ENGLISH EX REL. DAVIS v. HERSHEWE
| Decision Date | 29 June 2010 |
| Docket Number | No. SD 30075.,SD 30075. |
| Citation | 312 S.W.3d 402 |
| Parties | Ed ENGLISH by and through Carol S. DAVIS, Public Administrator of Taney County, Missouri, as Guardian and Conservator of Ed English, Plaintiff-Appellant, v. Edward J. HERSHEWE and The Hershewe Law Firm, P.C., formerly Hershewe & Gulick, P.C., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Donald E. Woody, Springfield, MO, for Appellant.
Ronald E. Mitchell, Joplin, MO, for Respondents.
This is an appeal from a summary judgment on a legal malpractice claim granted in favor of defendant Edward Hershewe (Hershewe) and the Hershewe Law Firm, P.C. (collectively, Defendants) and against plaintiff Ed English (English), by and through his guardian and conservator, Carol Davis (Davis). Because there are genuine issues of material fact that require a trial and Defendants are not entitled to judgment as a matter of law, the judgment is reversed and the cause is remanded for further proceedings.
A summary judgment can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006); Lindsay v. Mazzio's Corp., 136 S.W.3d 915, 919 (Mo.App.2004).1 Appellate review is de novo. Wilson v. Rhodes, 258 S.W.3d 873, 875 (Mo.App.2008). This Court uses the same criteria the trial court should have used in initially deciding whether to grant defendants' motion. Harris v. Smith, 250 S.W.3d 804, 806 (Mo.App.2008). Appellate review is based upon the record submitted to the trial court. Sexton v. Omaha Property and Cas. Ins. Co., 231 S.W.3d 844, 845 (Mo.App.2007). That record is viewed in the light most favorable to the party against whom judgment was entered, and the nonmoving party is accorded the benefit of all inferences which may reasonably be drawn from the record. ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). 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. Summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question. Id. at 380. "A genuine issue of material fact" exists where the record contains competent evidence that two plausible, but contradictory, accounts of essential facts exist. Amusement Centers, Inc. v. City of Lake Ozark, 271 S.W.3d 18, 19 (Mo.App.2008).
As our Supreme Court explained in ITT, Rule 74.04 distinguishes between a motion for summary judgment filed by a "claimant" and by a "defending party." ITT, 854 S.W.2d at 380. Here, the Defendants were the defending parties.
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 nonmovant, 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 (italics in original); see Ameristar Jet Charter, Inc. v. Dodson Int'l Parts, Inc., 155 S.W.3d 50, 58-59 (Mo. banc 2005). "If the trial court grants summary judgment without specifying the basis upon which it was granted, we will uphold the decision if it was appropriate under any theory." Deer Run Property Owners Ass'n v. Bedell, 52 S.W.3d 14, 17 (Mo.App. 2001).
In October 1995, English was injured in an electrocution accident involving power lines owned by Empire District Electric Company (Empire). In June 1998, Hershewe was contacted by attorney Dan Ramsdell (Ramsdell) about taking English's case. At that time, Hershewe was representing another person also injured in the same accident. Hershewe agreed to represent English as trial counsel and co-counsel with Ramsdell.
On August 28, 1998, Hershewe sent a letter (hereinafter referred to as the prejudgment interest letter) to Empire's counsel, Gary Lentz (Lentz). The letter stated that, pursuant to the prejudgment interest statute, English would settle his claim for $2,000,000 and would leave the offer open for 61 days. Another prejudgment interest letter was sent to a different defendant in the case a month earlier by certified mail. Hershewe knew he sent Empire the prejudgment interest letter by facsimile (fax) and believed, based on office policy, that the prejudgment interest letter had also been sent by certified mail. Lentz acknowledged that he received the letter by fax, but he did not receive the letter by certified mail. Empire did not accept the offer or respond in any way to the prejudgment interest letter. In October 1998, English filed his initial petition against Empire. In his initial petition and subsequent amended petitions, English alleged that he was entitled to prejudgment interest.
At some point in the fall of 2001, Hershewe became aware of the possibility that the prejudgment interest letter had not been sent by certified mail. After searching his files, Hershewe could not find any documentation to prove the prejudgment interest letter had been sent by certified mail. On November 1, 2001, Hershewe met with English and his wife and advised them about the status of the prejudgment interest letter. According to Hershewe, he specifically discussed: (1) the implications of possibly losing prejudgment interest if the letter had not been sent by certified mail; (2) the risks of sending a second letter; (3) English's option of firing Hershewe and his firm and hiring a new attorney to represent him; and (4) the possibility that English may have a claim against him and the law firm for legal negligence. After discussing the various risks and options, English chose to retain Hershewe's representation, rely on the original prejudgment interest letter and not send a second letter.
In August 2003, Letters of Guardianship were issued for English. Rita Housman, Taney County Public Administrator, was appointed as his guardian and conservator. In January 2005, Davis succeeded Rita Housman and continues to represent English as his guardian and conservator. With respect to all matters relevant to this appeal mentioned hereinafter, English is acting by and through Davis.
In October 2005, English's case was tried to a jury. On October 18, 2005, the jury returned a verdict in English's favor for $4,000,000. At subsequent hearings held on October 31, 2005 and December 5, 2005, English argued he was entitled to prejudgment interest, although he was unable to produce evidence proving that the prejudgment interest letter had been sent by certified mail. On December 6, 2005, the trial court entered an amended judgment awarding English $3,800,000 and prejudgment interest of $2,433,353.42, which accrued from 60 days after August 28, 1998 when the original prejudgment interest letter was sent.2 Thereafter, Empire appealed. On April 23, 2007, this Court reversed the trial court's award of prejudgment interest, but left the underlying verdict and judgment intact. English v. Empire Dist. Elec. Co., Inc., 220 S.W.3d 849, 858 (Mo.App.2007).
The parties to the appeal were required to file any motions for rehearing or applications for transfer within 15 days after the date the opinion was filed. Rule 84.17(b); Rule 83.02. On May 9, 2007, English filed a motion for rehearing and an application for transfer to the Supreme Court of Missouri.3 The next day, Hershewe called Empire's counsel and asked whether Empire was going to file a motion for rehearing or application for transfer. Upon receiving a negative response, Hershewe said he would withdraw English's motion if he received a letter that same day from Empire's counsel confirming its intention not to file such a motion or application.4 Empire complied, and Hershewe withdrew the motion.
Thereafter, Empire began calculating the amount of post-judgment interest that had accrued to determine the total sum necessary to satisfy the judgment. In June 2007, English signed a "Settlement Statement" prepared by Hershewe authorizing the distribution of money anticipated from Empire, including $1,931,785.53 in attorney's fees to be paid to Defendants. In August 2007, English signed and filed a "Satisfaction of Judgment" acknowledging receipt of $4,311,085.31 (the amount specified in the amended judgment plus postjudgment interest) as full and final satisfaction of the judgment in English's case against Empire.
In February 2008, English filed suit against Defendants to recover damages based upon their alleged negligence. The first amended petition alleged that Defendants were negligent in the following ways:
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