Bowman v. Doherty

• Decision Date: 13 July 1984
• Docket Number: No. 56047,56047
• Citation: 235 Kan. 870,686 P.2d 112
• Parties: Michael A. BOWMAN, Appellant and Cross-Appellee, v. Harold A. DOHERTY, Appellee and Cross-Appellant.
• Court: Kansas Supreme Court

Page 112

686 P.2d 112

235 Kan. 870

Michael A. BOWMAN, Appellant and Cross-Appellee, v. Harold A. DOHERTY, Appellee and Cross-Appellant.

No. 56047.

Supreme Court of Kansas.

July 13, 1984.

Syllabus by the Court

1. The general rule used in cases of unintentional negligence--that mental suffering unaccompanied by bodily injury is not a ground for recovery--is not applicable in cases of a wrong where the act is wanton or willful or where the act is committed with malice and intended to cause mental distress.

2. The general rule of negligence has no application to willful or wanton wrongs. A willful wrong involves an intentional act and intentional injury. A wanton wrong involves an intentional act but not an intentional injury; the act is intentional and purposeful, but the consequences of the act are not.

3. One being negligently deprived of his freedom suffers an injury which could cause mental distress.

4. Whether a client was injured and suffered mental distress when deprived of his freedom because his attorney failed to act or acted in a wanton manner is a question of fact for the jury to determine.

5. An attorney is obligated to his client to use reasonable and ordinary care and diligence in the handling of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other attorneys in his community.

6. The duty of an attorney to exercise reasonable and ordinary care and discretion remains the same for all attorneys, but what constitutes negligence in a particular situation is judged by the professional standards of the particular area of the law in which the practitioner is involved.

7. Expert testimony is generally required and may be used to prove the standard of care by which the professional actions of the attorney are measured and whether the attorney deviated from the appropriate standard.

8. There is a common knowledge exception to the rule requiring expert testimony in malpractice cases. Expert testimony is not necessary where the breach of duty on the part of the attorney, or his failure to use due care, is so clear or obvious that the trier of fact may find a deviation from the appropriate standard of the legal profession from its common knowledge.

9. Legal and medical malpractice generally constitute both a tort and a breach of contract.

10. Where the act complained of is a breach of specific terms of the contract without any reference to the legal duties imposed by law upon the relationship created thereby, the action is contractual. Where the gravamen of the action is a breach of a duty imposed by law upon the relationship of attorney/client and not of the contract itself, the action is in tort.

11. An award of punitive damages is to punish the wrongdoer, not to compensate for the wrong. Comparative negligence focuses on the harm suffered and proportionate fault of all the parties to the occurrence. Considerations are different in assessing punitive damages from those assuring the injured party proper compensation. Punitive damages and comparative fault are separate. The trial judge correctly refused to apportion the punitive damages assessed against the defendant by the percentage of fault attributed to the parties under the comparative negligence statute, K.S.A. 60-258a.

Patrick Nichols, Topeka, argued the cause and was on the briefs for appellant and cross-appellee.

Alan V. Johnson of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, argued the cause, and Myron L. Listrom, Topeka, of the same firm, was with him on the brief for appellee and cross-appellant.

LOCKETT, Justice:

This is a legal malpractice case tried to a jury in the Shawnee County District Court. The plaintiff, Michael Bowman, appealed the trial court's granting defendant's motion for partial summary judgment, and the defendant, Harold Doherty, cross-appealed the jury's finding of legal malpractice.

Michael Bowman was arrested for giving a worthless check on December 27, 1978. He was released on bond and ordered to appear in court on January 15, 1979. Bowman arrived at the initial appearance without an attorney. The judge informed the plaintiff of his right to an attorney and continued the case until January 22, 1979.

On either January 16 or 17, 1979, the plaintiff left on a skiing trip to Colorado. On January 19, from a hotel in Colorado, Bowman telephoned Harold Doherty, a Topeka attorney, who had helped Bowman with previous legal matters. The plaintiff claimed he retained Doherty to handle this case. Bowman advised Doherty of his upcoming court appearance. Doherty told Bowman he would take care of the matter and to contact him when Bowman returned from Colorado. Doherty called the district attorney's office and made arrangements with one of the deputy district attorneys for the case to be continued for two weeks. When Bowman returned from Colorado, he spoke with Doherty, who assured Bowman the matter would be taken care of.

