the-estate-of-steven-a-bonifer-by-through-cynthia-bonifer-as-personal ( 2014 )

Sin the filififieuti Qtuurt at gppeals
(Eastern fiistritt
DIVISION THREE
THE ESTATE OF STEVEN A. BONIFER, )
BY & THROUGH CYNTHIA BONIFER ) E13101 161
AS PERSONAL REPRESENTATIVE OF )
THE ESTATE OF STEVEN A. BONIFER, ) Appeal from the Circuit Court
) of St. Louis County
Appellant, _ ) 1 iSL—CC02443
)
V. ) Honorable Tom W. DePriest, Jr.
)
KULLMANN KLEIN & DIONENDA, P.C.,)
) Filed: November 18, 2014
Respondent. )
Introduction
Appellant Estate of Steven A. Bonifer (Estate) appeals the trial court’s grant of
summary judgment in favor of Respondent Kullmann Klein & Dioneda, P.C. (KKD), on
the Estate’s claims of breach of fiduciary duty and conspiracy to commit fraud, arising
from KKD’s representation of Steven A. Bonifer (Decedent). Though there is ample
evidence on the record from which the trial court could have found KKD did not fully
comply with its duties owed to the Estate and Decedent; because the Estate failed to
produce evidence that it was actually damaged by KKD’S conduct, we affirm.
Background
In 2006, Decedent retained Steven Dioneda (Lawyer) of KKD to represent
Decedent in a personal injury claim against Wal-Mart. Decedent told Lawyer that he had
been injured while shopping at Wal-Mart when a stack of boxes fell and struck him,
knocking him to the ground. Lawyer obtained Decedent’s medical records and began
settlement negotiations with Wal-Mart. Wal-Mart initially sent an offer of $15,000 in
September of 2007.
On March 21, 2008, Decedent died. Lawyer continued settlement negotiations
with Wal-Mart, stating later that he had authority to do so from Decedent’s surviving
immediate family members: Robin Bonifer (Wife), and Decedent’s two adult daughters.
On July 8, 2008, Lawyer communicated to Wife that he received a final settlement offer
from Wal-Mart of $35,000. Wife informed Lawyer that she and her daughters agreed
they should accept the offer, which Lawyer did on July 31, 2008.
In the meantime, during the week following Decedent’s death, Decedent’s sister,
Cynthia Bonifer (Sister), had called Lawyer and told him that Wife was under
investigation regarding Wife’s potential involvement in Decedent’s death. Sister was
eventually appointed as personal representative of the Estate in April of 2009, several
months after Lawyer had accepted the $35,000 settlement (Settlement) with Wal-Mart.
In March of 2009, KKD filed a claim against the Estate for one third of the
Settlement, which was the portion designated as a contingency fee in KKD’S
representation agreement with Decedent. In June of 2009, the Estate filed a lawsuit
joining both Wal-Mart and KKD as defendants. The suit included a negligence claim
against Wai-Mart for compensation of Decedent’s injuries sustained when the stack of
boxes fell on him. The suit also included claims of legal malpractice, breach of fiduciary
duty, and conspiracy to defraud against KKD, arising from Lawyer’s negotiation and
acceptance of the Settlement after Decedent’s death without involving the personal
representative of the Estate. During discovery, the Estate requested KKD’s entire legal
file related to representation of Decedent. KKD did not turn over the file initially, but the
Estate did receive it sometime before trial, after filing a motion to compel discovery.
In December of 2009, Wa1~Mart filed a motion to enforce the Settlement. The
Estate opposed enforcement of the Settlement, arguing that Lawyer did not have
authority to negotiate and accept the Settlement after Decedent’s death. While Wal-
Mart’s motion was pending, the Estate sent a settlement offer of $54,000, which Wal-
Mart rejected. The trial court eventually denied Wal-Mart’s motion to enforce the
Settlement. Subsequently, the Estate dismissed KKD from the lawsuit because the Estate
determined that KKD was undermining the Estate’s negligence claim against Wal-Mart
by disclosing facts harmful to the Estate’s case. The trial for the negligence claim took
place in April of 201 1. The jury found in favor of Wal-Mart, yielding no recovery for the
Estate.
