Veatch v. Beck , 252 Kan. 1081 ( 1993 )

The opinion of the court was delivered by

Abbott, J.:

This is an appeal by Ted Veatch, plaintiff,- from the trial court’s dismissal of his legal malpractice action against the defendant, Terry Beck, who represented Veatch in the un-, derlying disability action. The appeal was transferred on motion from the Court of Appeals to this court, pursuant to K.S.A. 20-3018(c).

On February 27, 1986, Beck filed an action on behalf of Veatch in Shawnee County, Kansas (disability action). Veatch claimed that he has been continuously totally disabled since September 17, 1980, and that he is entitled to disability benefits from KPERS using that date as the onset of his disability. Summary judgment was entered against Veatch on the ground that the action was time barred. The trial court identified December 16, 1985, as the cutoff date.

Beck, on behalf of Veatch, appealed the judgment. The Court of Appeals affirmed in an unpublished per curiam opinion pursuant to Rule 7.042(d) and (e) (1992 Kan. Ct. R. Annot. 35). Petition for review was denied by this court.

Veatch filed the present action in Shawnee County seeking damages from Beck (malpractice action). The action was dismissed on the ground that Veatch failed to state a cause of action against Beck because the disability action was filed timely, notwithstanding the previous judgment to the contrary in the disability case.

The sole question on appeal is whether the district court erred in dismissing Veatch’s malpractice action. Because matters outside the pleadings, including the insurance policy and the judgment in the disability action, were considered by the district court, the court’s disposition will be treated as an entry of summary judgment. See K.S.A. 1992 Supp. 60-212(b). If the parties stipulate to the facts, appellate review of an entry of summary judgment is de novo. Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, Syl. ¶ 2, 829 P.2d 907 (1992).

Veatch’s position is this: First, the judgment entered against him in the disability action is controlling in the present malpractice action and is not susceptible to collateral attack. Second, the judgment entered against him in the disability action is correct. Third, even if the judgment entered against him in the disability action is incorrect, the malpractice action should not have been dismissed because there remain genuine issues of material fact concerning negligence and causation for Beck’s failure to file within the shortest possible time and to provide appropriate arguments and authorities in the trial court or on appeal.

Beck responds that, in this malpractice action, the court is not bound by the judgment in the disability action. He claims that even if the court normally would be bound by the decision in the underlying suit, in this case the court should not be bound because that decision was wrong in that he timely filed the disability action on behalf of Veatch. Beck argues that, if the erroneous judgment controls in the malpractice action, he could be held liable for negligence that he did not commit.

In the disability action, the trial court filed a memorandum decision and order granting the motion of KPERS for summary judgment. The court reasoned that Veatch’s cause of action accrued when his proof of loss was due, 90 days after he became disabled. That date was December 16, 1980. Legal action had to be filed within five years. Thus, the action filed on February 27, 1986, was filed after the limitations period expired on December 16, 1985.

The Court of Appeals affirmed. Its per curiam unpublished opinion states in full:

“After submission of briefs and oral argument on the appeal the court determines that no reversible error of law appears. The opinion, findings of fact, and conclusions of law of the trial court adequately explain the decision. The trial court did not abuse its discretion. Accordingly, we affirm under Rule 7.042(d) and (e) (1988 Kan. Ct. R. Annot. 34).

Supreme Court Rule 7.04 (1992 Kan. Ct. R. Annot. 33, 35) provides that an unpublished opinion has no precedential value “except to support a claim of res judicata, collateral estoppel, or law of the case.” (Emphasis added.)

In the present action, the trial court reasoned that Veatch’s cause of action accrued, according to the disability insurance policy, when his proof of loss was due 300 days after he became disabled. In other respects the reasoning matched that of the disability action court.

The discrepancy springs from the disability action court using one phrase and the malpractice action court using another from the “Written Proof of Loss” provision of the policy. The provision states:

“WRITTEN PROOF OF LOSS

Written proof of loss must be furnished to the Company at its Home Office within 90 days after the termination of the period for which claim is made with respect to any loss for which this section provides any payment contingent upon continuing loss and within 90 days after the date of loss for which claim is made with respect to any other loss.”

The disability action court thought the proof of loss was due 90 days after the loss, and in this action the trial court thought otherwise.

Beck has been involved at every stage. He represented Veatch when the courts concluded that the disability claim was time barred. Beck crafted the arguments in response to which these determinations were made. At the trial court level, he argued in the disability action that “the statute of limitations did not begin to run until there was a breach of contract” and that the breach occurred when KPERS denied the claim on June 30, 1981. This is not the argument he makes in the present case. He failed to bring the legal theory and what he now regards as the controlling authority, Goff v. Aetna Life and Casualty Company, Inc., 1 Kan. App. 2d 171, 563 P.2d 1073 (1977), to the attention of the trial court in the disability action. Beck failed to formulate an argument that was consistent with the provisions of the policy he had been retained to enforce.

In the disability action, Beck filed an eight-page brief with the Court of Appeals that cites Goff for the proposition that the limitations period for an action on installment benefits must be calculated with regard to the due dates of each installment and each corresponding proof of loss. This argument is fine as far as it goes, but it fails to provide the key to the disposition of Veatch’s claim. It fails even to note the lower court used.the wrong phrase from the “Written Proof of Loss” provision. Nor did Beck point out that Goff equates, loss due to continuing disability with loss for which payment is contingent upon continuing loss.

Beck’s position is that the judgment in the disability action should be reexamined because it is incorrect and allowing it to stand exposes him to liability for negligence he did not commit. He argues that “an error-by the attorney is a necessary ingredient in any legal malpractice action.”

An overburdened Court of Appeals panel disposed of the original disability case pursuant to Rule 7.042 and did not set forth that Beck, failed to adequately raise to the trial court those issues upon which he relied on appeal. The rule is well established that a point not raised and presented to the trial court cannot be raised for the first time at the appellate level. State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986).

After the Court of Appeals affirmed the trial court in the original case, Beck filed a two and one-half page petition for review with this court. The petition contained one page of legal argument that did not set forth clearly the issues presented in the malpractice action. This court is well aware of the .fundamental rule that a party cannot raise a point for the first time on appeal. We denied review.

Having failed to raise, the point at trial, it;-could not be raised on appeal; thus, the. trial court erred in allowing Beck to use a point he failed to use in the disability case as a defense in the malpractice action. Having so concluded, we need not address whether the trial court. ;and Court of Appeals .erred in the disability case.

Our reversal does not necessarily mean liability on Beck’s part. The merits of Veatch’s malpractice claim depend on a determination of the. merits of his underlying disability claim. If Veatch is not entitled to benefits for reasons independent of the statute of limitations problem, Beck’s conduct will not be a cause of Veatch’s loss.

Reversed.

Davis, J., not participating.