Webb v. Pomeroy, 53788

• Decision Date: 16 December 1982
• Docket Number: No. 53788,53788
• Parties: Frank E. WEBB and Norma Webb, Appellants, v. Charles P. POMEROY and Emerson Pomeroy, Appellees.
• Court: Kansas Court of Appeals

Page 465

655 P.2d 465

8 Kan.App.2d 246

Frank E. WEBB and Norma Webb, Appellants, v. Charles P. POMEROY and Emerson Pomeroy, Appellees.

No. 53788.

Court of Appeals of Kansas.

Dec. 16, 1982.

Review Denied Feb. 24, 1983.

Syllabus by the Court

1. In order for a party to prove legal malpractice in the handling of litigation, it is necessary for the party, in the new lawsuit, to successfully retry that underlying lawsuit.

2. To succeed in a suit to convey real estate founded upon an oral agreement, the terms and conditions of the oral agreement must be proved.

3. A tort action under K.S.A. 60-513(b ) is not barred until two years after substantial injury or two years after injury becomes reasonably ascertainable.

4. One who conveys real estate, or represents that he can do that which is customarily done by lawyers, is bound to the same degree of skill and fidelity as members of the practicing bar.

5. One who, although not a lawyer, undertakes to do the work of a lawyer, is held to have known the legal inadequacies of his work whether he, in fact, did or did not know. If he thereafter assures his client the inadequate work is adequate, that assurance amounts to fraudulent concealment.

6. In a suit for legal malpractice against two brothers, it is held: (a) Failure to prove the underlying suit warrants a directed verdict in favor of the lawyer brother; (b) as to the nonlawyer brother who prepared conveyance instruments and continually represented his work as adequate and effective to achieve the desired result, when it was not, a directed verdict in his favor was error because the statute of limitations did not begin to run until injury resulted from the decision in the underlying lawsuit.

Paul C. Nelson and Randall J. Forbes, of Crane, Martin, Claussen, Hamilton & Forbes, Topeka, for appellants.

Donna M. Dill, of Schroeder, Heeney, Groff & Hiebert, a Professional Association, Topeka, for appellee Charles P. Pomeroy.

Elwaine F. Pomeroy, Pomeroy & Pomeroy, of Topeka, for appellee Emerson Pomeroy.

Before FOTH, C.J., JEROME HARMAN, Chief Judge Retired, Assigned, and FREDERICK WOLESLAGEL, District Judge Retired, Assigned.

FREDERICK WOLESLAGEL, District Judge Retired, Assigned:

The plaintiffs directly appeal from a directed verdict at the conclusion of the evidence entered in favor of each defendant during a jury trial. In chronological order, the issues involved in this appeal are:

1. A claim of legal malpractice against Charles Pomeroy, who is not an attorney, in representing plaintiffs in a real estate transaction.

2. A claim of fraudulent misrepresentation and concealment by Charles Pomeroy as to the effectiveness of the services he undertook for the plaintiffs.

3. A claim of legal malpractice against Charles' brother, Emerson Pomeroy (hereafter E. Pomeroy), who is an attorney, in representing plaintiffs in a lawsuit he filed which purported to establish the validity of the services his brother performed for the plaintiffs.

As will be detailed, in 1971 the plaintiffs transferred their interest in 56 acres of land and their home to Mr. and Mrs. Earnest Emerson in order to prevent foreclosure and cancellation of their contract of sale. Charles handled the transaction and, according to plaintiff, continually promised to secure repurchase rights from the Emersons and repeatedly indicated that he had done so. When the Emersons indicated the property was theirs some years later, the plaintiffs, as suggested by Charles, employed Emerson Pomeroy to represent them in a lawsuit. He appeared in court in their 1975 suit against the Emersons to quiet plaintiffs' title to the land. That suit resulted in title being found to be in the Emersons notwithstanding Charles' work and his assurances. That suit will be referred to as "the underlying suit."

Within seven months after the decision in the underlying suit, this suit was brought claiming malpractice by both Charles and E. Pomeroy.

The evidence in this trial showed that the Webbs were being foreclosed on their purchase of the land. Unable to refinance, they called on their friends, the Earnest Emersons, who were able to borrow about $13,500 and advance about $5,900 of their own money. The Webbs added about $1,400 and these funds forestalled the foreclosure proceedings. Charles Pomeroy had prepared the Webbs' income tax return and they went to him for advice on handling the matter in such a way that, upon repaying the Emersons, they would regain title to the property.

Charles advised them he could handle everything except appearing in court. He prepared a deed from them to the Emersons, a repurchase contract from the Emersons to the Webbs, with many conditions left blank, and a deed from the Emersons to the Webbs. Charles handled the paper work for "the closing" at a savings association which loaned the money to the Emersons. The deed to the Emersons was delivered to them. Although he did sign the deed back to plaintiffs, Earnest Emerson later refused to sign the repurchase contract. When advised of this, Charles said he would take care of it and assured the Webbs then, and periodically through the years from 1971 until 1975, that they had an enforceable agreement.

The Webbs continued to live on the property, made some improvements, and until 1975 made most of the monthly payments due the savings company on Emersons' loan plus several $1,000 per year payments to the Emersons which they claimed was in accordance with their agreement as reimbursement for the $5,900 advanced by the Emersons. The Emersons regarded this as rent.

In 1975 the Webbs learned that the Emersons were considering selling the farm. They contacted Charles and he indicated he would file a quiet title suit on their behalf. This underlying suit was filed in July and E. Pomeroy appeared for plaintiffs in that proceeding. At E. Pomeroy's direction, they thereafter made payments under the alleged repurchase agreement into Topeka Escrow Service.

Having no written repurchase contract, the Webbs needed to prove the terms and conditions of a supposed oral contract in this underlying suit. The decision of the trial judge was that they did not do so. In effect they claim in this suit that E. Pomeroy failed to produce available evidence to supply all necessary terms and conditions.

Before leaving the earlier underlying suit, there were some findings that have relevance in this action as it relates to Charles. In addition to the unexecuted repurchase contract, Charles prepared a contract from the Webbs to the Emersons. All parties signed this and one copy was returned to Charles. The trial judge found that thereupon Charles added this phrase: "That purchaser will resell to Seller for $19,000 plus interest."

The trial judge also found the deed back to the plaintiffs was valid only if the repurchase contract had been signed. Charles said he delivered this deed to Topeka Escrow Service within a week after receiving it but the secretary for that service said nothing was in that file until July, 1975, except a blank escrow agreement and there was never a signed escrow agreement covering the disposition of funds paid into it.

Directed Verdict as to Emerson Pomeroy

The Webbs recognize that in order to recover against E. Pomeroy they are subject to the "but for" rule: But for the negligence of our attorney we would have had a successful result in the (underlying) lawsuit. To satisfy this rule, it was necessary that the Webbs successfully retry the underlying lawsuit in this suit.

"Thus, the plaintiff in a legal malpractice case has not only to prove the four basic elements as in all negligence cases but may be asked to prove three...