The Estate filed the present lawsuit against KKD in June of 2011. After two
amendments, the petition contained three counts: Count I for breach of fiduciary duty to
Decedent, Count II for breach of fiduciary duty to the Estate, and Count III for
conspiracy to defraud. KKD moved for summary judgment on all of the Estate’s claims,
which the trial court granted. This appeal follows.
Standard of Review
Our review of summary judgment is essentially de novo. HT Commercial Fin.
Corp. v. Mid—Am. Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993).
Summary judgment is proper where no genuine dispute exists as to any material fact, and
the movant is entitled to judgment as a matter of law. 7 151,, When a trial court grants
summary judgment, this Court may affirm it upon any theory that can be sustained as a
matter of law, even if the trial court reached the summary judgment for different or
insufficient reasons. Guy v. City of St. Louis, 829 S.W.2d 66, 68 (Mo. App. ED. 1992).
Discussion
The trial court’s judgment contained the following findings. Regarding both
counts of breach of fiduciary duty, the trial court found that they could also be
characterized as legal malpractice. Because an element of a claim for breach of fiduciary
duty is that no other tort encompasses the alleged facts, the trial court found that both
claims of breach of fiduciary duty failed as a matter of law. E Klemme v. Best, 941
S.W.2d 493, 496 (Mo. banc 1997) (elements of breach of fiduciary duty claim are: (l)
attorney~client relationship, (2) breach of fiduciary obligation by attorney, (3) proximate
causation, (4) damages to client, and (S) no other recognized tort encompasses facts
alleged). Additionally, regarding the Estate’s claim of breach of fiduciary duty owed to
the Estate, the trial court found that the Estate failed to establish an attorney-client
relationship between KKD and the Estate. Finally, regarding the Estate’s claim for
conspiracy to defraud, the trial court found the claim failed as a matter of law because the
Estate failed to plead an underlying cause of action for fraud. & Envirotech Inc. v.
Thomas, 259 S.W.3d 577, 586 (M0. App. ED. 2008) (underlying tort must be pled with
civil conspiracy claim).
The Estate’s three points on appeal contest the findings related to each of its three
claims in turn. However, because we find the Estate failed to produce non-speculative
evidence of damages regarding all three claims, we affirm the trial court’s grant of
summary judgment on that basis. gee fig, 829 S.W.2d at 68.
Breach of Fiduciary Duty
The Estate’s two claims of breach of fiduciary duty both allege the same facts,
contained in the nearly—identical paragraphs 89 and 98 of the Estate’s second amended
petition. The alleged facts included that KKD breached its duty of loyalty to both
Decedent and the Estate by taking direction from Wife regarding the Settlement,
especially after learning of her potential involvement in Decedent’s death; accepting the
Settlement without authority; withholding Decedent’s legal file from the Estate; and
undermining the Estate’s negligence claim against Wal—Mart by disclosing privileged
information harmful to the Estate.
Damages is an essential element of any breach of fiduciary duty claim. E
Klemme, 941 S.W.2d at 496. Thus, regardless of whether KKD’s conduct constituted a
breach of any duty, and even if the Estate established that KKD had an attorney-client
relationship with both Decedent and the Estate at the relevant times; the Estate still must
show that KKD’s conduct resulted in damages to the Estate.
Here, the Estate alleged the following damages proximater resulted from KKD’s
conduct, laid out identically in both counts of breach of fiduciary duty:
Plaintiff has sustained damages in excess of $25,000.00, as the
Estate’s legal expenses in freeing itself from the legally void
settlement, defending against KKD’s claim in the probate
court, and procuring its own file exceeded $20,000; and the
prosecution of the negligence claim KKD failed to properly
preserve and then intentionally derailed cost in excess of
$100,000.
In sum, the Estate’s alleged damages can be divided into two categories: (1) lost
settlement value of the claim, and (2) legal fees spent avoiding the Settlement and
prosecuting the negligence claim against Wat-Mart.
