Power Control Devices, Inc., and Personal Best, Inv., Appellants,
Michael "Mick" W. Lerner and Lerner Law Firm, P.A., Appellees.
BY THE COURT
make a prima facie case for legal malpractice, the plaintiff
must establish (1) the duty of the attorney to exercise
ordinary skill and knowledge, (2) a breach of that duty, (3)
a causal connection between the breach of duty and the
resulting injury, and (4) actual loss or damage.
2. In a
legal malpractice claim, a plaintiff must establish the
validity of the underlying claim by showing that it would
have obtained a favorable judgment in the underlying lawsuit
had it not been for the attorney's error. This is
commonly referred to as proving the "case within a
attorney is an advocate for his or her client and is always
trying to put the best case forward. But in a legal
malpractice claim, an attorney's opinion of the case, the
attorney's pleadings or filings in the case, or even the
attorney's puffing about his or her abilities to prevail,
is not evidence of any of the claims made in the underlying
4. In a
legal malpractice action, to prove what is commonly referred
to as a "case within a case," the plaintiff must
present the case as it would have been presented to a judge
or jury and the fact-finder must make a determination solely
on the evidence presented regarding that underlying case.
This can be done by bifurcating the two parts of the legal
malpractice case. If not bifurcated, there must be a clean
demarcation between the two during the trial with, if a jury
trial, appropriate jury instructions as to each.
Nonexperts cannot give opinions or inferences during trial
that are based on scientific, technical, or other specialized
knowledge. K.S.A. 2017 Supp. 60-456(a).
Where the essential claim of an action against an attorney is
a breach of a duty imposed by law upon the relationship of
attorney/client and not of the contract itself, the action is
from Johnson District Court; David W. Hauber, judge.
Patrick A. Hamilton, of Hamilton Law Firm LLC, of Lenexa, for
C. Morrow, Marshall W. Woody, and Hillary Hyde, of Morrow
Willnauer Church, LLC, of Kansas City, Missouri, for
Arnold-Burger, C.J., Green, J., and Robert J. Frederick,
District Judge, assigned.
order to prevail in a claim of legal malpractice, "a
plaintiff must establish the validity of the underlying claim
by showing that it would have resulted in a favorable
judgment in the underlying lawsuit had it not been for the
attorney's error." Canaan v. Bartee, 276
Kan. 116, 120, 72 P.3d 911 (2003). This is commonly referred
to as proving the "case within a case." Here Power
Control Devices (PCD) hired Michael "Mick" W.
Lerner to represent it in a federal court breach of contract
lawsuit against Orchid Technologies Engineering and
Consulting (Orchid). The federal district court overseeing
the case dismissed it, holding that PCD failed to bring the
claim within the statute of limitations. PCD then sued Lerner
for legal malpractice, alleging that he was negligent by
filing the suit after the statute of limitations had passed.
A jury agreed and awarded damages to PCD.
following the verdict, the district court granted
Lerner's motion for judgment as a matter of law,
overturning the jury verdict in favor of PCD, on the basis
that PCD failed to prove that it would have succeeded against
Orchid at trial. In the alternative, the district court judge
conditionally granted Lerner a new trial based on a separate
instructional error-in case his judgment of no liability was
overturned on appeal. However, the judge did not err when he
ruled in favor of Lerner. The case between PCD and Orchid was
highly technical, yet PCD failed to present any expert
testimony to establish that it would have been successful
against Orchid if its lawsuit against Orchid had been timely.
Accordingly, we affirm the district court's decision
granting judgment as a matter of law to Lerner.
and Procedural History
is an attorney licensed to practice law in Kansas. PCD hired
Lerner to represent it in a lawsuit against Orchid. Now, PCD
is suing Lerner and The Lerner Law Firm for malpractice. In
order to understand the malpractice suit, we begin by
examining the underlying litigation.
case against Orchid is examined.
manufactures electronic devices. Its primary product is servo
amplifiers, which are used to drive motors in products such
as radar systems, cameras, surveillance systems, and weapons
early 2000s, PCD's Israeli representative informed PCD of
an advanced technology that presented a potential business
opportunity worth millions of dollars to PCD if PCD could
design and sell it. The product was a brushless direct
current motor controller used in a missile navigation system.
Another company, ELMO, was already making the controller.
ELMO supplied the controller to Rafael Aerospace, the largest
aerospace company in Israel. Rafael Aerospace provided the
specifications of the controller to PCD. It also provided the
ELMO controller to PCD. PCD attempted to create the
controller on its own but was unsuccessful due to its lack of
technical expertise. As a result, PCD reached out to Orchid,
an engineering firm, to see if Orchid could design the
Allmayer, PCD's vice president of marketing, emailed
Orchid's president Paul Nickelsberg in January 2004 to
begin discussing the project. Eventually, the parties entered
into a contract. The contract provided that Orchid would
design and create a prototype of a brushless DC motor
controller (BLDC1). PCD did not provide the ELMO controller
to Orchid or even show it to Orchid as part of the
negotiations with Orchid. It did not want Orchid to reverse
engineer the ELMO controller, it wanted one made from scratch
based solely from the ELMO specifications.
the contract mentioned three different phases of project
development, it only contained the Phase 1 development plan.
In Phase 1, Orchid was required to provide four BLDC1
prototype circuit boards to PCD. The boards had to be
"assembled, debugged and delivered to [PCD]"
pursuant to a schedule in the contract. There were numerous
specifications in the contract. However, at the time the
contract was written the specifications were still being
developed so the contract specifications were expressly
defined as merely "guidelines." The contract
required PCD to "supply all prototype testing." The
contract did not specify how the prototypes should be tested.
The contract simply stated that Phase 1 would be completed
when Orchid delivered the prototype boards to PCD.
the course of the next few months, Orchid worked on designing
and programming the prototype. At the end of 2004, Orchid
began sending prototypes to PCD. PCD would test them and give
feedback to Orchid about what needed to be adjusted to comply
with the specifications. Orchid ultimately sent four sets of
sent its final prototypes to PCD on March 16, 2005. Orchid
notified PCD that the prototypes were within specification
and that it was ready to move on to the next phase of
development. PCD tested the prototypes on April 4, 2005.
PCD's tests showed that the prototypes were not within
the specifications. Allmayer emailed Nickelsberg that day to
inform Orchid of its test results.
"We took measurements on the BLDC output current, which
I've attached. So far, we haven't been able to verify
the correct gain structure for the BLDC. At the 1 Volt
command, the output shows a gain of approximately 9. Have you
been able to externally verify that the unit ...