Worsham v. Nix

Decision Date19 September 2006
Docket NumberNo. 100,750.,No. 101,167.,100,750.,101,167.
Citation2006 OK 67,145 P.3d 1055
PartiesRae WORSHAM, individually, and as Administratrix of the Estate of Michael Worsham, and the Estate of Michael Worsham, Plaintiffs/Appellants/Counter-Appellees, v. Jeff NIX and Scott Scroggs, d/b/a Nix & Scroggs Law Firm, Defendants/Appellees/Counter-Appellants.
CourtOklahoma Supreme Court

Appeal from the District Court of Tulsa County, State of Oklahoma; Honorable Michael Gassett, Trial Judge.

¶ 0 Plaintiffs, Rae Worsham, individually and as administratrix of the estate of Michael Worsham (decedent) (Rae is decedent's widow), and decedent's estate sued Defendants, Jeff Nix and Scott Scroggs, d/b/a Nix & Scroggs Law Firm (Defendants) for breach of contract, legal malpractice and fraud. In a prior appeal the Court of Civil Appeals (COCA), Division II in Worsham v. Nix (Worsham I), 2004 OK CIV APP 2, 83 P.3d 879, cert. denied (Okla.Sup.Ct., Dec. 15, 2003), affirmed in part and reversed in part a summary judgment grant for Defendants. Worsham I held Defendants could not be held liable for the suicide/wrongful death of decedent, but decided fact questions precluded summary judgment as to all other claims. Worsham I remanded. On remand the wrongful death claim was reasserted, but the trial court ruled the claim was precluded by the law of the case doctrine. As to the remaining claims, after a non-jury trial, judgment was entered for Defendants. Plaintiffs appealed and the matter has been retained. We hold 1) the wrongful death claim is foreclosed by the law of the case doctrine; 2) the trial court did not err by excluding, as unreliable, the testimony of Plaintiffs' expert on the issue of factual proximate causation, without which Plaintiffs failed to show any damages for pre-suicide emotional distress suffered by either decedent or Rae Worsham individually were proximately caused by any wrongful conduct of Defendants; 3) the trial court erred by ruling as a matter of law that Rae Worsham individually is precluded from recovering damages for emotional distress purportedly suffered by her upon learning, about four months after decedent's suicide, of apparent fraudulent conduct on the part of Defendant Scroggs concerning the legal representation for which he was hired; and 4) an amount recovered through a settlement with Public Service Company of Oklahoma (PSO), decedent's employer, in separate litigation brought by Plaintiffs for decedent's wrongful death and other claims is not admissible at trial upon remand to reduce the amount of damages recoverable by Rae Worsham individually in regard to the just mentioned fraud claim should she adequately show entitlement thereto.

THE TRIAL COURT'S JUDGMENT IS REVERSED IN PART AND AFFIRMED IN PART; THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT.

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

Joseph R. Farris, Paula J. Quillin and Jody R. Nathan, Feldman Franden Woodard & Farris, Tulsa, OK, for Defendants/Appellees/Counter-Appellants.

LAVENDER, J.

¶ 1 Plaintiffs, Rae Worsham, individually and as administratrix of the estate of Michael Worsham (decedent) (Rae is decedent's widow), and decedent's estate sued Defendants, Jeff Nix and Scott Scroggs, d/b/a Nix & Scroggs Law Firm (Defendants) for breach of contract, legal malpractice/professional negligence and fraud. This appeal by Plaintiffs is from a judgment in favor of Defendants and requires determination of four main issues. One, in view of the prior opinion by the Court of Civil Appeals (COCA), Division II in Worsham v. Nix (Worsham I), 2004 OK CIV APP 2, 83 P.3d 879, cert. denied (Okla.Sup.Ct., Dec. 15, 2003)1, does the law of the case doctrine foreclose a claim against Defendants for the wrongful death of decedent, who committed suicide about four months after retaining Defendants for legal representation to assist in stopping alleged workplace harassment he was experiencing from co-workers at Public Service Company of Oklahoma (PSO)? Two, did the trial court err in precluding, as unreliable, the testimony of Plaintiffs' expert on the issue of factual proximate cause? Three, did the trial court err in ruling as a matter of law that Rae Worsham individually is precluded from recovering emotional distress damages purportedly suffered upon her learning of apparent fraudulent conduct on the part of Defendant Scroggs? Four, is an amount recovered through a settlement with PSO in separate litigation brought by Plaintiffs for decedent's wrongful death and other claims admissible at trial upon remand to reduce the amount of damages recoverable by Rae Worsham individually in regard to the just mentioned fraud claim should she adequately show entitlement thereto?