Regarding the first category of damages, the Estate argues that because KKD
continued settlement negotiations after Decedent’s death and eventually communicated
an acceptance of $35,000, Wal-Mart refused any further negotiations with the Estate, and
thus the Estate’s settlement value was limited to $35,000. The Estate argues this is
shown by the fact that when the Estate later offered a settlement of $54,000, Wal—Mart
rejected that offer, saying that the case had already settled for $35,000.
One measure of damages is the amount the plaintiff would have received “but
for” the attorney’s conduct. Steward v. Goetz, 945 S.W.2d 520, 532 (M0. App. ED.
1997).1 The Estate presented no evidence regarding the settlement value of the claim, but
simply argued it could have obtained a higher settlement had Lawyer not already
finalized the Settlement. The evidence on the record showed that Lawyer’s negotiations
included demands of over $100,000, to which Wal-Mart initially extended a settlement
offer of $15,000. The assertion that the Estate could have negotiated and secured a
settlement more than the $35,000 that Lawyer eventually negotiated rests on speculation,
and was properly deemed insufficient as a matter of law. E Mogley v. Fleming, ll
S.W.3d 740, 747 (M0. App. E.D. 1999)r(where evidence linking injury to attorney’s
1 While Steward addresses the measure of damages in legal malpractice claims, the damage element is the
same as in breach of fiduciary duty claims. & Klemme, 941 S.W.2d at 496 (second and fifth elements of
breach of fiduciary claim are what distinguish that claim from legal malpractice).
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conduct “amounts to mere conjecture and speculation,” plaintiff has not made
submissible case).
Moreover, when the Estate eventually tried its negligence claim against Wal-
Mart, a jury determined that it did not merit any recovery. The Estate argues this fact is
irrelevant to the settlement value of the claim prior to trial and to KKD’S disclosure of
facts harmful to the claim, but we disagree. m Novich V. l—Iusch & Eppenberger, 24
S.W.3d 734, 736-37 (Mo. App. ED. 2000) (where plaintiff claimed damages from failure
to settle, court held plaintiff must prove underlying claim would have been successful).
Thus, the Estate failed to produce non—speculative evidence that it was damaged in the
form of lost settlement value by Lawyer’s negotiation of the Settlement.
The Estate also sought compensation for legal fees it spent avoiding the
Settlement and subsequently prosecuting the claim against Wal-Mart. The Estate argues
it was forced to avoid the Settlement and go to trial due to Lawyer’s improper securing of
the Settlement, and that as a result, the Estate was also forced to join KKD as a defendant
in its prosecution of the negligence claim against Wal-Malt. The Estate argues this in
turn led to expenses in obtaining Decedent’s legal file, as well as KKD’S sabotage of the
Estate’s claim against Wal-Mart.
However, all of these expenses stem from the Estate’s own decision to decline the
Settlement and go to trial against Wal—Mart. Despite any impropriety during negotiation
of the Settlement, the Estate still retained the option to choose to ratify the $35,000
Settlement. The expenses the Estate incurred in choosing instead to avoid the Settlement,
to join KKD as a defendant, and to proceed to trial with Wal-Mart, unfortunately yielded
no return. However, this result cannot be attributed to KKD’s negotiation of a $35,000
settlement on behalf of Decedent. Qt; Day Adver. Inc. v. Devries & Assocs., P.C., 217
S.W.3d 362, 367 (Mo. App. W.D. 2007) (noting that where plaintiff does not show
settlement was necessary to mitigate damages or that if case had not settled, plaintiff
would have been worse off; no damages resulted from attorney’s negligence leading to
settlementz). KKD’s subsequent actions in defending itself in the initial legal malpractice
claim brought by the Estate are the result of the Estate’s choice to bring that claim and to
join it with the negligence claim against Wal-Mart. We are not persuaded by the Estate’s
insistence that it was forced to do so as a result of the $35,000 Settlement because, as
determined above, the Estate has failed to show that it would have achieved a greater
recovery had KKD not negotiated the $35,000 Settlement in the first place. gee 1d,;
NLich, 24 S.W.3d at 736-37.