No continuance was arranged for with the district court. Bowman and Doherty failed to appear in court on January 22, 1979. The judge declared a bond forfeiture and ordered a warrant be issued for Bowman's arrest.

Bowman returned to Topeka from Colorado sometime during the next week following his telephone call to Doherty. Upon his return, Bowman called Doherty again, and the parties agreed to meet to discuss the case. A day or two later Bowman met with Doherty in his office to discuss the matter. According to Bowman, Doherty said, "I will take care of it. This is no problem, don't worry about it."

Several weeks later, in late February or early March of 1979, Bowman received a letter from the sheriff's office, stating he was in contempt of court for failure to appear on January 22. The letter advised Bowman would be arrested if he did not present himself at the Shawnee County Courthouse. After receiving the letter, Bowman called Doherty and described the letter to him. Doherty told Bowman to come in to his office and bring the letter with him. Bowman went to Doherty's office and showed him the letter. According to Bowman, Doherty said, "I know what this is, I will take care of it." Doherty took no action.

Approximately one month later, on April 13, 1979, Bowman was arrested at his residence on a charge of aggravated failure to appear. Upon his arrival at the courthouse, Bowman was allowed to make a telephone call to Mr. Doherty, but was unable to reach him. Bowman then was booked into the county jail where he was held for two or three hours. Bowman eventually called his father who came down to the courthouse to post bond for his son's release. Bowman was handcuffed for three or four minutes while he was moved from his jail cell to the room where the bond papers were signed. The handcuffs caused Bowman to suffer some physical pain.

Later that same day, after Bowman had been released from jail, Bowman's father telephoned Doherty, informed him of the situation, and asked to have an appointment with Doherty. Doherty told Bowman's father to come to his office in the morning. Early the next morning (April 14), both Bowman and his father met with Doherty in his office. After discussing the problem, Bowman's father asked Doherty if he was going to represent Bowman. Doherty, at that point, agreed to represent Bowman in both cases. Bowman's father then asked Doherty what needed to be done to take care of the cases. After reviewing the court papers, Doherty replied that they needed to appear at the next docket which was May 1, 1979. Doherty promised to appear in court for Bowman on May 1.

Sometime after the April 14 meeting, Doherty arranged to have both of Bowman's cases continued from the May 1 docket to the May 10 docket. Bowman and his father were notified by Doherty that the cases had been continued. Father and son appeared in court May 10. Doherty did not appear. Judge Hope recommended that Bowman and his father hire another attorney, which they did. Once the new attorney had been hired, both of Bowman's cases were resolved.

There was a sharp conflict in the testimony at trial whether or not Doherty had agreed to represent Bowman. Bowman claimed Doherty promised "to take care of" Bowman's case. Doherty testified he agreed to represent Bowman only if Bowman paid Doherty $100.00 in advance. Bowman never came up with the $100.00 fee, and therefore Doherty never undertook to represent Bowman.

In regard to the telephone call by Bowman from Colorado on January 19, Doherty testified that Bowman asked him to obtain a continuance of the bad check case "as a favor" for Bowman. Doherty told Bowman that he would "continue it for him."

At the meeting with Bowman following his return from Colorado, Doherty testified he told Bowman the case could be taken care of. Doherty meant by this that a post-dated check was involved, and that he had learned from the assistant district attorney they did not prosecute cases involving post-dated checks. Doherty told Bowman that it would cost $100.00 for Doherty to dispose of the case, and that Doherty would represent Bowman when Doherty received the $100.00.

Doherty testified that he instructed Bowman that the letter from the sheriff's office required Bowman to go over to the courthouse and make bond, or they would arrest him. Doherty explained to Bowman that Doherty could not make Bowman's bond, since a lawyer is prohibited by statute from posting bond in the county in which he lives.

Doherty denied that he ever told Bowman's father that he would take care of Bowman's cases. According to Doherty, he only told Bowman's father that the cases could be taken care of through an agreement with the district attorney. Doherty denied discussing the $100.00 fee with Bowman's father during the meeting. However, Doherty testified after the meeting was over, Bowman came back to Doherty's office without his father. Doherty again explained to Bowman that he would get...