McGlone v. Lacey

• Decision Date: 12 September 1968
• Docket Number: Civ. No. 68-34S.
• Citation: McGlone v. Lacey, 288 F.Supp. 662 (D. S.D. 1968)
• Parties: Margaret McGLONE, plaintiff, v. Charles LACEY, Defendant.
• Court: U.S. District Court — District of South Dakota

288 F. Supp. 662

Margaret McGLONE, plaintiff, v.Charles LACEY, Defendant.

Civ. No. 68-34S.

United States District Court D. South Dakota, S. D.

September 12, 1968.

Richard Braithwaite, of Braithwaite, Cadwell & Braithwaite, Sioux Falls, S. D., appeared in behalf of the plaintiff.

John B. Shultz, Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., appeared in behalf of the defendant.

MEMORANDUM DECISION

NICHOL, Chief Judge.

This is a diversity action brought by Margaret McGlone, a Missouri citizen, against Charles Lacey, a South Dakota citizen and an attorney at law, for negligently letting the statute of limitations run on a personal injury suit, which she claimed to have authorized the defendant to handle on her behalf.The cause comes before this court on the defendant's motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.The defendant claims that there was no contractual relationship, either express or implied, or attorney/client relationship that existed as between the plaintiff and the defendant at the time that the statute of limitations ran on Mrs. McGlone's personal injury claim.

From the affidavits submitted by both parties, it is apparent that the basic facts out of which this motion developed are uncontroverted, the only question remaining being that of the existence of a contractual relationship existing between the parties.On May 8, 1964, plaintiff was injured in a fall on premises owned by a Mr. and Mrs. William Chambley, from which fall she sustained permanent injuries and incurred medical and hospital expenses as well as expenses for household help and medical services for the rest of her life.On or about February 21, 1967, plaintiff sent to the defendant an authorization authorizing the defendant to represent the plaintiff in the personal injury claim on a contingent fee basis, which document is signed by the plaintiff.This authorization was accompanied by a letter to defendant signed by plaintiff's daughter, Margaret M. Austin, in which the daughter relates information pertinent to her mother's personal injury claim and requests the defendant to "see what, if anything, can be done to bring this matter to some conclusion (favorable to Mrs. McGlone, if possible) as soon as possible."

On March 1, 1967, the joint letters of Mrs. McGlone and Mrs. Austin were answered by the defendant Lacey's partner, Mr. Parliman.Mr. Parliman's letter reads in full: "Mr. Lacey is in the Legislature, and will return in the middle of March, at which time, he will contact you."A copy of this letter was sent to Mr. Lacey upon which he wrote the word "fine" and returned the copy to Mr. Parliman.

The next correspondence between the parties occurred on May 11, 1967, when Mrs. McGlone wrote to Mr. Lacey stating: "I have heard nothing from you with regard to this matter to date and am, naturally, very anxious to have some word from you at this time."This letter was answered by Mr. Lacey on May 17, 1967.At that time Mr. Lacey informed Mrs. McGlone that "he was shocked to learn that the statute of limitations ran against your claim May 8, 1967."Mr. Lacey's letter also states in part:

On March 1, 1967, my associate advised you that I would return from the Legislature the middle of March, at which time "he will contact you."The papers, with many others, were placed upon my desk on March 13, 1967, upon my return.I immediately became very heavily involved in several matters of pending litigation and it so happens that by then I had completely forgotten the nearness of the deadline, if I had ever been aware of it.In cleaning up my work I did handle the file once or twice, but this single matter I did not get to.* * * I did not check with other attorneys who returned the file to you, because it is not my practice to rely upon the decisions of others in such matters.

The liability of the defendant Lacey to the plaintiff McGlone would seem to rest entirely upon the fact of whether or not there was an employment contract between the two, or whether an attorney/client relationship existed as between them.Upon the court's request, counsel for both parties filed briefs upon the question of whether any legal duty existed which would require the defendant to inform the plaintiff of the running of the statute of limitations upon her claim should he decide not to accept the employment.It should be pointed out that counsel for neither party were able to cite authority imposing such duty.

To substantiate his claim that no attorney/client relationship existed between himself and the plaintiff, defendant submitted an affidavit signed by himself and his partner beforementioned, Mr. Parliman, which stated that at no time did the defendant accept a retainer, nor was anything done in an effort to prosecute the plaintiff's claim.The affidavit further states that no fee has been paid by the plaintiff.The defendant cites in part, 7 Am.Jur.2d, Attorneys at Law, Paragraph 91:

"The authority of an attorney begins with his retainer; but the relation of attorney and client is not dependent on the payment of a fee, nor is a formal contract necessary to create this relationship.The contract may be implied from conduct of the parties.The employment is sufficiently established when it is shown that the advice and assistance of the attorney are sought and received in matters pertinent to his profession."(Emphasis supplied)

There is no doubt that Mr. Lacey's services were sought, but there is no evidence that they were ever received.There is no disagreement between the parties that South Dakota law would apply to the case.¹

Assuming the fact that both parties were capable of entering into contractual relationships, the only question remaining is the determination of Mr. Lacey's conduct to discover whether or...