Knight v. Myers, 60257
| Decision Date | 07 January 1988 |
| Docket Number | No. 60257,60257 |
| Citation | 12 Kan.App.2d 469,748 P.2d 896 |
| Parties | Norman L. KNIGHT and Rebecca Knight, Appellants, v. Douglas B. MYERS, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Depending upon the facts and circumstances of each case, at least four theories can apply in Kansas when determining the accrual of a cause of action for legal malpractice: (1) the occurrence rule, (2) the damage rule, (3) the discovery rule, and (4) the continuous representation rule. Pancake House, Inc. v. Redmond, 239 Kan. 83, 716 P.2d 575 (1986).
2. A cause of action for legal malpractice accrues at the point in time at which plaintiff could first have filed and prosecuted an action to a successful conclusion.
3. K.S.A. 60-513 provides that a cause of action based on tort accrues when substantial injury occurs unless the injury was not reasonably ascertainable until sometime after the negligent act occurs. When substantial injury is not immediately ascertainable, the cause of action accrues when the injury becomes "reasonably ascertainable."
4. An injury is reasonably ascertainable when the plaintiff knew, or could reasonably have been expected to know, of the alleged negligence.
5. When ruling on a motion for summary judgment, it is not the trial court's duty to seek out the record. Rather, counsel is required to designate the portions of the record which support that party's position. In opposing a motion for summary judgment, a party must come forward with something of evidentiary value to establish a material dispute of fact.
6. If sued by a former client in a legal malpractice action, an attorney cannot be held liable for failing to file an action prior to the expiration of the statute of limitations if the attorney ceased to represent the client and was replaced by other counsel before the statute ran on the client's action.
Lelyn J. Braun, of Lelyn J. Braun, Chartered, Garden City, for appellants.
Amy S. Lemley, of Foulston, Siefkin, Powers & Eberhardt, Wichita, for appellee.
Before BRAZIL, P.J., SIX, J., and JACK L. BURR, District Judge, assigned.
Plaintiff appellants, Norman and Rebecca Knight (the Knights), appeal the trial court's decision sustaining appellee Douglas B. Myers' motion for summary judgment. The trial court held plaintiffs' malpractice claims against attorney Myers were barred by the statute of limitations. This court finds no error and affirms.
The issues are: (1) When the Knights' alleged action for legal malpractice accrued; and (2) whether the trial court erred in granting summary judgment for defendant Myers.
In July 1980, the Austin Pool Company (Austin) installed a swimming pool in the back yard of appellants, Norman and Rebecca Knight. Austin ran a discharge hose from the pool onto property owned by Donald and Lucille Laukala and water from the pool drained onto the Laukala property. Donald Laukala's parents, Mr. and Mrs. Nestor Laukala (the senior Laukalas), lived on this property.
On July 2, 1981, Donald Laukala filed a nuisance action against the Knights due to the water from the swimming pool draining onto his property. The Knights prepared numerous pro se pleadings in response to Laukala's nuisance action, including a motion for summary judgment, a motion for a restraining order, a motion to make Donald Laukala's parents co-plaintiffs, an answer, a pleading entitled "lis pendens," and a pleading entitled "countersuit."
Throughout the briefs and in the record the Knights' claim against the senior Laukalas is referred to as a "counterclaim" or "countersuit." During oral argument, counsel agreed that the pro se pleadings attempted to state either a separate claim or a third-party claim.
In their "countersuit," the Knights alleged that the senior Laukalas laughed and swore at the Knights, chipped the Knights' driveway, built an "illegal fence," and tried to destroy the Knights' van. The Knights also included in this pleading a malicious prosecution claim against Glenn Kerbs, the attorney representing Donald and Lucille Laukala in the nuisance lawsuit filed against the Knights.
Personnel of the clerk of the district court would not, for some unexplained reason, accept the Knights' pro se pleadings. On July 10, 1981, the Knights hired attorney Myers to represent them in the Laukala case.
Myers filed an amended answer and a request for a specified amount of money damages on July 14, 1981. On July 20, 1981, Myers sent a letter to Norman Knight attempting to clarify the terms of his employment. The letter reads as follows:
Mr. Knight received and read this letter. Mr. Knight testified that he discussed this matter with Myers and instructed him to proceed with an action against Austin and against the senior Laukalas. On August 13, 1981, Myers filed a action against Austin on behalf of the Knights.
On December 1, 1981, Myers sent a letter to Mr. Knight, informing him that Myers was terminating his employment relationship with the Knights. On December 14, 1981, Myers formally withdrew from the case involving the Laukalas and the case involving Austin.
The pretrial conference in the Laukala case was held on January 8, 1982, and at that time the Knights had hired attorney Barry Gunderson to represent them in the Laukala case and in the Austin Pool Company case. After the pretrial conference in the Laukala case, Mr. Knight wrote a letter to T.J. Carney, the attorney provided by their homeowners' insurance to defend them.
A copy of this letter was filed in the district court's file in the Laukala case.
Knight testified that on the date of this letter, he knew that Myers had not properly served the Laukalas and that Myers had not pursued the countersuit against the Laukalas.
Defendant Gunderson took the Knights' case against Austin Pool Company to trial and recovered a judgment of $1,000.00. Gunderson formally withdrew from representing the Knights on April 6, 1983. As of June 1, 1983, when the Knights re-filed their action against the Laukalas, they knew that Gunderson had never followed up with any service on the Knights' suit against the Laukalas.
Sometime between June 1, 1983, and December 19, 1983, Lelyn Braun, the Knights' present attorney, began representing the Knights in their suit against the Laukalas. Apparently the suit was dismissed on May 21, 1984, on the basis that it was barred by the statute of limitations. However, in their appellate brief, the Knights assert that the ruling dismissing their claim against the Laukalas was filed December 19, 1984.
The Knights filed their legal malpractice action against defendant Myers on August 29, 1985.
Myers filed a motion for summary judgment on September 11, 1986, alleging that the Knights' claims against him were barred by the statute of limitations. The trial court granted the motion and plaintiffs appeal.
Against defendant Myers, their former attorney, the Knights made both contract and tort claims. The Knights claimed (1) Myers failed to file a counterclaim, and (2) Myers was negligent in failing to file that claim and in failing to issue summons on pro se pleadings prepared by the Knights. On appeal, the Knights state that "[a]s the pleadings in this case reflect, this action is brought in tort and is one limited to two years." The Knights have waived their contract claim and are only pursuing their tort claim on appeal.
Because the Knights' action is in tort, the controlling statute of limitations is K.S.A. 60-513.
K.S.A. 60-513(b) specifically states that a tort action accrues either at the time at which (1) the act giving rise to the cause of action first causes substantial injury, or (2) if the fact of the injury is not reasonably ascertainable, the time at which the injury does become reasonably ascertainable to...
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