Day Advertising Inc. v. Devries and Assoc.

• Citation: 217 S.W.3d 362
• Decision Date: 27 March 2007
• Docket Number: No. WD 66586.,WD 66586.
• Parties: DAY ADVERTISING INC., Appellant, v. DEVRIES AND ASSOCIATES, P.C., F. Coulter Devries, and Daniel R. Jones, Respondents.
• Court: Court of Appeal of Missouri (US)

217 S.W.3d 362

DAY ADVERTISING INC., Appellant, v. DEVRIES AND ASSOCIATES, P.C., F. Coulter Devries, and Daniel R. Jones, Respondents.

No. WD 66586.

Missouri Court of Appeals, Western District.

March 27, 2007.

Todd A. Nielsen, Kansas City, MO, for appellant.

Byron A. Bowles, Jr., Roeland Park, KS, for respondent.

Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and JAMES M. SMART, JR., Judge.

JOSEPH M. ELLIS, Judge.

Appellant Day Advertising, Inc.¹ appeals a judgment for the defense in its legal malpractice suit against Respondents DeVries & Assoc., P.C., F. Coulter DeVries, and Daniel R. Jones. For the following reasons, we affirm the trial court's judgment.

Appellant hired Respondents to represent it in litigation against a former employee arising from the employee's alleged violation of a non-compete clause in his employment contract. After filing various lawsuits, Respondents negotiated a settlement of all claims between Appellant and the former employee. Appellant perceived the settlement terms as unfavorable and sued Respondents for legal malpractice, alleging eleven separate negligent acts.

The case was tried by jury over the course of eight days. At the close of Appellant's evidence, Respondents moved for a directed verdict on various grounds, but the trial court granted the motion only as to Appellant's claims of negligence related to the filing of an action in federal court. The jury returned a verdict assessing 10% fault to Respondent DeVries, 5% fault to Respondent Jones, and 85% fault to Appellant. Despite having found fault on the part of Respondents, the jury awarded no damages to Appellant. There were no objections to the verdict at that time, and the court subsequently entered a judgment consistent with the verdict.

Appellant filed a timely motion for new trial. This motion was not ruled upon and, as Appellant concedes, was overruled by effect of law. See Rule 78.06. This appeal follows.

For its first point on appeal, Appellant argues that the trial court erred in permitting two expert witnesses to testify on behalf of Respondents because they were identified several months after the deadline established by the court's scheduling order. Appellant contends that prejudice is inferred by the late identification and that it was, therefore, unable to adequately prepare for trial and cross-examination of these experts.

We note, initially, that Appellant failed to preserve this point for appeal because Appellant did not object to the expert witnesses' testimony at the time it was presented. Although Appellant objected to the testimony in a pretrial motion in limine, which was denied by the trial court, this alone does not preserve the issue for appeal. "`A motion in limine, by itself, preserves nothing for appeal.' To preserve an evidentiary issue on appeal, a party is required to object at trial to the introduction of the evidence and to reassert the objection in post trial motions." Peters v. General Motors Corp., 200 S.W.3d 1, 15 (Mo.App. W.D.2006) (quoting Hancock v. Shook, 100 S.W.3d 786, 802 (Mo. banc 2003)).

Because this issue was not properly preserved, our review is limited to plain error. "Plain error affecting substantial rights may be considered on appeal, at this court's discretion, even when not raised or preserved, when we find manifest injustice or a miscarriage of justice has resulted." Guess v. Escobar, 26 S.W.3d 235, 241 (Mo. App. W.D.2000) (citing Rule 84.13(c)).

Under Rule 84.13(c), plain error review involves a two-step process. First, we determine whether the claimed error facially establishes substantial grounds for believing that a manifest injustice or miscarriage of justice has resulted. In other words, we must first determine whether, on the face of the claim, plain error has, in fact, occurred. Errors are plain if they are evident, obvious, and clear. In the absence of such error, we should decline to exercise our discretion to review the claimed error under Rule 84.13(c). If we find plain error on the face of the claim, we may proceed, at our discretion, to the second step to consider whether a miscarriage of justice or manifest injustice will occur if the error is left uncorrected.

Pope v. Pope, 179 S.W.3d 442, 459 (Mo. App. W.D. banc 2005) (internal quotation omitted).

"Under § 490.065, the determination of the admissibility of expert testimony is left to the sound discretion of the trial court, and, therefore, the trial court's ruling as to the exclusion of evidence will not ordinarily be overturned unless it is an abuse of discretion." McReynolds v Mindrup, 108 S.W.3d 662, 665 (Mo.App. W.D.2002), abrogated on other grounds (internal quotations omitted).

Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Blake v. Irwin, 913 S.W.2d 923, 931 (Mo. App. W.D.1996) (quotation omitted). When reviewing the trial court's decision regarding issues arising from pre-trial discovery, "[w]e look only for an abuse of this broad discretion which results in prejudice or unfair surprise." Ellis v. Union Elec. Co., 729 S.W.2d 71, 74 (Mo.App. E.D.1987).

Respondents were ordered to name their expert witnesses by August 25, 2004. Respondents never formally identified the two expert witnesses in question, but they advised Appellant's trial counsel of them on February 10, 2005. Appellant objected to the designation of the expert witnesses during a telephone hearing on February 16, 2005. The trial court overruled the objection, ordered the experts to be deposed by March 10, 2005, and continued the trial to April 18, 2005.² Appellant's trial counsel deposed the witnesses on March 1, 2005, and March 22, 2005.

Far from "facially establish[ing] substantial grounds for believing that a manifest injustice or miscarriage of justice has resulted," Pope, 179 S.W.3d at 459, the trial court's orders continuing the trial for more than two months and assuring that Appellant had the opportunity to depose the witnesses well before the trial date conclusively demonstrate that there was no error, plain or otherwise. The trial court did not abuse its discretion, and there certainly was no manifest injustice or miscarriage of justice. Point denied.

Appellant asserts in its second point that the trial court erred in allowing Respondents to present evidence regarding consideration and liquidated damages in the underlying suit because they did not plead these issues as affirmative defenses in the legal malpractice suit. Appellant argues that the failure to plead these issues resulted in prejudice and unfair surprise to Appellant on the issue of causation in the legal malpractice suit.

As with its first claim, Appellant failed to preserve this issue for appeal. "To preserve evidentiary questions for appeal, there must be an objection giving the grounds at the time the evidence is sought to be introduced, and the same objection must be set out in the motion for new trial then carried forward in the appeal brief." Enos v. Ryder Auto. Operations, Inc., 73 S.W.3d 784, 788-89 (Mo.App. E.D.2002) (internal quotation omitted). Although Appellant did object to some of the testimony, the objections were based on "immateriality" and did not point out to the court the alleged error of failure to plead an affirmative defense. Accordingly, our review is again limited to plain error.

Here again, we must first determine whether the claim "facially establishes substantial grounds for believing that a manifest injustice or miscarriage of justice has resulted." Pope, 179 S.W.3d at 459.

Appellant's brief focuses on Respondents' handling of the underlying breach of contract claim against Appellant's former employee. Appellant sought damages from its former employee under a liquidated damages clause. All claims were eventually settled. Appellant argues that, but for Respondents' alleged negligence, Appellant would have recovered liquidated damages in the underlying contract action. At trial on the legal malpractice action, Respondents presented the evidence at issue to show that there was inadequate consideration for the employment contract³ and that the liquidated damages clause was unenforceable. Appellant contends that these were affirmative defenses and that, therefore, Respondent was required to plead them in their answer to the legal malpractice action.⁴

Appellant overlooks its own burden in the legal malpractice suit. "The plaintiff [in a legal malpractice suit] has the burden to establish the defendant's negligence proximately resulted in damages to the plaintiff." Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App. E.D.1999). "[B]ecause the alleged damages are based on the resolution of the underlying action ..., the plaintiff must prove a `case within a case.'" Williams v. Preman, 911 S.W.2d 288, 294 (Mo.App. W.D.1995), overruled on other grounds by Klemme v. Best, 941 S.W.2d 493, 496 (Mo. banc 1997). The plaintiff "must prove that [it] had a valid claim or defense." Mogley, 11 S.W.3d at 749 (citing Briggs v. King, 714 S.W.2d 694, 698 (Mo.App. W.D.1986)). When bringing a legal malpractice action after settling the underlying action, "[t]he plaintiff's obligation is to prove that the settlement was necessary to mitigate damages, or that plaintiff was driven to the necessity of settling because, if the case had not been settled, plaintiff would have been worse off." Collins v. Mo. Bar Plan, 157 S.W.3d 726, 736 (Mo.App. W.D.2005) (internal quotations omitted).

Thus, in order to prevail in the legal malpractice action, Appellant must prove that it could have overcome any affirmative defenses in the underlying suits had the case not been...