Roberts v. Sokol

• Citation: 330 S.W.3d 576
• Decision Date: 06 January 2011
• Docket Number: No. SD 30263.,SD 30263.
• Court: Court of Appeal of Missouri (US)
• Parties: Becky ROBERTS and Ronald Roberts, Appellants,v.Ronald SOKOL, Aaron Sachs, and Aaron Wm. Sachs & Associates, P.C., Respondents.

330 S.W.3d 576

Becky ROBERTS and Ronald Roberts, Appellants,

v.Ronald SOKOL, Aaron Sachs, and Aaron Wm. Sachs & Associates, P.C., Respondents.

No. SD 30263.

Missouri Court of Appeals, Southern District, Division One.

Jan. 6, 2011.Motion for Rehearing or Transfer Denied Jan. 31, 2011.Application for Transfer

Denied March 1, 2011.

Fred. J. Spigarelli, The Spigarelli Law Firm, Pittsburg, KS, for appellants.Ron Mitchell, Phillip D. Greathouse, Blanchard, Robertson, Mitchell & Carter, P.C., Joplin, for respondents.ROBERT S. BARNEY, Presiding Judge.

Becky Roberts (“Mrs. Roberts”) and Ronald Roberts (“Mr. Roberts”) (collectively “Plaintiffs”) appeal the trial court's grant of summary judgment in favor of Ronald Sokol (“Attorney Sokol”), Aaron Sachs (“Attorney Sachs”), and Aaron Wm. Sachs & Associates, P.C. (“the law firm”) (collectively “Defendants”) on Plaintiffs' “Petition in Damages” (“Petition”) which was based on claims of legal malpractice against Defendants. Plaintiffs posit three points of trial court error. We affirm in part, reverse in part, and remand for further proceedings.

The record reveals that Mrs. Roberts was a passenger in a vehicle operated by Kelley Nabors (“Ms. Nabors”) when that vehicle was involved in a collision with a vehicle operated by Denise Patterson (“Ms. Patterson”), an employee of Shelter Mutual Insurance Company (“Shelter”), who was acting within the course and scope of her employment at the time of the accident. Mrs. Roberts suffered a number of injuries as a result of the accident and Plaintiffs employed Defendants' law firm to represent them in an action against Ms. Nabors, Ms. Patterson, and Shelter. The petition in the underlying case was filed on March 3, 2003, and an amended petition was filed on June 19, 2003.

During trial preparation, Mrs. Roberts' medical records were obtained and Attorney Sokol felt the medical records contained information “that [was] positive for [the] case and negative for [the] case.” Defendants also had Mrs. Roberts evaluated by Dr. Michael Whetstone (“Dr.Whetstone”), a neuropsychologist, in preparation for Dr. Whetstone's trial testimony relating to her injuries and medical status.

A trial on the underlying matter was held on November 1, 2004. At trial, it appears that Ms. Nabors, Ms. Patterson and Shelter disputed liability as well as the nature and extent of Mrs. Roberts' injuries. As for the issue of liability, there was eyewitness testimony from two witnesses that it was Ms. Patterson who had the right-of-way at the time of the accident, and there was conflicting testimony between Mrs. Roberts' trial testimony and her prior deposition testimony on several issues. On the matter of Mrs. Roberts' injuries and the amount of her damages, there was no live testimony offered by Mrs. Roberts' treating physicians and, instead, Dr. Whetstone testified about her medical issues based on his evaluation and review of her medical records. Additionally, many of her medical bills offered at trial in support of the issue of damages were rejected by the trial court. No other expert testimony or lay witness testimony was offered on Plaintiffs' behalf by Defendants.

At the conclusion of all the evidence, the jury found Ms. Nabors was one hundred percent at fault for the accident; ¹ awarded Mrs. Roberts $156,000.00 in damages; and ruled against Mr. Roberts on his loss of consortium claim. Defendants filed several post-trial motions on Plaintiffs' behalf; however, all of these motions were overruled. Following the denial of these motions but prior to the filing of an appeal by Plaintiffs, Farm Bureau (Ms. Nabors and her husband's automobile insurance carrier), offered to settle with Plaintiffs for $96,927.64, and this offer was accepted by Plaintiffs after consulting with independent counsel.

