Van Kirk v. Miller

• Decision Date: 13 July 2007
• Docket Number: No. 76A03-0610-CV-499.,76A03-0610-CV-499.
• Citation: 869 N.E.2d 534
• Parties: Thomas VAN KIRK, Appellant-Plaintiff, v. Ward MILLER and More, Miller, Yates & Tracey, Appellees-Defendants.
• Court: Indiana Appellate Court

869 N.E.2d 534

Thomas VAN KIRK, Appellant-Plaintiff, v. Ward MILLER and More, Miller, Yates & Tracey, Appellees-Defendants.

No. 76A03-0610-CV-499.

Court of Appeals of Indiana.

July 13, 2007.

Jon R. Pactor, Indianapolis, IN, Attorney For Appellant.

Cathleen M. Shrader, John M. Clifton, Jr., Barrett & McNagny LLP, Fort Wayne, IN, Attorneys for Appellees.

OPINION

BAKER, Chief Judge.

Appellant-plaintiff Thomas Van Kirk appeals the trial court's grant of summary judgment in favor of appellees-defendants Ward Miller and the More, Miller, Yates & Tracey law firm (the More law firm) (collectively, the appellees). Specifically, Van Kirk argues that the trial court erred by granting summary judgment because (1) it did not rule on specific portions of the appellees' motion to strike, (2) the conflict of interest between Van Kirk and Miller was nonconsentable or, alternatively, Miller's conflict waiver was inadequate, (3) Miller breached his duty to Van Kirk when he negligently drafted an agreement between Van Kirk and Mark Summers and allegedly favored Summers during the dual representation, and (4) Miller breached his duty to Van Kirk when he continued to represent Summers after Van Kirk had terminated his attorney-client relationship with Miller. Concluding that Van Kirk cannot show that he was prejudiced by the trial court's order regarding the appellees' motion to strike, that the conflict of interest at issue herein was consentable, that Van Kirk knowingly signed a conflict waiver, and that Miller did not breach a duty to Van Kirk, we affirm the trial court's grant of summary judgment in favor of the appellees.

FACTS

In 1998, Summers purchased the B & T Sports Bar (B & T) in Fort Wayne on contract from Hilda Dill. Summers also purchased the real estate on which B & T was located on contract from Mary Fryback. In October 2002, Summers began experiencing financial difficulties and contacted Miller¹ for financial advice. After analyzing Summers's finances, Miller asked Summers if he would consider selling B & T. Summers expressed an interest to sell the bar and authorized Miller to contact potential buyers. Miller contacted Van Kirk, an experienced businessman² who Miller had represented for almost fifteen years. Van Kirk expressed an interest in the B & T deal, and Miller gave him Summers's contact information.

Van Kirk met with Summers and Summers told him that he owed Fryback $25,000 for the property and owed Dill $35,000 for the bar. Van Kirk offered to pay $30,000 to Dill, $20,000 to Fryback, and $5,000 to Summers, for a total purchase price of $55,000. Summers agreed to accept that offer. Van Kirk later met with Fryback, who verbally agreed to accept $20,000 in exchange for releasing Summers from his obligations on their contract. However, when Van Kirk contacted Dill, she rejected his $30,000 offer.

Nevertheless, Van Kirk told Summers that he wanted Miller to prepare the documents necessary to effect the B & T purchase. Because Miller would be representing both Van Kirk and Summers in the transaction, Miller drafted a Waiver of Conflict of Interest (the conflict waiver). Summers and Van Kirk both signed the conflict waiver on October 22, 2002.

Based on his clients' direction, Miller drafted an Indemnity and Sale Agreement (the agreement), which provided that Summers would sell B & T to Van Kirk for $55,000. At Van Kirk's request, the agreement explicitly provided that the agreement was conditioned on Fryback and Dill releasing Summers from his financial obligations on their contracts:

Summers has been purchasing the real estate located at 2809 West Main Street from [Fryback], who has agreed to take $20,000.00 at closing in lieu of the greater amount owed her under her real estate purchase contract; the validity of this agreement is contingent upon Fryback agreeing to release Summers of his obligations under that contract and then providing marketable title to Summers to provide to Van Kirk at closing. . . .

All of the shares of [B & T] are presently owned by [Summers], however, they have been pledged to [Dill] as collateral for an obligation owed to her. This agreement is expressly conditioned upon the willingness of Dill to release Summers of any continuing obligations to her in exchange for her receipt of $30,000.00 at closing. Summers will then transfer to Van Kirk all of the outstanding shares of [B & T], to which Van Kirk will contribute the land as capital. The transfer is also conditioned upon the acceptability of [Van Kirk], to the Indiana Alcohol and Tobacco Commission, as a shareholder in [B & T].

