Bryant v. Bryan Cave, LLP

• Decision Date: 25 June 2013
• Docket Number: No. ED 97978.,ED 97978.
• Citation: 400 S.W.3d 325
• Parties: Donald L. BRYANT, Jr., Appellant, v. BRYAN CAVE, LLP, and Lawrence Brody, Respondents.
• Court: Missouri Court of Appeals

400 S.W.3d 325

Donald L. BRYANT, Jr., Appellant,

v.BRYAN CAVE, LLP, and Lawrence Brody, Respondents.

No. ED 97978.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 5, 2013.

Application for Transfer Denied June 25, 2013.

Laurence D. Mass, Laurence D. Mass Attorney at Law, St. Louis, MO, David B. Markowitz, Joseph L. Franco, Markowitz, Herbold, Glade & Mehlhaf, P.C., Portland, OR, for Appellant.

Robert T. Haar, Susen E. Bindler, Haar & Woods, LLP, St. Louis, MO, for Respondents.

KURT S. ODENWALD, Judge.

Introduction

Donald Bryant (“Bryant”) appeals from the trial court's grant of summary judgment in favor of Lawrence Brody (“Brody”) and Bryan Cave (collectively “Respondents”) in Bryant's action for legal malpractice against Respondents. Bryant brought the underlying action alleging two counts of negligence in connection with an antenuptial agreement prepared by Respondents. Bryant alleges that Respondents' negligence caused his payment obligation to his former wife, Barbara Murphy (“Murphy”) to unnecessarily and substantially increase upon their divorce. Respondents filed a motion for summary judgment asserting that Bryant failed to produce sufficient admissible evidence to establish the requisite proximate cause between the alleged acts of negligence and Bryant's alleged damages. The trial court found that, after an adequate period of discovery, Bryant had not produced sufficient evidence that would allow a jury to find the requisite causation to establish Bryant's claims of legal malpractice, and granted Respondents' motion for summary judgment. The evidence before us does not raise a genuine issue of fact to support a finding that the financial consequences of Bryant's divorce from Murphy proximately resulted from Respondents' actions in negotiating the antenuptial agreement. Because Bryant failed to adduce sufficient evidence allowing a jury to find this essential element to his claims of negligence, we affirm the judgment of the trial court.

Factual and Procedural History

Construed in the light most favorable to Bryant, the record contains the following facts. In 1981, Bryant requested Brody to negotiate and draft an antenuptial agreement (hereinafter “1981 agreement”) in contemplation of Bryant's upcoming marriage to Murphy. Brody negotiated the 1981 agreement with Murphy's attorney, Andrew Greensfelder (“Greensfelder”). On July 7, 1981, Bryant and Murphy executed their first antenuptial agreement. Although, the exact terms of the 1981 agreement are not at issue in this appeal, the agreement generally provided that in the event of their divorce, Murphy would receive her separate property, plus a payment from Bryant in an amount equal to 25 percent of a complicated valuation of Bryant's separate property, marital property, and gifts made by Bryant to Murphy during the marriage.

In 1985, Brody and Greensfelder began to discuss an amendment to the 1981 agreement. Bryant's stated reasons for wanting to amend the 1981 agreement were to gain the ability to purchase jointly owned marital property from Murphy in the event of a divorce, to clarify the provision providing Bryant a credit for gifts given to Murphy against any future payment obligation, and to create a $2 million irrevocable trust for Murphy. The specifics of these negotiations are, in large part, the subject of this appeal, and are detailed more fully below. However, the parties agree that, at some point during the four-year-long negotiations, Brody and Greensfelder discussed the possibility of abandoning the complex formulas and calculations set forth in the 1981 agreement and simplifying Bryant's payment obligation to a payment of a fixed amount to Murphy. The sum of $7 million was suggested by Greensfelder as a possible amount of the fixed payment, although that figure was not presented by Greensfelder as a definite offer. In addition, Greensfelder noted that any fixed payment must include a cost-of-living increase (hereinafter “fixed-amount proposal”). After reviewing the fixed-amount proposal, Brody sent a letter to Greensfelder, a letter which Bryant also received, stating that any fixed payment must be limited to a certain percentage of Bryant's worth in order to protect Bryant in the event he suffered any substantial future financial losses. The parties agree that the discussions regarding a fixed-amount proposal ended, and both parties pursued negotiations of a revised antenuptial agreement containing terms of payment similar in form to the terms of the 1981 agreement.

