Bergstrom v. Noah

• Decision Date: 05 March 1999
• Docket Number: No. 79,531,79,531
• Citation: 974 P.2d 531,266 Kan. 847
• Parties: Marvin BERGSTROM; Marilyn Bergstrom; Ben Dreesen; Karen Dreesen; and Farmers Livestock Commission Co., Inc., a Kansas Corporation, Plaintiffs, v. Don W. NOAH and Noah & Harrison, P.A., Defendants/Appellees, Lyle J. Koenig, Defendant, Roger McCartney, d/b/a Stockman's Livestock Exchange, Defendant/Appellant, and Charlene McCartney, Defendant.
• Court: Kansas Supreme Court

Page 531

974 P.2d 531

266 Kan. 847

Marvin BERGSTROM; Marilyn Bergstrom; Ben Dreesen; Karen Dreesen; and Farmers Livestock Commission Co Inc., a Kansas Corporation, Plaintiffs, v. Don W. NOAH and Noah & Harrison, P.A., Defendants/Appellees Lyle J. Koenig, Defendant Roger McCartney, d/b/a Stockman's Livestock Exchange Defendant/Appellant, and Charlene McCartney, Defendant.

No. 79,531.

Supreme Court of Kansas.

March 5, 1999.

Syllabus by the Court

1. Summary judgment is appropriate when the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.

2. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

3. An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. If disputed facts, however resolved, could not affect the judgment, they do not present a genuine issue of material fact.

4. Where an appellant fails to brief an issue, that issue is deemed waived or abandoned.

5. In order to prevail on a claim of legal malpractice, a plaintiff is required to show (1) the duty of the attorney to exercise ordinary skill and knowledge, (2) a breach of that duty, (3) a causal connection between the breach of duty and the resulting injury, and (4) actual loss or damage.

6. Claims of legal malpractice like other actions for professional negligence are normally to be determined by the trier of fact rather than by summary judgment. However, there is a recognized exception to this rule. When, under the totality of the circumstances as demonstrated by the uncontroverted facts, a conclusion may be reached as a matter of law that negligence has not been established, judgment may be entered as a matter of law.

7. A trial court's decision which reaches the right result will be upheld even though the trial court may have relied upon the wrong ground or assigned erroneous reasons for its decision.

8. A client represented by an attorney is entitled to the benefit of an informed judgment by that attorney. Where the issue is one that is settled and can be identified through ordinary research and investigation techniques, an attorney should not be able to avoid liability in a claim of professional negligence by claiming the error was one of judgment.

9. Where evidence establishes that an attorney acts in good faith and in an honest belief that his or her acts and advice are well founded and in the best interest of the client, that attorney is not liable for an informed judgment even if subsequently proved erroneous on points of new occurrences or doubtful construction, or for a mistaken opinion on a point of law that has not been settled by a court of last resort and on which reasonable doubt may well be entertained by informed lawyers.

Bert S. Braud, of The Popham Law Firm, P.C., of Kansas City, Missouri, argued the cause and was on the briefs for appellant.

Justice B. King, of Fisher, Patterson, Sayler, & Smith, L.L.P., of Topeka, argued the cause and was on the brief for appellees.

DAVIS, J.:

Roger McCartney, d/b/a Stockman's Livestock Exchange and Charlene McCartney, (the McCartneys) through their attorneys, Don W. Noah, and Noah and Harrison, P.A., (Noah), filed a Kansas antitrust action against Marvin and Marilyn Bergstrom, Ben and Karen Dreesen, and Farmers Livestock Commission Co., Inc., (the FLCC parties) in the District Court of Republic County, Kansas. This underlying antitrust action was resolved by summary judgment against the McCartneys. The FLCC parties then filed a malicious prosecution action against the McCartneys and Noah, which was resolved by summary judgment against the FLCC parties and affirmed by this court in Bergstrom v. Noah, 266 Kan. 829, 974 P.2d 520 (1999). The subject of this appeal involves a cross-claim in the malicious prosecution action filed by the McCartneys against Noah for legal malpractice in bringing the underlying antitrust action. The district court granted summary judgment to Noah. We affirm.