Plaintiffs subsequently filed the present Petition against Defendants on December 14, 2005, in which they asserted a claim in their first count for “Gross and Wanton Negligence” in handling Mrs. Roberts' case and in their second count, a claim for failure to properly pursue the “Consortium Claim” of Mr. Roberts. In particular, the petition asserted the following grounds for their claims of legal malpractice against Defendants, to-wit, that Attorney Sokol 1) failed to “prepare” Plaintiffs for their trial testimony; 2) failed to provide medical testimony that Mrs. Roberts' medical bills were for treatment that was necessary and reasonable and related to the accident at issue leading to their exclusion by the trial court; 3) failed “to present testimony from [Mrs.] Roberts' treating physicians with regard to her injuries, causation, medical treatment, and past and future medical bills;” 4) failed to “present testimony from any liability expert with regard to the speed of the vehicles, drivers' reaction time, point of impact, or the cause of the collision ...;” 5) failed to present testimony from lay witnesses to support Plaintiffs' “character and claims;” 6) failed “to present a vocational rehabilitation expert [or] an economist to prove [Mrs. Roberts'] future economic losses;” 7) failed to present testimony or records from Mrs. Roberts' employer in order to “verify her loss of earnings” and her “quality” of work; 8) failed to “put on evidence of the loss of household services of [Mrs. Roberts];” and 9) “allowed incorrect jury instructions and a verdict form to be used[,] failed to object to the use of these instructions and verdict form[,] and failed to make a motion for a new trial on these grounds.”

On June 24, 2009, following the filing of Defendants' answer and the subsequent disposition of several pending motions, Defendants filed their motion for summary judgment. In it, Defendants asserted that uncontroverted facts established that Plaintiffs' claims involved issues of “trial strategy or good faith errors in judgment, which do not support a claim for attorney negligence under Missouri law,” and that Plaintiffs could not establish that the alleged acts or omissions of Defendants were the proximate cause of any damages, because Plaintiffs had settled the underlying case, thereby depriving “[Defendants] of a final adjudication and vindication of their judgments and strategy.”

In their motion for summary judgment, Defendants set out the following uncontroverted facts: 1) Attorney Sokol prepared Mrs. Roberts “for trial shortly before it began and had lunch with her on the first day of trial to talk about her testimony” and that Mrs. Roberts testified in her deposition that “although she doesn't remember being prepared for trial, it may have happened;” 2) prior to trial, Attorney Sokol believed Mrs. Roberts' medical records were subject to an agreement with opposing counsel “to allow the bills into evidence at trial without the need for calling records custodians,” that once opposing counsel objected to the records Attorney Sokol argued that the “reasonableness of medical bills is presumed and may be proven by [the] lay testimony” of Mrs. Roberts', that Attorney Sokol also argued that “under the Sudden Onset Doctrine, which provided causal connection between the negligent act, injury, and necessary medical treatment” the medical records could be admitted into evidence, and that this argument was, nevertheless, rejected by the trial court; 3) that Dr. Whetstone properly evaluated Mrs. Roberts and her medical records prior to his trial testimony, that her medical records revealed issues that were both positive and negative for her case, that Attorney Sokol chose not to call her treating physicians due to “concerns about opening the door to cross-examination about [her] history of drug, alcohol, sexual, and physical abuse and because the doctors who expressed opinions regarding her constellation of symptoms and degree of disability stated that she was less injured than she came across,” and that Mrs. Roberts “admits she does not know if calling [her treating physicians] would have made a difference in the jury verdict;” 4) that Defendants “considered” engaging an engineer or accident reconstruction expert and that the idea was “rejected” for the following reasons: the high cost of such an expert, “the fact that the other car could not have started at 0 and hit the vehicle in which [Mrs. Roberts] was in so hard,” testimony from “two independent witnesses ... that [Ms. Patterson's] vehicle had the right of way or green light,” and Mrs. Roberts' inconsistent testimony “on the issue of the color of the light for [Ms. Nabors'] vehicle, stating that it was a green arrow and a green light and testifying she didn't know what color the light was;” 5) that Attorney Sokol “interviewed potential lay witnesses before trial,” but decided not to call any of them to testify based on his reasoning that “[t]here is a danger to putting on lay or character witnesses at trial, and if [Attorney] Sokol thought the case was going well (as he did ...), he probably would not choose to put them on;” 6) that Defendants introduced information relating to Mrs. Roberts' W–2 forms and “the Missouri mortality tables in order to extrapolate her economic loss” during her testimony; 7) that Defendants considered hiring an economist to aid in putting on evidence of loss of household services but ultimately rejected the idea because “the cost of presenting such evidence ... outweighed the benefit” and that with regard to presenting “loss of household services evidence,” Attorney Sokol had explained to Plaintiffs “that there were lots of ways to try cases, and about the expenses of the case and the effect on the net to them if they were only able to get a judgment against ...” one defendant; and 8) that Plaintiffs “never objected to [Defendants'] choices as to how to present the case,” and after the jury returned its verdict, Mrs. Roberts expressed her surprise that “no fault was found [against Ms.] Patterson” but she “d[id not] know of anything that could have changed the jury's mind about...