Lange v. Marshall

• Citation: 622 S.W.2d 237
• Decision Date: 16 June 1981
• Docket Number: No. 41734,41734
• Parties: Elizabeth P. LANGE, Plaintiff-Respondent, v. Richard M. MARSHALL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 237

622 S.W.2d 237

Elizabeth P. LANGE, Plaintiff-Respondent, v. Richard M. MARSHALL, Defendant-Appellant.

No. 41734.

Missouri Court of Appeals, Eastern District, Division Four.

June 16, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Application to Transfer Denied Nov. 10, 1981.

John J. Horgan, St. Louis, for defendant-appellant.

J. B. Carter, Clayton, for plaintiff-respondent.

SMITH, Judge.

Defendant appeals from a judgment based upon a jury verdict against him in the amount of $74,000. Plaintiff's action was based upon the alleged negligence of defendant as a lawyer in his representation of her in the dissolution of her marriage.

Defendant was a close personal friend of plaintiff and her former husband, Ralph Lange. When the couple reached a decision to terminate their twenty-five year old marriage, each separately approached defendant. He advised each that he would not represent one against the other, but that if they could agree on the terms of their dissolution, he would represent them jointly and prepare the necessary papers to effectuate the dissolution. Plaintiff, ill with lupus eryethemathosis, had herself admitted to the psychiatric ward of a hospital because of depression arising from her marital problems. During this admission she and her husband discussed the terms of the dissolution. A conference was held at the hospital with plaintiff, her husband, and defendant present. At that time the terms of a settlement stipulation were agreed to and subsequently put into final form by defendant. The stipulation and joint petition for dissolution were signed the day plaintiff left the hospital, three days after the hospital conference. The documents were filed the next day and the petition for dissolution was heard by a circuit judge four days later. The judge took the matter under submission and stated that he would not enter a judgment for thirty days. Within that period plaintiff had second thoughts about the settlement provisions of the stipulation and sought legal counsel. ¹ The husband also sought legal counsel and defendant withdrew from the case and from any further discussions with the parties concerning it. Upon motion the matter was taken off submission, and 10 months later, following considerable discovery, was disposed of by a settlement more favorable to plaintiff. The degree to which the settlement was more favorable is strongly disputed by the parties plaintiff contending it was substantially more favorable, defendant that it was slightly better. The record does not support a conclusion either way.

Plaintiff's charges of negligence were that defendant failed to (1) inquire as to the financial state of Ralph Lange and advise plaintiff; (2) negotiate for a better settlement for plaintiff; (3) advise plaintiff she would get a better settlement if she litigated the matter; and (4) fully and fairly disclose to plaintiff her rights as to marital property, custody and maintenance. Defendant admitted that he did none of these things and contended that he had no duty to do them. He asserted that because he undertook to represent the parties as a mediator, a status disclosed fully to both parties, that he felt it would be improper for him to do any of the four things claimed to be negligence as it would place him in the position of an advocate for one party or the other. ² We need not resolve the exact nature of defendant's status nor the duties which that status imposed upon him. For purposes of this opinion we will assume that defendant's status imposed upon him one or more of the claimed duties and that he breached that or those duties.

Accepting therefore the proposition of defendant's negligence we are unable to find that plaintiff sustained any damage as a proximate result of that negligence. Negligence alone does not warrant a recovery for plaintiff. There must also be damage proximately resulting therefrom. Mitchell v. Transamerica Ins. Co., 551 S.W.2d 586 (Ky.App.1977) (2). While the question of proximate cause is usually for the jury, in rare cases and under clear and compelling circumstances, the question becomes one of law for the court. Carter v. Boys Club of Greater Kansas City, 552 S.W.2d 327 (Mo.App.1977) (4-6). Where the evidence connecting the injury to the negligence amounts to mere conjecture and speculation the court must not allow the case to be submitted to the jury and a contention that the evidence did not make a submissible case should be sustained. Pizzurro v. First North County Bank and Trust Co., 545 S.W.2d 348 (Mo.App.1976) (3-5). It is plaintiff's burden to establish that the negligence of defendant proximately resulted in damages to her. National Hollow Brake Beam Co. v. Bakewell, 224 Mo. 203, 123 S.W. 561 (1909); Gabbert v. Evans, 184 Mo.App. 283, 166 S.W. 635 (1914) (10-12); Roehl v. Ralph, 84 S.W.2d 405 (Mo.App.1935) (2, 3); Underwood v. Woods, 406 F.2d 910 (8 Cir. 1969); Mathein v. Seawell, 199 F.2d 953 (4 Cir. 1952); Mitchell v. Transamerica Ins. Co., supra; Becher v. Julien, Blitz & Schlesinger, P. C., 95 Misc.2d 64, 406 N.Y.S.2d 412 (N.Y.Sup.1977) (2, 3).

Plaintiff's claimed damages were for 10 months lost maintenance payments (which Ralph Lange discontinued after plai...