Canaan v. Bartee

Citation276 Kan. 116,72 P.3d 911
Decision Date18 July 2003
Docket Number023.,No. 89,89
CourtUnited States State Supreme Court of Kansas

Patrick A. Hamilton, of McDowell, Rice, Smith & Gaar, P.C., of Overland Park, argued the cause and was on the brief for appellant.

Jeff D. Morris, of Berkowitz, Stanton, Brandt, Williams & Shaw, LLP, of Prairie Village, argued the cause, and James L. Eisenbrandt, of the same firm, was with him on the brief for appellee Michael Bartee.

James D. Griffin, of Blackwell, Sanders, Peper & Martin, LLP., of Overland Park, was on the brief for appellee D. Allen Bush.

Thomas Wright, of Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, of Topeka, was on the brief for appellee Mary Curtis.

B. Kay Huff, of Lawrence, was on the brief for appellee Kelly Jernigan.

Loren F. Snell, Jr., assistant attorney general, and Carla J. Stovall, attorney general, were on the brief for appellees.

72 P.3d 911, cert. denied 540 U.S. 1090 2003

The opinion of the court was delivered by LUCKERT, J.:

This case presents the issue of whether a criminal defendant must obtain postconviction relief in order to maintain a legal malpractice action against his or her defense attorneys. Marvin Canaan, after being convicted of first-degree murder and other crimes and sentenced to life in prison, sued his court-appointed defense attorneys and their legal investigator for legal malpractice. The district court granted summary judgment for the defendants, ruling that Kansas should require exoneration by postconviction relief as a prerequisite to a legal malpractice claim arising out of a criminal proceeding. The district court also denied Canaan the amount of attorney fees he requested after defendants failed to comply with discovery requests. Canaan appealed.

Along with a large majority of courts to address this issue, we adopt the rule that a person convicted in a criminal action must obtain postconviction relief before maintaining an action alleging malpractice against his former criminal defense attorneys. Because Canaan had not obtained such relief, summary judgment was appropriate. We affirm the district court's decision on this issue.

We also affirm the district court's decision to not assess monetary sanctions, other than attorney fees, for defendants' failure to comply with discovery. However, we reverse the district court's decision requiring defendants to pay $1,500 in attorney fees, finding no basis in the record to support the award.


In November 1995, a jury in Johnson County, Kansas, convicted Marvin Canaan of first-degree murder, aggravated robbery, and aggravated burglary. This court upheld Canaan's convictions in State v. Canaan, 265 Kan. 835, 964 P.2d 681 (1998).

On January 5, 1998, Canaan filed a lawsuit against Michael Bartee, Kelly Jernigan, Allen Bush, and Mary Curtis. Bartee and Jernigan, attorneys with the Johnson County Public Defender's Office, were Canaan's trial attorneys. Bush worked as a legal investigator for the same office. Curtis, an attorney with the Appellate Defender's Office, represented Canaan on direct appeal. In his petition entitled "Tort Action for Legal Malpractice," Canaan alleged that he was "provably innocent" and that he had been wrongfully convicted as a direct and proximate result of the defendants' legal malpractice. Canaan listed various causes of action including legal malpractice, intentional misrepresentation, breach of contract, breach of warranty, and fraud, all of which the district court deemed claims for legal malpractice or negligence. Canaan sought damages in excess of $50,000.

On February 14, 2000, the district court entered a default judgment against the defendants as a sanction for their failure to comply with Canaan's discovery requests despite two court orders to do so. Until that time, defendants had been represented by Assistant Attorney General James Coder. As a result of his conduct in this case, this court ordered that Coder be suspended from the practice of law for 1 year. In re Coder, 272 Kan. 758, 35 P.3d 853 (2001). Defendants then retained new counsel and filed a motion to set aside the default judgment. The district court denied the motion, but certified its decision for interlocutory appeal.

On appeal, this court reversed the district court's order of default judgment, ruling that the district court abused its discretion in failing to utilize lesser sanctions before entering the ultimate sanction of default judgment and in failing to set aside the default judgment based upon the defendants' excusable neglect. Canaan v. Bartee, 272 Kan. 720, Syl. ¶ 9, 35 P.3d 841 (2001).