On December 3, 1989, the parties executed the new antenuptial agreement (hereinafter “1989 agreement”), which replaced the 1981 agreement. The 1989 agreement generally provided that in the event of a divorce, Murphy would receive her own separate property and a payment from Bryant equal to 25 percent of a complicated valuation of Bryant's separate property, marital property and liability, and gifts made by Bryant to Murphy. The 1989 agreement did not adjust the valuation of Bryant's property by allowing a deduction for any capital gains tax liability on such property from the valuation. The 1989 agreement did not include any payment terms relating to the fixed-amount proposal. In consideration for entering into the 1989 agreement, Murphy received a $2 million irrevocable trust.

In 2006, Murphy filed a petition for dissolution of marriage. A divorce court found the 1989 agreement was valid. For purposes of determining the fair market value of the estate from which Bryant's payment obligation would be calculated, Bryant argued that the valuation of his assets was to be reduced by any future capital gains tax liability on said assets. The divorce court rejected Bryant's proposed valuation of assets, noting that the 1989 agreement was silent on the issue of any valuation adjustment for capital gains tax liability. Relying on In re Marriage of Richardson, 204 S.W.3d 382, 383 (Mo.App. S.D.2006), the divorce court held that capital gains taxes should not be deducted from the value of property unless that sale of an asset is imminent, triggering the immediate requirement to pay capital gains tax. Because there was no evidence of Bryant's intent to sell any of the assets at issue, the divorce court found that the fair market value of Bryant's assets should not be reduced by a speculative amount of any later-paid capital gains taxes. The trial court assessed the accumulated assets of the marital estate at approximately $227 million. Pursuant to the 1989 agreement, the divorce court ordered that Bryant would retain ownership of the actual assets, and further ordered that Bryant pay Murphy approximately $22.8 million over nine years.

In July 2009, Bryant filed suit against Respondents for legal malpractice. In his amended petition, Bryant alleged that Respondentsnegligently failed to address the capital gains issue in the 1989 agreement. Specifically, Bryant alleged that the formula used in the 1989 agreement to calculate his liability to Murphy included a fair market valuation of certain assets, and that Respondents were negligent by not including a provision reducing the valuation of those assets by the amount of capital gains taxes liability Bryant would pay on the assets if such assets were sold at the time of the divorce decree (hereinafter “capital gains provision”). In a separate count, Bryant also averred that Respondents were negligent in failing to effectively pursue the fixed-amount proposal.

After discovery, Respondents filed, and the trial court granted, a motion for summary judgment. Respondents argued, inter alia, that Bryant failed to produce competent evidence from which a trier of fact could reasonably find that any act or omission by Respondents caused Bryant damages. The trial court found that Bryant's claims required competent evidence that, but for Respondents' negligence, Murphy would have agreed to either the capital gains provision or the fixed-amount proposal. The trial court noted that Bryant's evidence of causation was derived from inadmissible speculation that Murphy would have agreed to either of these provisions had such provisions been presented to her during the negotiations of the 1989 agreement. Absent admissible evidence of causation, the trial court granted summary judgment in favor of Respondents on Bryant's claims of legal malpractice. This appeal follows.

Points on Appeal

On appeal, Bryant asserts multiple points of error. In his first point, Bryant argues that the trial court erred in granting summary judgment because the record contains sufficient admissible evidence that created a genuine issue of fact as to causation on both counts of negligence. In his second and third points, Bryant asserts that the trial court erred in failing to consider expert opinion evidence proffered by Bryant that created a genuine issue of fact as to causation on both counts of negligence. In his fourth point, Bryant contends that the trial court erred in applying an incorrect legal standard of causation to Bryant's claim of negligence based upon the fixed-amount proposal, and therefore improperly granted summary judgment.

Standard of Review

We review the entry of summary judgment de novo. Rice v. Shelter Mut. Ins. Co., 301 S.W.3d 43, 46 (Mo. banc 2009). We review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Defendants may establish their right to summary judgment by showing: facts negating any element of the plaintiff's cause of action; that the plaintiff has presented insufficient evidence to allow the finding of the existence of any one of the elements of the plaintiff's action; or that there is no genuine dispute as to the existence of each of the facts necessary to support a properly pleaded affirmative defense. Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 58–59...