Collins v. Missouri Bar Plan

• Decision Date: 11 January 2005
• Docket Number: No. WD 63003.,WD 63003.
• Citation: 157 S.W.3d 726
• Parties: Chandrika C. COLLINS and Chad T. Collins, Appellants, v. MISSOURI BAR PLAN, as defendant ad litem for Barry Anderson, Strong and Strong, Sanford P. Krigel, Krigel and Krigel, P.C., Respondents, and Samuel C. Totaro, Jr., Eugene E. Kellis, Howard H. Soffer, Holly Kellis Soffer, Michael J. Belfonte, Tammy Thompson, and Janet Wake-Larison, Defendants.
• Court: Missouri Court of Appeals

157 S.W.3d 726

Chandrika C. COLLINS and Chad T. Collins, Appellants, v. MISSOURI BAR PLAN, as defendant ad litem for Barry Anderson, Strong and Strong, Sanford P. Krigel, Krigel and Krigel, P.C., Respondents, and Samuel C. Totaro, Jr., Eugene E. Kellis, Howard H. Soffer, Holly Kellis Soffer, Michael J. Belfonte, Tammy Thompson, and Janet Wake-Larison, Defendants.

No. WD 63003.

Missouri Court of Appeals, Western District.

January 11, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.

Application for Transfer Denied April 5, 2005.

Michael Taylor, St. Joseph, Robert Langdon, Lexington, for Appellant.

James Morrow, James Ensz, Kansas City, for Respondent.

PAUL M. SPINDEN, Judge.

After protracted litigation over adoption of the infant son of Chad T. and Chandrika C. Collins by a Pennsylvania couple, the Collinses sued a number of individuals involved in the adoption, including all of the attorneys. They charged the attorneys with malpractice, breach of fiduciary duty, and negligent misrepresentation. This appeal concerns only two of the attorneys, Barry Anderson, deceased, and his law firm, Strong and Strong, and Sanford P. Krigel and his law firm, Krigel and Krigel. The circuit court entered summary judgment for these attorneys. The circuit court erred in granting summary judgment, and we remand for further proceedings.

In reviewing this case and in setting out the facts below, we view the evidence in a light most favorable to the Collinses. This is because, when we review an appeal of a summary judgment, we view the evidence in a light most favorable to the nonmoving party, and we afford that party the benefit of all reasonable inferences. ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 382 (Mo. banc 1993).

This lawsuit arose from the Collinses' consent during 1995 to the adoption of their son by Joseph and Diane Standen, a married couple living in Pennsylvania. The Standens hired Samuel C. Totaro, Jr., a lawyer in Furlong, Pennsylvania, to help them with the adoption. Totaro hired Krigel, a lawyer in Kansas City, to represent the Collinses. Viewed in a light most favorable to the Collinses, evidence presented to the circuit court indicated that Krigel advised Chandrika Collins concerning the law and assured her that she could withdraw her consent to the adoption at any time before the adoption became final. Chandrika Collins believed that Krigel represented her as her attorney.

In early November 1995, Totaro also hired Anderson to represent the Collinses because the Collinses resided in St. Joseph. The Collinses believed that Krigel and Anderson both represented them. On November 21, the Collinses met with Anderson, and he advised the Collinses concerning the law. He told them that they could withdraw their consent to the adoption at any time before the adoption was final.

On December 10, 1995, the Collinses' son was born. The Collinses met with Anderson the next day, and he explained adoption consent forms to them. At a hearing before the circuit court two days later, the Collinses, the Standens, and Anderson appeared, and the Collinses executed their consent to the adoption. The circuit court entered a temporary custody order transferring custody to the Standens.

On December 15, 1995, the Collinses decided to withdraw consent to the adoption. When the Collinses told the Standens of their decision, the Standens asked to see the infant one more time. The Collinses agreed, but when the Standens had physical custody of the child they locked themselves in their hotel room with the child and refused to return him to the Collinses. The Collinses telephoned Anderson, but he told them that he could not help them.

On December 19, 1995, the circuit court convened another hearing. The Collinses did not attend the hearing, and the circuit court ordered transfer of legal custody to the Standens, who returned to Pennsylvania with the child.

Later in December 1995, the Collinses hired Janet Wake-Larison, a lawyer in Grant City, to aid them in regaining custody of their son. Wake-Larison filed a motion seeking the circuit court's leave for the Collinses to withdraw their consent to the adoption. The circuit court denied the motion because the motion did not allege grounds for which the circuit court could grant relief. This court affirmed the circuit court's decision in In Interest of D.C.C., 935 S.W.2d 657 (Mo.App.1996) (D.C.C.I).