¶ 2 We hold the wrongful death claim is foreclosed by the law of the case doctrine and the trial court did not err in so ruling. We also hold the trial court did not err by excluding the testimony of Plaintiffs' factual proximate cause expert, without which Plaintiffs failed to show any damages for pre-suicide emotional distress suffered by either decedent or Rae Worsham individually were proximately caused by any wrongful conduct of Defendants. However, we hold the trial court erred in precluding as a matter of law Rae's individual claim, based on fraud, to recover damages for emotional distress allegedly suffered by her upon learning of apparent fraudulent conduct of Defendant Scroggs concerning the legal representation. We also hold an amount recovered through a settlement with PSO in separate litigation brought by Plaintiffs for decedent's wrongful death and other claims is not admissible at trial upon remand to reduce the amount of damages recoverable by Rae Worsham individually in regard to the just mentioned fraud claim should she adequately show entitlement thereto. The trial court judgment is affirmed in part and reversed in part, the reversal only in so far as the judgment precluded the last mentioned fraud claim of Rae Worsham in her individual capacity.2

FACTUAL BACKGROUND AND PROCEDURAL HISTORY3

¶ 3 Decedent was an employee of PSO. Apparently, in the early 1990s, co-workers began taunting and teasing him about being a bomber. The precipitating event was decedent being accused of making an anonymous telephone bomb threat to PSO and other employees learned of the accusation. No conclusive determination was made as to the perpetrator of the bomb threat and decedent remained in PSO's employ. After the Oklahoma City bombing in 1995 the taunting and teasing appears to have escalated and included likening him to Timothy McVeigh, i.e., a perpetrator of the Oklahoma City bombing.

¶ 4 According to Plaintiffs, the situation at work resulted in decedent having serious mental and emotional problems and, in effect, that his mental and emotional stability steadily declined as a result of the situation. Officials with PSO were notified by decedent of the situation and both decedent and Rae complained to one or more PSO officials about the problem, but the taunting and teasing from co-workers continued. At the May 17, 2004 non-jury trial eventually held in this matter, Rae testified to having no knowledge of anyone at PSO doing any investigation as to the alleged workplace harassment and, even after the aforementioned complaints, her view was that no one at PSO did anything to stop it.

¶ 5 In January 1998 the Worshams retained Scroggs for legal representation. Although Rae testified at trial that she had some contact with Nix during the representation, it was mainly to pass along messages to Scroggs. Nix was not directly involved in representing the Worshams either before or after decedent's suicide.

¶ 6 In essence, Plaintiffs claimed Defendants were retained by decedent and Rae to assist in stopping what they viewed as harassment decedent was experiencing from PSO co-workers, harassment claimed to be in violation of PSO written policy. Rae basically testified at trial that the purpose of the representation did not include the recovery of money. In effect, she testified Scroggs promised to contact PSO concerning the alleged workplace harassment, to threaten PSO with suit if it did not cease and if that did not work, to file some type of suit against PSO in an attempt to stop it. At trial Scroggs denied he was hired by the Worshams to stop the alleged harassment; instead, his understanding was he was hired to file a lawsuit to recover monetary damages for defamation.

¶ 7 Scroggs was retained by a January 29, 1998 written "Contingency Fee Contract" listing decedent as the client, but signed by both decedent and Rae as clients. The contract also indicated decedent had a cause of action arising out of "defamation at PSO" and that the "CLIENTS desire[d] to employ [Scroggs] to prosecute the same to a final settlement or judgment and collection thereof; and ... [Scroggs] consent[ed] to accept such employment...." The contract required a non-refundable retainer of $650 and $75 in court costs to be paid and also contained percentage contingency fee terms. Although plainly an argument could be made the "Contingency Fee Contract" is inconsistent with the view Defendants were retained solely to stop the alleged workplace harassment and not, at least in part, to recover monetary damages, for purposes of our disposition of the issues here we assume as true Rae's recitation of the representation's purpose, i.e., legal assistance in stopping workplace harassment. Also, we recognize that retention to sue for money damages is not inconsistent with the clients desiring assistance and the attorney agreeing to assist in trying to stop taunting and teasing by co-workers through attorney contact with the employer in an effort to resolve the situation.4

¶ 8 Scroggs testified at trial he did contact an unnamed person at PSO he believes was in the human resources (HR) department about his...

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