort. But the line separating failure to perform an agreed-upon action from breach of a duty imposed by law is not always bright.

Here, the plaintiff, Cory Sylvia, sued his former attorneys, James L. Wisler and David Trevino, for legal malpractice allegedly sounding in tort and breach of contract arising from their representation of Mr. Sylvia in a suit for wrongful termination against Goodyear Tire & Rubber Co. (" Goodyear" ), his former employer. Later, Mr. Sylvia amended his complaint to add as a defendant Xpressions, L.C. (" Xpressions" ), a limited liability company formerly known as the Wisler Law Office, L.C.

Mr. Sylvia's initial complaint characterized his claims as sounding both in tort and in contract. Specifically, he faulted (1) both individual defendants for failing to include in, or to later amend, his complaint to aver a workers' compensation retaliation claim; and (2) solely Mr. Wisler for voluntarily dismissing Mr. Sylvia's case on the erroneous belief that all claims could be refiled, causing one of his claims to become barred by the statute of limitations. For each of these claims, Mr. Sylvia advanced both tort and contract theories of liability.

Messrs. Wisler and Trevino each filed Federal Rule of Civil Procedure 12(b)(6) motions to dismiss, which were granted in part and denied in part. The court granted dismissal of the legal malpractice claims--allegedly sounding in tort--holding that the claims were not properly characterized as torts and merely duplicated the breach of contract claims. The court allowed the breach of contract claims to go forward. On motions for summary judgment by Mr. Trevino and by Mr. Wisler and Xpressions, filing jointly, the court granted both motions, disposing of the remaining contract claims and the case.

Mr. Sylvia appeals from both the district court's dismissal of his alleged tort claims and its grant of summary judgment for the defendants on the breach of contract claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,1 we hold that, under Kansas law, Mr. Sylvia has alleged that defendants breached a duty imposed by law in the context of their attorney-client relationship; such claims sound in tort. Accordingly, for reasons further detailed infra, we reverse in part and vacate in part the district court's judgment dismissing Mr. Sylvia's legal malpractice claims. However, regarding the district court's grant of summary judgment for the defendants on the breach of contract claims, we affirm. We remand the case for further proceedings not inconsistent with this opinion.

I. BACKGROUND

Mr. Sylvia's claims against Messrs. Wisler and Trevino arose from a lawsuit against Goodyear for wrongful termination in which the defendants represented Mr. Sylvia. Mr. Sylvia had sustained repeated injuries working for Goodyear. He filed multiple workers' compensation claims for those injuries but was fired when he allegedly failed to report a medically necessary absence in violation of a " Last Chance Agreement" Mr. Sylvia had entered into with Goodyear. Aplt.'s App. at 11-13 (Compl., dated Oct. 16, 2013). After his firing, Mr. Sylvia filed a charge with the Equal Employment Opportunity Commission alleging that his termination violated the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12101-213, and later received a notice of right to sue. Between filing the charge and receiving the notice of right to sue, Mr. Sylvia received an award from the Kansas Division of Workers' Compensation for his claims against Goodyear.

Shortly after receiving the notice of right to sue, Mr. Sylvia retained Wisler & Trevino, L.C., the defendants' former law firm, to represent him in a wrongful termination suit against Goodyear. Mr. Sylvia signed a written contract with Wisler & Trevino, L.C., that stated in part: Cory Sylvia has been wrongfully discharged due to disability discrimination and FMLA [i.e., Family and Medical Leave Act, 29 U.S.C. § § 2601-54] violation/retaliation and Workers Compensation retaliation from GoodYear Tire and Rubber Company on or about May 9, 2009. The firm will file suit in federal court in Kansas on one or more of these claims.

Aplt.'s App. at 132 (Wisler & Xpressions' Mem. Supp. Mot. Summ. J., dated Mar. 5, 2015) (emphasis added). Mr. Sylvia alleges that before or at the time the contract was executed, he was assured by Messrs. Wisler and Trevino that all five claims discussed by the parties would be brought against Goodyear.2 The complaint filed by Mr. Trevino, however, omitted both retaliation claims (i.e., FMLA retaliation and workers' compensation retaliation).

Further, Mr. Sylvia avers that after the lawsuit was filed he received a copy of the complaint and--alerted to the fact that his attorney had included only three of the claims--raised the issue of the missing retaliation claims with Mr. Wisler, who allegedly responded: " [W]e had to file these three claims first, but we will file the other two claims later." Id. at 191 (Pl.'s Mem. Opp'n Mot. Summ. J., dated Apr. 7, 2015). Mr. Sylvia asserts that, in relying on Mr. Wisler's statement, he did not insist that the written contract be modified to require the filing of all five claims.

During the course of the underlying litigation, Messrs. Wisler and Trevino dissolved their partnership, and Mr. Sylvia chose Mr. Wisler to continue the representation; Mr. Trevino withdrew. About the same time, the Social Security Administration determined that Mr. Sylvia was disabled and so eligible for disability benefits beginning April 1, 2009--over a month before he was discharged by Goodyear on May 8, 2009. As a result, Mr. Wisler believed that he could not argue in good faith that Mr. Sylvia had a good claim or had suffered substantial damages.

According to Mr. Sylvia, around this time he and Mr. Wisler had multiple conversations regarding the possibility of voluntarily dismissing the case against Goodyear. Mr. Sylvia allegedly asked Mr. Wisler multiple times not to dismiss so that Mr. Sylvia could find other counsel to prosecute the case. But Mr. Sylvia says that Mr. Wisler repeatedly assured him that he would be able to refile all of the claims. Allegedly relying on those assurances, Mr. Sylvia consented to the voluntary dismissal of his case.

Mr. Sylvia retained new counsel who filed suit in the District of Kansas against Goodyear for (1) interference in violation of the FMLA, (2) FMLA retaliation, (3) wrongful discharge in violation of the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § § 1001-461, and (4) disability discrimination in violation of the ADA. However, on April 26, 2012, Mr. Sylvia's claim for disability discrimination under the ADA was dismissed as time-barred because state tolling and savings statutes do not apply to ADA claims, which must be filed within 90 days of receiving a notice of right to sue. Mr. Sylvia settled his remaining claims against Goodyear for $12,000.

On October 16, 2013, Mr. Sylvia brought suit against Messrs. Wisler and Trevino in the District of Kansas for allegedly tortious conduct and breach of contract. Before answering the complaint, Messrs. Wisler and Trevino moved to dismiss the claims against them for failure to state a claim. The district court granted in part the motions to dismiss, dismissing the legal malpractice claims that Mr. Sylvia asserted sounded in tort, while permitting the contract claims to proceed.

In doing so, the district court held that Mr. Sylvia had failed to state a facially plausible claim that the defendants violated a duty imposed by law and thus committed a tort. Mr. Sylvia then moved to amend his complaint to add Xpressions, formerly Wisler Law Office, L.C., as a defendant. He conformed his amended complaint to the district court's dismissal order by omitting the alleged tort claims.

After limited discovery, the defendants moved for summary judgment on the remaining contract claims. The district court granted the defendants' motions for summary judgment, dismissing the remaining contract claims. The court rejected Mr. Sylvia's arguments, and held, inter alia, (1) that the parol evidence rule barred evidence of oral statements before or contemporaneous with the execution of the written contract; (2) that Mr. Sylvia had failed to show a subsequent oral agreement supported by consideration; and (3) that the voluntary dismissal of the...

To continue reading

FREE SIGN UP