In its summary judgment in this case, the trial court identified by reference the uncontroverted facts upon which it based its conclusions of law. Those facts relate to both the malicious prosecution action and this malpractice action. However, because all of the facts are identified by the trial court in its grant of summary judgment in this action, they are set forth in full:

"1. Plaintiffs in the present case assert that Don W. Noah and Noah & Harrison, P.A., maliciously prosecuted claims against them on behalf of Roger McCartney in the case styled Roger McCartney d/b/a/ Stockman's Livestock Exchange and Charlene McCartney v. Farmers Livestock Commission Co., Inc., Marvin Bergstrom, Marilyn Bergstrom, Ben Dreesen, and Karen Dreesen, Case No. 92-C-04, filed in Republic County, Kansas (hereinafter referred to as the 'underlying litigation'), a true and correct copy of the Petition filed in the underlying litigation against plaintiffs (hereinafter collectively referred to as the FLCC parties)....

"2. The following pleadings were filed, and rulings were made, with regard to dispositive motions in the underlying litigation:

(a) The FLCC parties served a Motion to Dismiss on or about May 7, 1992, and Dr. McCartney responded to that motion on or about June 29, 1992....

(b) The District Court denied the FLCC parties' Motion to Dismiss on July 6, 1992....

(c) The FLCC parties filed a Motion for Interlocutory Appeal on or about July 21, 1992. That Motion for Interlocutory Appeal stated in pertinent part that:

'2.... Specifically, Defendants contended that Plaintiff had failed to allege an antitrust conspiracy or combination under applicable law. On July 13, 1992, the Court filed an order denying Defendants' Motion.

'3.... (1) The order involved a controlling question of law as to which there is substantial ground for difference of opinion; ...

... Has Plaintiff alleged or is he able to show an antitrust conspiracy or combination? Furthermore, there is substantial ground for difference of opinion because this question has not been directly addressed by the Kansas appellate courts. This question requires a determination of how a conspiracy must be [pled], as well as what conduct constitutes an antitrust conspiracy....'

....

(d) The Motion for Interlocutory Appeal was denied by the District Court on September 3, 1992....

(e) The FLCC parties filed a Memorandum Brief In Support of Defendants' Motion for Summary Judgment on or about July 26, 1993....

(f) A response to the FLCC parties Motion for Summary Judgment was filed on August 19, 1993....

(g) The FLCC parties filed a reply to Dr. McCartney's response to Motion for Summary Judgment on or about August 25, 1993....

(h) The District Court initially denied FLCC parties' Motion for Summary Judgment on August 23, 1993....

(i) On or about August 25, 1993, the FLCC parties filed a Motion for Reconsideration of the District Court's denial of Summary Judgment....

(j) Summary Judgment was granted by the District Court to the FLCC parties on August 31, 1993 in response to the Motion for Reconsideration filed by the FLCC parties....

(k) A Motion to Alter and Amend was thereafter filed on behalf of Dr. McCartney on September 30, 1993....

(l ) Dr. McCartney's Motion to Alter and Amend was denied on November 9, 1993....

(m) The District Court's Order of Summary Judgment was thereafter appealed on behalf of Dr. McCartney, and the decision of the District Court was upheld on appeal....

"3. At the time the underlying litigation was filed, Dr. McCartney was the owner of Stockman's Livestock Exchange sale barn in Belleville, Kansas, and he remains the owner of the sale barn....

"4. The FLCC parties are all involved in the ownership, and operation, of the Farmers Livestock sale barn in Washington, Kansas, and have been involved in such ownership, and operation of the sale barn since 1984....

"5. The livestock auction barn located at Washington, Kansas, was closed from 1982 until it was opened by FLCC on November 18, 1984....

"6. Prior to the FLCC parties becoming involved with the FLCC sale barn in 1984, the sale barn had been through hard financial times, and, in fact, was acquired by the Bergstroms and Dreesens from a trustee in bankruptcy....

"7. Mr. and Mrs. Bergstrom and Mr. and Mrs. Dreesen first became involved in the sale barn business together when they entered into an agreement to purchase the FLCC sale barn at a bankruptcy sale....

"8. When the Bergstroms and Dreesens entered into the agreement to purchase the FLCC sale barn each couple agreed to pay half of the price, and did pay half the price each. The total purchase price was approximately $12,000....

"9. Dr. McCartney purchased Stockman's Livestock Exchange in 1985 for the "10. Over the next few years the number of livestock being sold through Dr. McCartney's sale barn decreased....

sum of Three Hundred Thousand Dollars ($300,000.00)....

....

"14. The value of a sale barn is determined by the number of livestock going through it....

"15. In 1986 Dr. McCartney obtained information leading him to believe that trucking was being provided to farmers by FLCC through C & C Truckline operated by Adolph Charbonneau, and was being paid for by one or more of the FLCC parties, not by the farmers....

"16. Specifically, in 1986, Dr....