Worsham v. Nix

• Decision Date: 03 June 2003
• Docket Number: No. 98,041.,98,041.
• Citation: 83 P.3d 879
• Parties: Rae WORSHAM, Individually and as Administratrix of the Estate of Michael Worsham, and The Estate of Michael Worsham, Plaintiffs/Appellants, v. Jeff NIX and Scott Scroggs d/b/a Nix & Scroggs Law Firm, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

83 P.3d 879

Rae WORSHAM, Individually and as Administratrix of the Estate of Michael Worsham, and The Estate of Michael Worsham, Plaintiffs/Appellants, v. Jeff NIX and Scott Scroggs d/b/a Nix & Scroggs Law Firm, Defendants/Appellees.

No. 98,041.

Court of Civil Appeals of Oklahoma, Division No. 2.

June 3, 2003.

Rehearing Denied June 30, 2003.

Certiorari Denied December 15, 2003.

Bill V. Wilkinson, Wilkinson Law Firm, Tulsa, OK, for Plaintiffs/Appellants.

Jody R. Nathan, Joseph R. Farris, Kristin Blue Fisher, Feldman Franden Woodard & Farris, Tulsa, OK, for Defendants/Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Opinion by JOE C. TAYLOR, Presiding Judge:

¶ 1 In this action for legal malpractice, Plaintiff, Rae Worsham,¹ appeals the summary judgment granted to Defendants, Jeff Nix and Scott Scroggs d/b/a Nix & Scroggs Law Firm. The issues on appeal are (1) whether questions of fact preclude summary judgment on Plaintiff's claims of legal negligence, breach of contract, and fraud; (2) whether Defendants can be held liable for Michael Worsham's suicide; and (3) whether Defendants can be held liable for emotional distress damages. Having reviewed the record and applicable law, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

¶ 2 For purposes of reviewing the summary judgment granted to Defendants, we accept as true the following facts: In January 1998, Plaintiff and her husband, Michael Worsham, hired Defendant Scott Scroggs, of the Nix & Scroggs law firm, to stop harassment that Michael was suffering at his employment with Public Service Company of Oklahoma (PSO). Scroggs accepted a non-refundable $650 retainer from Plaintiff and Michael and advised them that he would warn PSO to stop the harassment and would file a lawsuit against PSO. Scroggs knew that Michael was suffering from mental and emotional problems as a result of the harassment. Plaintiff and Michael thought the harassment would end if Scroggs filed the lawsuit. Although he advised Plaintiff and Michael that he had contacted PSO and filed a lawsuit against it, Scroggs did neither. The workplace harassment continued unabated and became even worse. On May 29, 1998, without knowledge that Scroggs had not contacted PSO or filed a lawsuit on his behalf, Michael committed suicide because "the stress and hopelessness experienced at work ... caused him to have mental illness and delirium which resulted in an uncontrollable urge to commit suicide."²

¶ 3 Plaintiff filed this lawsuit against Defendants, ultimately asserting three causes of action: (1) legal malpractice, seeking actual and punitive damages for gross negligence in failing to perform legal services; (2) fraud, seeking actual and punitive damages for mis-representations made about contacting PSO and filing the lawsuit; and (3) breach of contract, seeking actual damages including return of the non-refundable retainer.³ It became clear during the pretrial motion stage that, in addition to return of the non-refundable retainer, Plaintiff sought actual and punitive damages for wrongful death, laying the blame for Michael's suicide on Defendants. After two motions for summary judgment and a motion to reconsider, the trial court granted summary judgment to Defendants and Plaintiff appeals.

STANDARD OF REVIEW

¶ 4 "Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law." Allen v. Lynn Hickey Dodge, Inc., 2001 OK 93, ¶ 5, 39 P.3d 781, 783. The summary judgment process "is a search for undisputed material facts that would support but a single inference which favors the movant." Shamblin v. Beasley, 1998 OK 88, ¶ 9, 967 P.2d 1200, 1208.

¶ 5 Our standard of review on an appeal from a summary judgment is clear. Although a trial court considers factual matters when deciding whether summary judgment is appropriate, its ultimate decision is purely legal: whether one party is entitled to judgment as a matter of law because there are no material disputed facts. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Therefore, our standard of review on appeal is de novo. Id.; see also Copeland v. The Lodge Enter., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699

. "Like a trial court, an appellate court examines the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact and, as in the trial court, all inferences and conclusions arising from the evidentiary materials are viewed in a light most favorable to the non-moving party." Cranford v. Bartlett, 2001 OK 47, ¶ 2, 25 P.3d 918, 920 (citation omitted).

