Wilson-Cunningham v. Meyer

• Decision Date: 15 November 1991
• Docket Number: No. 66246,WILSON-CUNNINGHAM,66246
• Parties: Angela, et al., Appellants, v. Patricia A. MEYER, et al., Appellees.
• Court: Kansas Court of Appeals

Page 725

820 P.2d 725

16 Kan.App.2d 197

Angela WILSON-CUNNINGHAM, et al., Appellants, v. Patricia A. MEYER, et al., Appellees.

No. 66246.

Court of Appeals of Kansas.

Nov. 15, 1991.

Review Denied Jan. 31, 1992.

Syllabus by the Court

Applying the multi-criteria test adopted in Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990), for the determination of an attorney's liability in tort to a nonclient to the facts of this case, we hold the district court properly entered summary judgment for the defendant attorneys.

Craig E. Collins, Topeka, for appellants.

Sheryl A. Bussell, Iola, for appellee Patricia A. Meyer.

Robert K. Scovel of Scovel, Emert, Heasty & Chubb, Independence, for appellees Roger L. Gossard, an individual, and Becker, Hildreth, Gossard, Hassenplug, Abel and Kritz, P.A.

Before PIERRON, P.J., and LARSON and RULON, JJ.

RULON, Judge:

Angela Wilson-Cunningham, et al., plaintiffs, appeal the district court's grant of summary judgment to Patricia A. Meyer, Roger L. Gossard, and Becker, Hildreth Essentially we must decide if plaintiffs have a cause of action either in tort or contract against defendants. For the reasons detailed below, we affirm the district court's grant of summary judgment.

Gossard, Hassenplug, Abel and Kritz, P.A., in a legal malpractice action.

FACTUAL HISTORY

The material facts of this case are undisputed and are as follows:

This action for legal malpractice arises from a 1987 divorce proceeding between Charles and Anita Wilson. Anita retained Roger Gossard to represent her in the divorce, and Charles retained Patricia Meyer (now Patricia Bouziden) to represent him.

A divorce hearing was held on November 5, 1987. Charles and Anita each testified that while they had nearly reached a property settlement agreement, they had not yet agreed on the division of certain items of personal property, primarily household items. Each agreed that he or she would prepare a list of these items that he or she desired. If they could not agree on the division, they would present the matter to the district court for resolution. Neither Charles nor Anita foresaw a problem in dividing this property.

After hearing the evidence and being fully advised, the district court granted the parties a divorce; approved the parties' stipulations as to property division, maintenance, and child custody and support; and ordered Gossard to prepare a decree of divorce. The court further ordered that if the parties could not reach agreement as to final division of household items, the court would order a division at a later date.

On November 11, 1987, Anita sent her list of household items to Gossard, who received it on November 12 or 13, 1987. Gossard then forwarded this list to Meyer on November 17, 1987, along with a proposed decree of divorce. He requested that Meyer approve the decree and return it to him for filing. Meyer returned the decree to Gossard by mail dated November 23, 1987, the Monday before the Thanksgiving holiday. Gossard took the decree to the district court clerk for filing on December 1, 1987, but the decree was not filed until December 4, 1987, at 9:00 a.m. Charles Wilson died intestate December 4, 1987, at 12:16 a.m.

Anita subsequently moved the district court, under the provisions of K.S.A. 60-260, for relief from the decree of divorce filed December 4, 1987. Ultimately, the district court granted the requested relief on the ground the divorce decree was ineffective to terminate the marriage because the decree was filed after Charles' death. Our Supreme Court affirmed this ruling. In re Marriage of Wilson, 245 Kan. 178, 777 P.2d 773 (1989).

On December 4, 1989, the children of Charles who were not of his marriage to Anita filed a petition against the defendants, claiming: (1) because the divorce decree was not timely filed, Anita received a spousal share from Charles' intestate estate and joint tenancy property valued at nearly $580,000; (2) consequently, plaintiffs received a smaller share of Charles' estate; (3) the defendants were negligent per se because they breached a duty to timely file the decree pursuant to K.S.A. 60-258, K.S.A. 60-2702a, and Supreme Court Rule 170 (1990 Kan.Ct.R.Annot. 123); (4) Meyer did not represent Charles with the reasonable and ordinary skill of a legal practitioner; (5) individual defendants breached their contractual duties owed to Charles and plaintiffs as third-party beneficiaries by failing to timely file the divorce decree; (6) Meyer breached her contractual duty to represent plaintiffs; and (7) Gossard and his firm breached their delegated duty to timely file the divorce decree.