Appellant's App. p. 14-15. Van Kirk and Summers signed the agreement on October 22, 2002. The closing was scheduled to take place at Miller's office on October 31, 2002, and, in anticipation of the closing, Van Kirk gave Miller $55,000, which Miller placed in an escrow account.

Although Van Kirk and Summers had signed the agreement, their interests soon began to diverge. After the signing, Summers began independently discussing the terms of the agreement with Dill. Dill informed Summers that she did not believe that she was receiving adequate consideration for her interest in B & T and that she would not accept less than $35,000. When Fryback learned that Dill would not accept a discounted amount, Fryback also "changed her mind" and informed Summers that she would "not be giving a discount." Id. at 29. Dill told Summers that she would be interested in purchasing his B & T interest and that she would provide him with more than $5,000 "for his trouble." Id. at 7.

On the morning of the proposed closing, Summers called Miller to tell him that he "wanted a couple days to think about it." Id. at 62. Miller called Van Kirk to see if he would "be interested in putting more money into" the deal, and Van Kirk agreed that he would. Id. Miller prepared a revised closing document based on the higher sales price, and Van Kirk arrived at Miller's office with an additional $7,500 to pay Fryback and Dill in full. However, Miller and Van Kirk were the only two who attended the scheduled closing.

On November 5, 2002, Summers told Miller that he would not complete the transaction with Van Kirk "under any circumstances." Id. at 63. Miller met with Van Kirk that same day and returned the money in the escrow account that had been earmarked for the transaction. Van Kirk accepted the money and informed Miller that another attorney, Don Swanson, was now representing him. Id. at 106.

Ultimately, Summers sold his interest in B & T to Dill on November 18, 2002, realizing an $11,000 profit. Miller represented Summers at the closing and Dill was represented by independent counsel. Through his new counsel, Van Kirk filed a complaint against Summers, Dill, and Fryback on November 8, 2002, alleging breach of contract. The matter settled approximately nine months later, and Van Kirk's complaint was dismissed with prejudice on September 23, 2003.

On October 14, 2004, Van Kirk filed a complaint against the appellees, alleging legal malpractice. The appellees filed a motion for summary judgment on April 21, 2006, and Van Kirk responded to the motion on July 17, 2006.³ On July 28, 2006, the appellees moved to strike portions of Van Kirk's designated evidence, specifically, two non-party affidavits and various references to depositions taken in an action in which the appellees were not a party.

The trial court held a hearing on August 11, 2006, and issued an order on August 15, 2006, granting summary judgment in favor of the appellees. The trial court's order provides:

The Court will not unduly prolong its Order by ruling in detail on each objection lodged by [the appellees] to the evidentiary materials filed with the Court in opposition to [their] Motion for Summary Judgment []. This Court is aware of what evidentiary material can and cannot be considered by a court when ruling upon a Motion for Summary Judgment. All evidentiary materials not filed in a timely manner have not been considered by the Court. All statements set forth in Affidavits which expressly contradict deposition testimony have not been considered by the Court. All materials not admissible into evidence at trial have not been considered by the Court. In reviewing the remaining evidentiary materials properly before the Court for consideration in a light most favorable to the non-moving party the Court finds and Orders as follows:

[The trial court lists its findings of fact.]

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Conclusions of Law

1. To prevail on a negligence claim a party must prove duty, breach of duty, proximate cause and damages.

2. A lawyer certainly at all times has a duty to promote and zealously represent all lawful interests of his clients.

3. The attorney/client relationship existing between Miller and Van Kirk commenced when Miller made the telephone call to Van Kirk advising him that possibly he could purchase a bar business from Summers and concluded when Miller advised Van Kirk the transaction would not be completed and returned to Van Kirk his escrow money on November 5, 2002.

4. Viewing all designated evidentiary materials properly before the Court in support of and in opposition to Miller's Motion for Summary Judgment in a light most favorable to Van Kirk this Court cannot discern from the facts, or reasonable inferences to the drawn therefrom, what duty Miller breached he owed to Van Kirk.

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7. Miller had no control over what Dill would or would not do to assist or hinder the Summers/Van Kirk transaction.

8. Miller had no control over the fact that Summers had independently come to the conclusion that he could make more money by selling the bar business to Dill than fulfilling his contractual obligations with Van Kirk.

9. No evidence exists that Miller sought in any manner to encourage Summers to independently negotiate a new contract with Dill while he (Miller) still had an ongoing attorney/client relationship with Van Kirk.

10. Miller stood ready and...