After this court issued its opinion, the Collinses filed another motion to withdraw their consent, alleging various grounds, including fraud, misrepresentation, and duress. The circuit court dismissed this motion without a hearing on the ground that the Collinses were estopped from denying that they had consented to the adoption because of their original representations to the circuit court. In In the Interest of D.C.C., 971 S.W.2d 843 (Mo.App.1998) (D.C.C.II), this court remanded the case for a hearing on the issues of fraud and misrepresentation. While the circuit court was considering the remand, the Collinses and the Standens settled their dispute by agreeing to joint custody.

After the settlement, the Collinses filed this lawsuit. They charged Anderson and his firm with malpractice, breach of fiduciary duty, and negligent misrepresentation. They accused Krigel and his firm of malpractice and breach of fiduciary duty. The lawyers moved for summary judgment, and the circuit court granted the motions. Although the circuit court's order did not dispose of all of the Collinses' claims, the circuit court ruled, pursuant to Rule 74.01(b), that no reason justified delay of this appeal.

Our review of the circuit court's summary judgment is essentially de novo. ITT Commercial Finance Corporation, 854 S.W.2d at 376. To enter summary judgment, the circuit court must determine that the parties are not disputing any issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. Id. at 377; Rule 74.04(c)(6).

"The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question." ITT Commercial Finance Corp., 854 S.W.2d at 380.

[A] "defending party" may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

Id. at 381 (emphasis omitted). Because summary judgment is "an extreme and drastic remedy," we exercise great caution in affirming it because the procedure cuts off the opposing party's day in court. Id. at 377. We must "sustain the trial court's award of summary judgment if the judgment can be sustained under any theory" supported by the summary judgment record. Rodgers v. Czamanske, 862 S.W.2d 453, 458 (Mo.App.1993) (citing Zafft v. Eli Lilly & Company, 676 S.W.2d 241, 243 (Mo. banc 1984)).

In its order granting summary judgment, the circuit court declared that it had "determine[d] as to [the lawyers] that the damage of which the [Collinses] complain[ed] was not directly and proximately caused by the action of the [lawyers] as alleged in the [Collinses'] pending petition." The lawyers had argued to the circuit court that Wake-Larison's negligence was an intervening cause that cut off their liability. The circuit court erred in resting summary judgment on either Wake-Larison's alleged negligence being an intervening cause or on the Collinses' not showing that the attorneys caused their injury.

To establish a claim for legal malpractice, a plaintiff must prove negligence and a causal connection between his or her attorney's negligence and the resulting injury. Id. "To prove damages and causation, the plaintiff must prove that, but for the attorney's negligence, the result of the underlying proceeding would have been different." Id. A defendant's conduct is the proximate cause of a plaintiff's injury when the injury is the natural and probable consequence of the conduct. Schaffer v. Bess, 822 S.W.2d 871, 876 (Mo.App.1991). Conduct by multiple defendants can be deemed to be the cause of a single injury, and each of the defendants can be liable if his negligence was an efficient cause of the plaintiff's injury "without which the injury would not have occurred." Id. at 876-77.

An intervening cause breaks the chain of causation, and this doctrine can apply to an attorney malpractice case. See Rodgers, 862 S.W.2d at 458. "An intervening cause is a new and independent force which interrupts the chain of events initiated by the defendant's negligence in such a significant manner as to become the direct and proximate cause of the plaintiff's damages." Id. For a later cause to intervene sufficiently to cut off another defendant's liability for prior negligence, the later cause must break the chain of events so that "the result is no longer the natural and probable consequence of the primary cause or one which ought to have been anticipated." Love v. Deere & Company, 684 S.W.2d 70, 75 (Mo.App.1985). If the purported intervening cause occurs in combination or concurrent with earlier negligence, it is not an intervening cause. Buchholz v. Mosby-Year Book, Inc., 969 S.W.2d 860, 862 (Mo.App.1998); Buck v. Union Electric Company, 887 S.W.2d 430, 434 (Mo.App.1994).

Viewing the facts in a light most favorable to the Collinses, we conclude that Wake-Larison's negligence was not an intervening cause. The lawyers involved in the case before her involvement had negligently advised the Collinses that they could revoke their consent at any time before the adoption was final. This advice played...