The plaintiffs and defendants eventually filed motions for summary judgment, all agreeing no material factual issues were in dispute. In addition to the above undisputed facts, the district court found: Anita through intestate succession and joint tenancy received property worth at least $613,219; the remainder of Charles' estate equaled nearly $68,143; and if the divorce had been final at Charles' death, his probate estate would have been $530,646.

The district court then granted summary judgment to defendants, concluding: (1) There existed no issues as to any material facts; (2) whether an attorney erred is a question of law in a legal malpractice action; (3) the defendants' failure to file the divorce decree within the time limits prescribed by Supreme Court Rule 170 was not negligence per se; (4) the delay in filing the decree of divorce was not legal malpractice, because under the facts of this case, the parties did not reach an agreement as to disposition of all personalty at the divorce hearing; (5) no attorney-client relationship existed between Meyer and plaintiffs; (6) no privity of contract existed between Meyer and plaintiffs; (7) there was no showing that Meyer's claimed negligence or omissions proximately caused harm to plaintiffs; (8) no privity of contract existed between Gossard and plaintiffs; (9) an attorney is not liable to a client's adversary for negligence or breach of contract; and (10) under the test enunciated in Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990), Meyer and Gossard owed the plaintiffs no duty in their representation of Charles and Anita.

ACTION IN TORT

Plaintiffs argue to us the defendants are liable to them for their affirmative acts or omissions in representing Charles and Anita during the couple's divorce under the test adopted by our Supreme Court in Pizel, 247 Kan. 54, 795 P.2d 42. Necessarily, plaintiffs argue each factor of the Pizel test weighs favorably toward a conclusion that defendants owed plaintiffs a duty in the representation of Charles and Anita in the divorce action.

Defendant Meyer claims when the Pizel test is applied to her in representation of Charles, there is no legal duty flowing from her to the plaintiffs. Meyer contends the divorce action was not intended to benefit plaintiffs. However, if it was intended to benefit plaintiffs, any harm caused to them by her acts or omissions was unforeseeable. Finally, Meyer urges that if plaintiffs' claim is permitted, an unfair burden would be placed on the legal profession.

Defendant Gossard argues that he had no duty to Charles or plaintiffs because he contracted to represent Anita. He also asserts the divorce action was not intended to benefit plaintiffs and that imposing liability under these circumstances would place an unwarranted burden on legal practitioners.

In granting summary judgment to the defendants, the district court essentially agreed with their contentions as stated above.

As we have often stated, the rules of summary judgment are well established:

"A moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden is on the moving party to demonstrate that no genuine issue of material fact exists when the record is viewed in a light most favorable to the nonmoving party." Crooks v. Greene, 12 Kan.App.2d 62, Syl. p 1, 736 P.2d 78 (1987).

"The plain language of K.S.A.1987 Supp. 60-256(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof." Heinsohn v. Motley, 13 Kan.App.2d 66, Syl. p 1, 761 P.2d 796 (1988).

In an action for negligence, the existence of a duty to the plaintiff by the defendant is an essential element of the plaintiff's case. Consequently, if the plaintiffs here failed to show that Meyer and Gossard owed them a duty, the grant of summary judgment was proper. In determining whether the grant of summary judgment was proper, we do not need to reach the issue of whether Meyer and Gossard were negligent in their representation of Charles and Anita. We need to determine only whether Meyer and Gossard owed the plaintiffs a duty.

In Pizel, our Supreme Court considered whether a nonclient may sue an attorney in tort for the attorney's conduct in representing a client or, in other words, whether the nonclient could recover under a legal duty owed directly to the nonclient by the attorney. Attorney Whalen was sued by the potential beneficiaries of a...