Gerhardt v. Harris
| Decision Date | 14 March 1997 |
| Docket Number | No. 73863,73863 |
| Citation | 261 Kan. 1007,934 P.2d 976 |
| Parties | Debbie GERHARDT, Appellant, v. Kevin C. HARRIS, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action arising from a fee dispute between an attorney and a client, with the client seeking to enforce an oral contract resulting from an alleged agreement to be bound by the decision of a local bar association fee dispute committee, the record is reviewed and it is held: (1) Testimony of the deputy disciplinary administrator was not excluded by Rule 223 (1996 Kan.Ct.R.Annot. 242) (immunity in the course of disciplinary proceedings); (2) summary judgment for the defendant attorney on the plaintiff client's claim of negligent misrepresentation is affirmed; and (3) summary judgment for the defendant on plaintiff's claims of fraud, breach of oral contract, fraud by silence, and tortious interference is reversed, and the case is remanded.
R. Todd Wilhelmus, Mission, argued the cause, and was on the brief, for appellant.
James C. Trickey, Overland Park, argued the cause, and was on the brief, for appellee.
This case concerns a dispute over an attorney fee. Our Rule 223 (1996 Kan.Ct.R.Annot. 242) concerning immunity arising from involvement in disciplinary proceedings is discussed and construed.
Plaintiff, Debbie Gerhardt, appealed the summary judgment dismissing her claims against her former attorney, defendant Kevin C. Harris. The district court granted Harris' motion in limine barring testimony of Stanton Hazlett, Chief Deputy Disciplinary Administrator, and denied Gerhardt's motion to amend her petition. Hazlett was to testify that Harris and Gerhardt agreed to resolve their fee dispute by submitting it to the Johnson County Bar Association Fee Dispute Committee (the committee) and to be bound by the decision. . The district court, relying on Rule 223, barred Hazlett's testimony because it arose from a disciplinary matter. The Court of Appeals affirmed in an unpublished opinion filed on June 14, 1996. We granted Gerhardt's petition for review. Our jurisdiction is under K.S.A. 20-3018(b).
The issues for review are: Did the district court err in (1) granting Harris' motion in limine to bar the testimony of Hazlett under Rule 223; and (2) granting Harris' motion for summary judgment and dismissing Gerhardt's claims for fraud, negligent misrepresentation, breach of oral contract, fraud by silence, and tortious interference with prospective economic advantage?
Our review of the record and of the parties' contentions convinces us that summary judgment was not the proper procedural vehicle for resolving all but the negligent misrepresentation claim. See K.S.A. 60-256 and Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993) ().
We affirm the Court of Appeals and the district court on summary judgment against Gerhardt on her negligent misrepresentation claim. We reverse the Court of Appeals and the district court and remand the case to the district court on all other issues.
On July 8, 1991, Gerhardt retained Harris to represent her in a personal injury claim arising out of an automobile accident. Gerhardt and Harris signed a contingency fee contract which provided that Harris was to receive 40% of any recovery. In November 1991 and again in December 1991, Gerhardt wrote to Harris terminating his services.
Gerhardt attempted to receive payment for lost wages and medical expenses in late 1991 and early 1992 from American Family Insurance Gerhardt wrote a letter to the Disciplinary Administrator complaining of Harris' conduct. Hazlett had several conversations with Harris as a result of the disciplinary complaint. At Hazlett's suggestion, Harris and Gerhardt agreed to submit their dispute to the committee. Harris wrote a confirming letter dated February 24, 1993, to Carrie Huffman of American Family. The February 24, 1993, letter said:
Company (American Family), the insurer on the personal injury claim. American Family refused to negotiate with her because Harris had filed an attorney's lien. After Harris informed [261 Kan. 1009] American Family he had been terminated, Gerhardt negotiated a settlement for the $25,000 policy limit.
Harris agreed to release his lien if American Family issued a check in the amount of $4,000 made payable to both Gerhardt and Harris to be deposited in Harris' trust account, pending the committee's decision. Harris received the $4,000 check and deposited it in his trust account.
