Nelson v. Miller

• Decision Date: 01 March 1980
• Docket Number: No. 50187,50187
• Citation: Nelson v. Miller, 607 P.2d 438, 227 Kan. 271 (Kan. 1980)
• Parties: R. A. NELSON, M.D., Plaintiff-Appellant, v. Vern MILLER; Fred W. Phelps; Fred W. Phelps, Chartered; and Avram G. Adler, Marvin I. Barish, Robert C. Daniels, Marvin J. Levin, Arnold Levin, and Howard J. Creskoff, d/b/a Adler, Barish, Daniels, Levin and Creskoff, a partnership; Defendants-Appellees.
• Court: Kansas Supreme Court

Page 438

607 P.2d 438

227 Kan. 271

R. A. NELSON, M.D., Plaintiff-Appellant, v.Vern MILLER; Fred W. Phelps; Fred W. Phelps, Chartered; and Avram G. Adler, Marvin I. Barish, Robert C. Daniels, Marvin J. Levin, Arnold Levin, and Howard J. Creskoff, d/b/a Adler Barish, Daniels, Levin and Creskoff, a partnershipDefendants-Appellees.

No. 50187.

Supreme Court of Kansas.

March 1, 1980.

Syllabus by the Court

1.The general principles of law to be followed in determining liability in an action for wrongful use of civil proceedings, commonly known as malicious prosecution of a civil action, are reviewed and applied.

2.An attorney may be held liable in damages for wrongful use of civil proceedings where he initiates or continues an action for his client without probable cause and primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.

3.In determining probable cause in a malicious prosecution action brought against an attorney, a jury may properly consider not only those facts disclosed to counsel by the client but also those facts which could have been learned by a diligent effort on the attorney's part.

4.An attorney cannot be held liable for the consequence of his professional negligence to his client's adversary.The remedy provided a third-party adversary is solely through an action for malicious prosecution of a civil action.

Jerry K. Levy, of Levy, Ambrosio & McDowell, Topeka, argued the cause and was on the brief for appellant.

Fred W. Phelps, Jr., of Fred W. Phelps, Chartered, Topeka, argued the cause and was on the brief for appelleeFred W. Phelps.

J. H. Eschmann, of Ascough, Bausch & Eschmann, Topeka, argued the cause, and John A. Bausch, Topeka, with him on the brief for appelleeVern Miller.

Charles L. Davis, Jr., of Davis, Unrein & Hummer, Topeka, argued the cause and was on the brief for appellees Adler, Barish, Daniels, Levin, and Creskoff.

PRAGER, Justice:

This is an action brought by a Wichita physician against several attorneys seeking to recover damages for the wrongful use of civil proceedings, commonly described as an action for malicious prosecution of a civil action.This action was the result of a prior civil malpractice action filed on April 1, 1976, in the district court of Sedgwick County.That action was case No. D-36 241, entitled Van Nover, et al. v. Wesley Medical Center, et al.R. A. Nelson, M.D. was one of several doctors named as defendants in that suit.The petition in that case was filed by the defendants, Vern Miller, Fred Phelps, Chartered, and Adler, Barish, Daniels, Levin, and Creskoff, a law firm of Philadelphia, Pennsylvania, as attorneys for the plaintiffs.

The medical malpractice petition alleged in substance that the Van Novers had been damaged by negligent treatment afforded Debbie Van Nover by the defendants, including R. A. Nelson.Specifically, it was alleged that Debbie Van Nover, while pregnant with her son, Christopher, was surgically treated by the physicians in the performance of a Dilation and Curettage (D & C) upon her uterus without a prior examination for pregnancy.It was alleged that as a result the undetected fetus (Christopher) was injured.It was also contended that the decision to deliver Christopher Van Nover by Caesarian section was premature, and, therefore, constituted negligence on the part of the treating physicians.In that action, the Van Novers claimed damages against Wesley Medical Center and the five physicians in the amount of $5,000,000 actual damages and $10,000,000 punitive damages.On October 10, 1977, the malpractice action was dismissed without prejudice as to defendant Dr. Nelson.In the order of dismissal, counsel stipulated that if, after further discovery and for good cause the plaintiffs would seek to rejoin Dr. R. A. Nelson, M.D. as a defendant in the case, the bar of the statute of limitations (K.S.A. 60-518) would not be raised against such rejoinder if made more than six months from the entry of the order of dismissal.Thereafter, extensive discovery was conducted by counsel for the remaining parties in the case.On April 18, 1978, summary judgment was granted in favor of all of the remaining defendants on their motion.The trial judge found that the actions of the defendants, upon which the Van Novers had based their claims, dealt only with questions of medical judgment, thereby precluding liability for negligence.That summary judgment was later appealed to the Kansas Court of Appeals, and was affirmed in an unpublished opinion filed June 29, 1979.A petition for review was thereafter denied.