QUESTIONS OF FACT PRECLUDE SUMMARY JUDGMENT ON PLAINTIFF'S CLAIMS OF LEGAL NEGLIGENCE, BREACH OF CONTRACT, AND FRAUD

¶ 6 The plaintiff in a legal negligence action must prove the existence of an attorney-client relationship, a breach of the attorney's duty to the client, and a causal nexus between the lawyer's negligence and resulting injury. Manley v. Brown, 1999 OK 79, ¶ 8, 989 P.2d 448, 452. As to the first element, it is undisputed that Michael retained Scroggs to represent him in an effort to stop the harassment at work.

¶ 7 As to the second element, Plaintiff presented evidence that Scroggs breached his duty to "exercise ordinary professional skill and diligence" in representing Michael. Leak-Gilbert v. Fahle, 2002 OK 66, ¶ 11, 55 P.3d 1054, 1056. Plaintiff presented evidence that Scroggs did very little in his representation of Michael. Although Scroggs testified he called PSO's human resources department, PSO has no record of such a call and denies having received such a call. Furthermore, even if PSO's human resources director never returned such a call, Scroggs made no further effort to contact the human resources department. Scroggs also admitted that he did not personally file the lawsuit against PSO; rather, he relied on a law clerk, and blamed the law clerk for not accomplishing the task. Nevertheless, Scroggs made no effort to confirm the filing of the lawsuit and never questioned why PSO had not answered the petition. In proceedings against Scroggs by the Oklahoma Bar Association, the Oklahoma Supreme Court determined "that the evidence is clear and convincing that [Scroggs] represented ... that he instructed law clerks to file the petitions, when he did not do so." State ex rel. Oklahoma Bar Ass'n v. Scroggs, 2003 OK 21, ¶ 56, 70 P.3d 821, 833. Thus, a reasonable person could conclude that Defendant Scroggs breached his duty to Michael.

¶ 8 Plaintiff also presented evidence of damages resulting from the breach. In particular, Plaintiff presented evidence that she and Michael paid court costs and a non-refundable retainer to Scroggs. The record does not reflect that this money has been returned to Plaintiff. Furthermore, as discussed subsequently, Plaintiff has presented evidence to raise a question of fact as to whether emotional distress damages may be recovered. Thus, Defendants are not entitled to summary judgment on Plaintiff's claim of legal negligence.

¶ 9 Plaintiff also seeks damages for breach of contract. It is clear from the evidence that Michael and Scroggs entered into a contract. The same evidence that Plaintiff presented regarding legal negligence raises a question of fact as to whether Scroggs breached that contract. Moreover, as noted above, the record does not reflect that Defendants have ever returned the court costs and non-refundable retainer that were paid to Scroggs. Thus, Defendants are not entitled to summary judgment on Plaintiff's claim of breach of contract.

¶ 10 Plaintiff's third cause of action is based on fraud. "The elements of common law fraud are: 1) a false material misrepresentation, 2) made as a positive assertion which is either known to be false, or made recklessly without knowledge of the truth, 3) with the intention that it be acted upon, and 4) which is relied on by the other party to his/her own detriment." Rogers v. Meiser, 2003 OK 6, ¶ 17, 68 P.3d 967, 977. Plaintiff presented evidence that Scroggs falsely represented to them that he had contacted PSO and had filed a lawsuit. As noted above, PSO denies having received a phone call from Scroggs. Furthermore, in the bar proceedings against Scroggs, the Supreme Court determined that Scroggs' representation that he instructed a law clerk to file the lawsuit, when he had not done so, is "a deliberate misrepresentation of facts." Thus, there is evidence that, at the very least, Scroggs recklessly made false representations without knowledge of their truth. As to the element of intent, it can be inferred that Scroggs intended Plaintiff and Michael to rely on his representations, at least to the extent that they would not seek other legal counsel. It can also be inferred from the evidence that Plaintiff and Michael relied on the misrepresentations, again, at least to the extent of not seeking other legal counsel. Furthermore, Michael informed his supervisor that he had hired a lawyer and a lawsuit had been or was going to be filed to stop the harassment. Finally, as to the issue of damages, it can be inferred from the evidence that, had Plaintiff and Michael known of the falsity of Scroggs' representations, they could have hired another lawyer. Also, as will be further discussed, Plaintiff may recover for emotional distress damages suffered as a result of fraud by Scroggs. Therefore, as with the claims of legal negligence and breach of contract, Defendants are not entitled to summary judgment on Plaintiff's fraud claim.

DEFENDANTS CANNOT BE HELD LIABLE FOR MICHAEL WORSHAM'S SUICIDE

¶ 11 We turn now to the damages to which Plaintiff claims she is entitled. Plaintiff first claims she is entitled to recover for Michael's death, which she alleges was brought on by Scroggs' failure to act on Michael's behalf. According to Plaintiff, Michael...