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Sylvia v. Wisler

United States District Court, D. Kansas

June 19, 2014

CORY SYLVIA, Plaintiff,
v.
JAMES L. WISLER and DAVID TREVINO, Defendants.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

Plaintiff Cory Sylvia ("Plaintiff") seeks monetary damages from his previous attorneys, Defendants James L. Wisler and David Trevino, for alleged legal malpractice and breach of contract. This matter is before the Court on Defendants' Motions to Dismiss (Docs. 9 and 11). For the reasons stated below, Defendants' Motions are granted in part and denied in part.

I. Factual and Procedural Background

This matter arises from Defendants' representation of Plaintiff in a lawsuit against his former employer, Goodyear Tire & Rubber Company ("Goodyear") for wrongful termination. Plaintiff began working for Goodyear in 1983. During his employment, Plaintiff sustained several injuries for which he filed workers' compensation claims. On May 8, 2009, Plaintiff was terminated from Goodyear for allegedly failing to notify his employer of a medically necessary absence, in violation of a "Last Chance Agreement" between Plaintiff and Goodyear. On December 10, 2009, Plaintiff filed an administrative charge with the Equal Employment Opportunity Commission ("EEOC") alleging that his termination violated the Americans with Disabilities Act ("ADA"). On August 17, 2010, Plaintiff was awarded substantial compensation by the Kansas Division of Workers' Compensation for his claims against Goodyear. On March 24, 2011, Plaintiff received a right to sue letter from the EEOC with regard to his claim of disability discrimination.

On March 28, 2011, Plaintiff met with and retained Defendants' law firm, Wisler & Trevino, L.C., to file a lawsuit on his behalf against Goodyear for wrongful termination. Plaintiff alleges that, during this meeting, Defendants orally agreed to file five claims on his behalf: (1) disability discrimination in violation of the ADA, (2) disability discrimination in violation of the Kansas Act Against Discrimination ("KAAD"), (3) violation of the Family Medical Leave Act ("FMLA"), (4) FMLA retaliation, and (5) workers' compensation retaliation. Plaintiff's written contract with Wisler & Trevino, L.C., however, stated as follows:

Cory Sylva has been wrongfully discharged due to disability discrimination and FMLA violation/retaliation and Workers' Compensation retaliation from Goodyear Tire and Rubber on or about May 9, 2009. The firm will file suit in federal court in Kansas on one or more of these claims.[1]

On May 5, 2011, Trevino filed a complaint on Plaintiff's behalf in the United States District Court of Kansas, docketed as Case No. 11-04047-CM-JPO. The complaint set forth three claims: (1) improper interference in violation of the FMLA, (2) discrimination in violation of the FMLA, and (3) discrimination in violation of the KAAD.[2] While not specifically presented as a separate claim, or directly mentioned in any of the included claims, the complaint did generally note that, at the time of his termination, Plaintiff had pending workers' compensation claims against Goodyear.[3]

Sometime after Plaintiff retained Wisler and Trevino, the firm entered the dissolution process. On July 22, 2011, Wisler filed a notice of withdrawal of counsel on behalf of Trevino and entered his own appearance as counsel of record in Case No. 11-04047. The pleading stated in relevant part:

Wisler Law Office L.C. hereby informs the Court that Wisler & Trevino, L.C. is in the process of dissolving and is no longer litigating cases. James L. Wisler is the manager for purposes of dissolution.
Plaintiff has been contacted via mail and has chosen James L. Wisler of Wisler Law Office L.C. to continue representing him.[4]

Nearly simultaneous to this substitution of counsel, Plaintiff received a favorable decision from the Social Security Administration awarding him disability benefits under the Social Security Act. As a result of this decision, Wisler discussed at length with Plaintiff the possibility of dismissing Case No. 11-04047. Plaintiff allegedly requested that Wisler leave the case in court until such time as Plaintiff could find another attorney to pursue the case on his behalf. However, on July 26, 2011, Wisler filed a motion to voluntarily dismiss Case No. 11-04047 without prejudice. According to Plaintiff, Wisler repeatedly reassured him that his claims were well-preserved and could be refiled once Plaintiff secured a new attorney.

On November 10, 2011, a complaint was filed by Plaintiff's new attorney against Goodyear in the United States District Court of Kansas, docketed as Case No. 11-02619-JTM-GLR. The complaint set forth four claims: (1) interference in violation of the FMLA, (2) retaliation in violation of the FMLA, (3) wrongful discharge in violation of the Employee Retirement Income Security Act, and (4) discrimination in violation of the ADA.[5] The complaint did not include a claim for workers' compensation retaliation because, according to Plaintiff, by November 2011, the claim was time-barred.[6]

On March 15, 2012, Goodyear filed a motion for judgment on the pleadings in Case No. 11-02619 alleging that Plaintiff's claim for disability discrimination in violation of the ADA was also time-barred. The court agreed and granted Goodyear's motion.[7] On August 22, 2012, Plaintiff settled all of his remaining claims against Goodyear for a "modest" amount.[8]

On October 16, 2013, Plaintiff filed this claim against Defendants alleging legal malpractice and breach of contract. With regard to the legal malpractice claim, Plaintiff alleges that: (1) Defendants failed to represent him with the reasonable care, skill, and diligence possessed and exercised by an attorney in similar circumstances; (2) Defendants failed to amend the complaint in Case No. 11-04047 to include a claim of workers' compensation retaliation; and (3) Wisler erroneously advised Plaintiff that his claims in Case No. 11-04047 were well-preserved and could be refiled upon the case's voluntary dismissal. Plaintiff simultaneously alleges that Defendants breached their contract with Plaintiff ...


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