Following the entry of summary judgment in the medical malpractice action, Dr. Nelson filed his action in the district court of Shawnee County against these defendants who were the attorneys of record for plaintiffs in the prior action.In his amended petition filed May 9, 1978, Dr. Nelson set forth two separate claims.The first claim sought recovery of damages from the attorneys on the theory of malicious prosecution of a civil action.The second claim sought recovery of damages on a theory of simple negligence.Counsel for Dr. Nelson commenced the discovery process in this case by filing requests for admissions, interrogatories, and requests for the production of documents.All of this discovery was opposed by defendants and was never answered by defendants.Thereafter, all of the defendant attorneys filed motions to dismiss pursuant to K.S.A. 60-212(b )(6).On June 5, 1978, the district judge sustained the motions to dismiss Dr. Nelson's claims.This appeal was taken by Dr. Nelson, seeking to overturn the dismissal of his claims against the various defendant attorneys.

In dismissing the plaintiff's claim, the district court had before it a rather scanty record consisting solely of four documents.First was the plaintiff's amended petition filed in this case.In the first claim of the amended petition, Dr. Nelson alleged in substance that he is a practicing physician living in Wichita and that each of the defendants are attorneys at law.He further alleged that on April 1, 1976, the defendants, as attorneys, caused a petition to be filed in the district court of Sedgwick County on behalf of the plaintiffs, Van Novers, and that R. A. Nelson, M.D., was one of the defendants in that cause.Because an issue has been raised as to the sufficiency of the allegations of the petition, certain paragraphs of the plaintiff's first claim will be set forth verbatim:

"IV.In the aforementioned petition, the plaintiff was sued for five million dollars actual damages and ten million dollars punitive damages.It was further alleged that the plaintiff was guilty of negligence, gross and wanton negligence and recklessness in his medical treatment of Christopher Allen Van Nover.Said allegation was and is false.

"V.It was further alleged in the aforementioned petition that the plaintiff caused severe, permanent and progressive worsening brain damage to Christopher Allen Van Nover.Said allegation was and is false.

"VI.It was further alleged in the aforementioned petition that plaintiff caused Christopher Allen Van Nover a lifetime of shame, embarrassment and indignity.Said allegation was and is false.

"VII.At the time the aforementioned petition was filed it was known or should have been known by defendants that all of the allegations made against the plaintiff were false.

"VIII.The defendants instituted the medical malpractice proceeding against this plaintiff without probable cause, and with malice.

"IX.The defendants continued to prosecute the action against this plaintiff without probable cause, and with malice.

"X.The action brought and prosecuted by the defendants, jointly and separately, against this plaintiff, terminated in favor of the plaintiff on the 10th day of October, 1977.

"XI.As a direct result of the malice of the defendants, jointly and separately, the plaintiff has been damaged.

"Wherefore plaintiff prays for judgment against the defendants in an amount in excess of ten thousand dollars ($10,000)."

In his second claim the plaintiff, Nelson, incorporated by reference all of the allegations of his first claim and then proceeded to allege as follows:

"II.Before filing the aforementioned petition against this plaintiff, defendants negligently failed to investigate the claim.Said negligence was a departure from standard approved legal practice.

"III.Defendants continued to prosecute a claim against this plaintiff with full knowledge that the claim against this plaintiff was unjust and totally without merit.Such action was negligent and a departure from standard approved legal practice.

"IV.Filing and continued prosecution of an unjust and meritless claim by the defendants against this plaintiff was done with the knowledge that it would cause and was causing damages to the plaintiff.

"V.As a direct result of the negligence and departure from standard approved legal practice of the defendants, the plaintiff has been damaged.

"Wherefore plaintiff prays for judgment against the defendants in an amount in excess of ten thousand dollars ($10,000)."

At the time the district court dismissed Dr. Nelson's claims it also had before it the petition filed in the Sedgwick County malpractice case and the order dismissing the case without prejudice as against Dr. Nelson, dated October 10, 1977.The only other evidentiary matter before the district court at the time was the memorandum decision in the Sedgwick County malpractice action granting summary judgment in favor of the remaining defendants.In that memorandum decision, Judge Paul L. Thomas of the Sedgwick Countydistrict court noted that the only negligent act indicated by discovery on the part of any defendant was the performance of a premature Caesarian section and that nothing in the testimony of the witnesses connected the defendant Nelson to any of the plaintiffs'...