Sickler v. Kirby - 19 Neb. App. 286, 805 N.W.2d 675 (2011)

Rule:

In a legal malpractice case, there are three basic components that compose the plaintiff's burden of proof: (1) the attorney's employment; (2) the attorney's neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the client. These elements are the same general elements required in any other case based on negligence, i.e., duty, breach, proximate cause, and damages.

Facts:

In 2001, Plaintiffs Steve Sickler (Steve) and Cathy Mettenbrink (Cathy) hired an attorney, Jeffrey Orr, to represent them in franchising their closely held corporation, Baristas & Friends, Inc. (B & F). After numerous legal issues arose with B & F’s franchisees, Sickler asked Orr to seek a second legal opinion on the legality of B & F’s franchising documents. Orr and his associate, Bradley Holbrook, contracted with another attorney, Robert Kirby (defendant), to critique the documents. Kirby advised Orr and Holbrook that there were numerous serious defects in the franchising documents. When a franchisee then sued B & F, as well as Sickler and Mettenbrink personally, Holbrook represented Sickler and Mettenbrink but hired Kirby to represent B & F. Throughout the proceedings, Kirby only communicated with Holbrook and never had any direct contact with Sickler and Mettenbrink, despite their being B & F’s owners and directors. Kirby never notified Sickler and Mettenbrink, as the sole representatives of B & F, that the franchising documents Orr drafted were seriously flawed. After losing the franchisee suit, Sickler and Mettenbrink sued Kirby for malpractice. Kirby sought and received summary judgment on the argument that he had represented only B & F and that Sickler and Mettenbrink were not in fact his clients. The District Court found that there are "no genuine issues as to any material fact or as to the ultimate inferences that may be drawn from those facts" and that "all legal questions presented, both as to duty and as to proximate cause, must be decided in favor of [the] defendants as a matter of law." No rationale whatsoever for these conclusions is provided. The district court simply sustained the defendants' motion for summary judgment and denied the plaintiffs' motion for summary judgment. Sickler and Mettenbrink appealed.

Issue:

Did District Court err in Granting Summary Judgment in Favor of the Defendants on Claims of B&F?

Answer:

Yes.

Conclusion:

When viewing the evidence in the light most favorable to the plaintiffs, there was concededly an employment of the defendants to defend B&F. There is ample evidence in the record of the defendants' negligence in their representation of B&F, and there is evidence that such damaged B&F. What damages were proximately caused by the defendants' negligence, as distinguished from damages caused solely by the negligence of Jacobsen Orr, is a question of fact. Although we discuss damages in more detail later, suffice it to say that at this juncture, there is evidence that Kirby's negligence was part of the cascade of events that led to B&F's ceasing what had started out as a viable franchising business—at substantial personal financial damage to Steve and Cathy. Consequently, we find that there clearly are genuine issues of material fact regarding damages caused by the defendants. Thus, summary judgment could not be granted against B&F.