After that reversal, Canaan filed a motion for monetary sanctions and award of attorney fees and costs. Defendants filed a motion for summary judgment alleging that Canaan's cause of action had not yet accrued because he had not obtained exoneration by postconviction relief, and that his claims were barred by collateral estoppel because the issue of legal malpractice had already been decided against him in a K.S.A. 60-1507 proceeding.

On March 15, 2002, the district court granted the defendants' motion for summary judgment, agreeing with defendants' argument that exoneration by postconviction relief is an absolute prerequisite to the maintenance of a legal malpractice action arising out of a criminal proceeding. The court stated:

"We agree with defendants that the rule they seek to have applied here is the majority rule. We also agree with them that it is the ruling being adopted by most of the courts that have addressed this question in the recent past. And, most important, we agree that it is the rule that the Kansas appellate courts would and, we think, should apply."

Regarding Canaan's motion for monetary sanctions and attorney fees, the district court assessed an attorney fee award of $1,500 against defendants. That amount was based upon the 10 hours (at $150 per hour) Canaan's attorney spent reviewing the discovery responses finally provided by the defendants after the default judgment.

Canaan and the defendants all filed motions to amend the judgment, which the district court ruled upon in a memorandum decision filed May 23, 2002. Canaan timely appealed. Pursuant to K.S.A. 20-3017, this court granted Canaan's motion to transfer the case from the Court of Appeals.

Simultaneous K.S.A. 60-1507 Proceedings

While this case was proceeding, Canaan sought postconviction relief by filing a pro se K.S.A. 60-1507 motion. Judge William Cleaver entered an order denying Canaan's motion on March 20, 2001. Canaan appealed but later dismissed his appeal in order to seek a rehearing of his K.S.A. 60-1507 motion at the district court level. On September 3, 2002, after a hearing at which Canaan was allowed to present evidence, Judge Cleaver ruled that there was no basis for Canaan's claim of ineffective assistance of counsel and denied his K.S.A. 60-1507 motion.

I. Did the District Court Err in Ruling that Exoneration by Postconviction Relief Is an Absolute Prerequisite to Bringing

a Legal Malpractice Action Arising out of a Criminal Proceeding?

"Today, the courts generally have accepted the principle that guilt or innocence is relevant to pleading and proving a legal malpractice cause of action." 3 Mallen & Smith, Legal Malpractice § 26.3, p. 810 (5th ed. 2000). Recognizing the trend in case law, defendants argue, and Canaan concedes, that a majority of states addressing the issue have held that successful postconviction relief is a prerequisite to the maintenance of a legal malpractice action arising out of criminal proceedings.

Whether a plaintiff must be exonerated in postconviction proceedings before bringing a legal malpractice action against his criminal defense attorney is an issue of first impression in Kansas. This issue presents an issue of law over which this court's review is unlimited. See Prime v. Beta Gamma Chapter of Pi Kappa Alpha, 273 Kan. 828, 830, 47 P.3d 402 (2002).

Kansas Law Regarding Legal Malpractice

Our appellate courts have stated the following requirements in regard to legal malpractice cases in general: "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." Bergstrom v. Noah, 266 Kan. 847, 874, 974 P.2d 531 (1999). In addition to those four elements, to prove legal malpractice in the handling of litigation, a plaintiff must establish the validity of the underlying claim by showing that it would have resulted in a favorable judgment in the underlying lawsuit had it not been for the attorney's error. Webb v. Pomeroy, 8 Kan. App. 2d 246, 249, 655 P.2d 465 (1983).

Only two Kansas cases have dealt with a legal malpractice claim arising out of criminal proceedings: Rice v. Barker & Bunch, P.C., 25 Kan. App. 2d 797, 972 P.2d 786 (1998), and Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984). In Rice, the Court of Appeals addressed a plaintiff's claim against his former attorneys seeking damages for their negligence in defending him on a murder charge. The court upheld the district court's dismissal of plaintiff's claim based upon its application of the rule that "a plaintiff in a legal malpractice case arising out of prior litigation is required to show that but for the negligence of the attorney-defendant, the outcome of the underlying lawsuit would have been successful." 25 Kan. App. 2d at 797-98. Because Rice explicitly acknowledged making no such claim, the Court of Appeals did not discuss how this showing would be made or whether it required exoneration.

In Bowman, the plaintiff retained the defendant, attorney Doherty, to represent him on a charge of giving a worthless check. Although Doherty spoke with a deputy district...

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