The committee divided the $4,000, awarding Gerhardt $3,094 and Harris $906.
Harris refused to abide by the committee's decision, contending that he never intended to be bound. Gerhardt, acting pro se, sued Harris for his failure to follow the committee's decision. Gerhardt later obtained counsel, who amended her petition to allege negligent misrepresentation, fraudulent misrepresentation, and breach of an oral agreement. Before trial, the districtcourt denied Gerhardt's motion to amend to add claims for fraud by silence and tortious interference, and granted summary judgment for Harris on all claims. The district court also determined that Hazlett's testimony was not admissible under Rule 223 because it arose from a disciplinary matter.
In an unpublished decision, the Court of Appeals determined that the district court: (1) did not err in its Rule 223 analysis excluding Hazlett's testimony; and (2) properly (a) granted summary judgment to defendant on the fraud and breach of contract claims because of a failure of proof (Hazlett's testimony being excluded); (b) granted summary judgment to defendant on the negligent misrepresentation claim; and (c) denied Gerhardt's motion to amend her petition. Harris' cross-appeal also was denied. (Harris had cross-appealed the denial of his motions to dismiss Gerhardt's appeal and for costs and sanctions.) The case was remanded for consideration of Gerhardt's motion for new trial.
and the Motion in Limine
Harris, in his motion in limine, advanced Rule 223 and Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23 (1992) ( Rule 223), as grounds for excluding Hazlett's testimony. The district court and the Court of Appeals agreed. We reverse. Interpretation of Rule 223 is a question of law. Our review of questions of law is unlimited. Calwell v. Hassan, 260 Kan. 769, 778, 925 P.2d 422 (1996). Although abuse of discretion is the standard of review applicable to motions in limine, see State v. Rowell, 256 Kan. 200, Syl. p 2, 883 P.2d 1184 (1994), when the district court's ruling hinges on an interpretation of our rule, we exercise an independent appellate determination. See State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995).
Hazlett first became involved after Gerhardt filed an April 8, 1992, complaint with the Disciplinary Administrator. According to Gerhardt, Harris was unwilling to communicate with her or release his attorney's lien on any settlement proceeds after she had terminated his representation in her personal injury claim. Hazlett's affidavit stated that in February 1993, he suggested toHarris, as a way to resolve the dispute between Harris and Gerhardt, that a check from American Family for $4,000 be made payable to both Harris and Gerhardt. After Gerhardt's endorsement, the check would be deposited in Harris' trust account. The dispute over the $4,000 would be submitted to the committee, and the parties would follow the committee's decision. Gerhardt would receive a separate check from American Family for the balance of the settlement proceeds. Harris agreed to this procedure, as did Gerhardt. Hazlett's affidavit had attached Harris' February 24, 1993, letter to Huffman. Although the letter differed in some details from the procedure Hazlett described, it did include Harris' agreement to the deposit of $4,000 into Harris' trust account "pending a decision as to my appropriate fee by the Johnson County Bar Fee Dispute Committee or waiver by Ms. Gerhardt." (Emphasis added.) Harris sent the letter to Huffman because American Family insisted upon receiving something in writing from Harris setting forth his agreement to the settlement procedure before disbursing any funds.
In Jarvis, 250 Kan. 645, 830 P.2d 23, we affirmed dismissal of attorney Jarvis' action for malicious prosecution, libel, and tortious interference with a contract against Drake (the ex-husband of Jarvis' client), stemming from Drake's filing of a disciplinary complaint against Jarvis. The disciplinary complaint had been dismissed for lack of probable cause. The district court granted Drake's motion for summary judgment on the ground that Drake was immune from suit under Rule 223. We determined Rule 223 was not ambiguous, providing Drake absolute immunity. 250 Kan. at 651, 830 P.2d 23. We also found Rule 223 constitutional. 250 Kan. at 653, 830 P.2d 23.
Rule 223 provides:
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