Wabaunsee v. Harris, 51345
| Decision Date | 22 April 1980 |
| Docket Number | No. 51345,51345 |
| Citation | 1980 OK 52,610 P.2d 782 |
| Parties | William R. WABAUNSEE and Vivian Hahn Wabaunsee, Appellants, v. David O. HARRIS and John G. Ghostbear, Appellees. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Tulsa County; B. R. Beasley, Judge.
Appellants appeal from the entry of summary judgment against them in an action for negligent representation.
REVERSED IN PART, AFFIRMED IN PART.
Paul F. McTighe, Jr., and Eric E. Anderson, Tulsa, for appellants.
Marion M. Dyer, Broken Arrow, for appellees.
This action, based on an alleged breach of professional responsibility, was initiated by William R. Wabaunsee and Vivian Hahn Wabaunsee, appellants, (Wabaunsees), asserting that David O. Harris and John G. Ghostbear, appellees, (lawyers), failed to represent them in a proper, skillful, and diligent manner. The trial court after an examination of the pleadings, affidavits and depositions filed in the case sustained the appellees' motion for summary judgment.
In 1974, the appellants were indicted by a Federal Grand Jury in the Southern District of Illinois. The indictment alleged that the appellants had transported stolen goods across state lines. It failed to charge that the asportation was with knowledge that the property was stolen. The trial resulted in a hung jury. The attorney representing the appellants withdrew from the case, and the appellees represented the Wabaunsees at the second trial which resulted in a verdict of guilty. After the guilty verdict was reached, the Wabaunsees' bond was revoked. They were confined in the Peoria Illinois County Jail from November 1, 1974, until November 24, 1974, when they were released through the efforts of a Peoria, Illinois attorney, Joseph R. Napoli. Subsequently, the convictions were reversed in United States v. Wabaunsee, 528 F.2d 1 (7th Cir. 1975) based on the insufficiency of the indictment. The sufficiency of the indictment under which they were tried was attacked for the first time on appeal. The Court of Appeals commented that the indictment had not been challenged at any time during the two trials, and determined that although a more rigid standard is applied when the sufficiency of an indictment is raised for the first time on appeal, the indictment was "so obviously defective as to not charge the offense by any reasonable construction."
As an outgrowth of the trial litigation, the Wabaunsees entered into a contract with the lawyers for legal services. The Wabaunsees failed to pay the contractual sums and the lawyers filed suit to recover on the contract. The Wabaunsees filed a counterclaim against the lawyers alleging that: they negligently handled the trial; did not represent them in a skillful and diligent manner, and abandoned them in the Peoria jail for over twenty-one days. The counterclaim was dismissed without prejudice, and a default judgment was entered against the Wabaunsees on the contract for legal fees. This case was appealed, No. 48,597, the Court of Appeals reversed and remanded, and this Court granted certiorari and affirmed the trial court in Harris v. Wabaunsee, 593 P.2d 86 (Okl.1979).
In essence, the allegations of the Wabaunsees' counterclaim were reasserted in this case. The Wabaunsees contended that the lawyers were grossly negligent, both during and after the Peoria trial. The trial court struck the allegation, "and also during the trial," stating this had been ruled on when the lawyers obtained a judgment for services rendered in the contract action.
Basically, there are two main thrusts to the Wabaunsees' contentions: 1) the purported failure of the lawyers to expeditiously secure bond after conviction, and 2) the alleged negligent misrepresentation by the lawyers at the time of trial.
The Wabaunsees urge that the trial court erred in granting the lawyers' motion for summary judgment. They contend that Ghostbear and Harris abandoned them after the trial; and that they showed a lack of due diligence in not appealing the trial court's denial of bond to the Seventh Circuit Court of Appeals instead of negotiating a recommendation from the prosecuting attorney. This contention was repudiated by the affidavits of the two witnesses submitted by the Wabaunsees to support the allegation. 1 Further, the petitions reflect that the Wabaunsees did not allege that they could have posted bond, had it been granted by the court any time before November 18, 1974. 2
The Wabaunsees argue that with the exercise of due diligence the lawyers could, and should, have appealed the denial of bond. However, witnesses for the Wabaunsees testified that, in their opinion, the most expeditious way to obtain bond was to reapply to the trial court with a recommendation from the prosecutor, and that when a bond of $50,000 had been agreed upon, it would be useless to waste time and effort in appealing.
Collins v. Wanner, 382 P.2d 105 (Okl.1963) is applicable in this instance. It holds that:
"An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his State and on which reasonable doubt may be entertained by well-informed lawyers."
When the lawyers introduced evidence in their favor indicating there was no substantial controversy as to the expeditious handling of the posting of bond, the Wabaunsees had the burden of showing that evidence was available which would justify trial of the issue. 3 The Wabaunsees failed to meet this burden.
It is contended by the Wabaunsees that the trial court erred when it determined that the doctrine of informed consent was not applicable in this instance. Although this theory was discussed in the brief in opposition to the motion for summary judgment, it was not alleged in the petition. This Court has repeatedly held that the inquiry on appeal concerning the propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by the pleadings. 4
The Wabaunsees originally sued the lawyers for negligent representation. The trial court struck the allegation of negligence occurring during the Peoria trial and determined that judgment for the attorneys in the contract action for recovery of attorney fees precluded the Wabaunsees from suing on matters which occurred at the Peoria trial, but that the Wabaunsees could litigate matters which took place after the trial. The Wabaunsees argue that the resolution of the contractual action has no bearing on their claim of professional irresponsibility, and that their claim of negligent practice is an independent one which has never been adjudicated. 5
The trial court evidently...
To continue reading
Request your trial
-
City of Enid v. Perb
...propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by the pleadings." Wabaunsee v. Harris, 1980 OK 52, ¶ 9, 610 P.2d 782, 785. An order that grants summary relief disposes of legal issues. Therefore, on appeal, the review we conduct ......
-
Leak-Gilbert v. Fahle, 97,540.
...and proper professional practices.]. See also, Vanguard Production, Inc. v. Martin, 894 F.2d 375, 378 (1990) [workmanlike duty]; Wabaunsee v. Harris, 1980 OK 52, ¶ 12, 610 P.2d 782; Birchfield v. Harrod, 1982 OK CIV APP 2, ¶ 32, 640 P.2d 6. Lewis v. Farmers Ins. Co., Inc., 1983 OK 100, ¶ 5,......
-
Graham v. Travelers Ins. Co.
...propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by the pleadings." Wabaunsee v. Harris, 1980 OK 52, ¶ 9, 610 P.2d 782, 785. Our ruling must be made on the record that the parties actually presented and not on a record that is pote......
-
Bivins v. State ex rel. Oklahoma Memorial Hosp.
...Co., Okl., 698 P.2d 17, 20 (1985); RST Service Manufacturing, Inc. v. Musselwhite, Okl., 628 P.2d 366, 368 (1981); Wabaunsee v. Harris, Okl., 610 P.2d 782, 784 (1980); Culpepper v. Lloyd, Okl., 583 P.2d 500, 502 (1978); Weeks v. Wedgewood Village Inc., Okl., 554 P.2d 780, 784 (1976); Northr......