Finally, we briefly address the Estate’s claim of damages caused by KKD’S
failure to turn over Decedent’s legal file in a timely manner. The Estate is correct that
KKD had a duty to give the Estate access to the Decedent’s legal file. & In re Cupples,
952 S.W.2d 226, 234 (Mo. banc 1997) (client’s files belong to client, not attorney);
Corrigan v. Armstrong, Teasdale, Schlafly, Davis & Discus, 824 S.W.2d 92, 98 (M0.
App. ED. 1992) (attorney is required to turn over to client any documents for which
client has bargained and paid, and to grant access to any work product needed to
understand documents). However, we find no precedent for a party obtaining relief for a
failure to turn over a legal file alone by means of breach of fiduciary duty. E McVeigh
2 While this case and others consistent with it discuss lack of damages from a plaintiff entering a
settlement, we believe the principle can apply here as well in the reverse situation where a plaintiff sought
to avoid a negotiated settlement, though there is no precedent directly addressing such a situation. The
Estate has not shown it was forced to go to trial to mitigate damages, or that it would have been worse off
had it been bound by the Settlement. In fact, the evidence on the record indicates the Estate would actually
have been better off had it accepted the Settlement and not gone to trial.
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v. Fleming, 410 S.W.3d 287, 289-90 (Mo. App. ED. 2013) (noting duty to turn over file
is ethical duty; ordering attorney to bear cost of copying file); Corrigan, 824 S.W.2d at 98
(justification of client’s need for information from file “can be manifested in and
processed by a request for mandatory injunction”). While it may be possible that a cause
of action would lie where the Withholding of the legal file damaged a plaintiff’s case,
because the Estate here has failed to articulate damages proximately resulting from
KKD’S negotiation and acceptance of the Settlement, the Estate is unable to demonstrate
how the deprivation for a time of the contents of that file damaged any of the Estate’s
legal actions.
Therefore, because the Estate failed to produce non-speculative evidence of
damages, and because damages is an essential element of both claims of breach of
fiduciary, the trial court did not err in granting summary judgment in favor of KKD on
both of these claims. Points 1 and II denied.
Conspiracy to Commit Fraud
The Estate argues in its final point on appeal that summary judgment was
improper on its claim of conspiracy to commit fraud. While the parties’ arguments center
on whether the Estate properly pied an underlying tort to accompany the civil conspiracy
claim, an essential element of a claim of civil conspiracy is damage to the plaintiff. _S_e_e
Envirotech, 259 S.W.3d at 586.
The damages alleged in Count HI of the petition are those resulting from the
negotiation and acceptance of the Settlement without approval, Decedent’s medical
expenses and claim for pain and suffering, and Decedent’s legal fees. The Estate cannot
show that Decedent’s medical expenses or pain and suffering were incurred because of
KKD’S actions taken regarding the Settlement after Decedent’s death. Additionally,
because we have found that the Estate failed to produce non—speculative evidence of
damages from KKD’S actions in securing the $35,000 Settlement, this claim fails as well.
Thus, the trial court did not err in granting summaryjudgment in favor of KKD on Count
111 for civil conspiracy. Point 111 denied.
Conclusion
We do not condone an attorney’s breach of any duty owed to a client. E m
Coleman, 295 S.W.3d 857 (Mo. banc 2009) (affirming disciplinary action against
attorney who accepted settlement agreement without consent of client and moved court to
enforce settlement against client’s wishes). However, in order for a client to recover
damages in an action for breach of fiduciary duty, damage to the client must have
proximately resulted from the attorney’s conduct. Here, because the Estate failed to
produce non-speculative evidence of damages resulting from KKD’S negotiation and
acceptance of the Settlement after Decedent’s death, all of the Estate’s present claims fail
as a matter of law. Thus, the trial court did not err in granting KKD’S motion for
summary judgment. We affirm.
Kurt S. Odenwald, P. J ., concurs.
Robert G. Dowd, J12, J., concurs.
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