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Sylvia v. Wisler

United States District Court, D. Kansas

March 27, 2019

CORY SYLVIA, Plaintiff,



         Before the Court is Defendant David Trevino's Motion for Summary Judgment on Plaintiff's Tort Claim (Doc. 90). Since there is no genuine dispute as to any material fact pertinent to Trevino's motion, and since Trevino did not proximately cause Cory Sylvia's injuries, Trevino is entitled to judgment as a matter of law. For those and the following reasons, the Court grants Trevino's Motion for Summary Judgment.

         I. Factual and Procedural Background[1]

         Defendants James Wisler and David Trevino are attorneys who represented Sylvia. Defendant Xpressions is the entity previously named the Law Offices of James Wisler, L.C. before Wisler retired from the practice of law. This matter stems from Wisler and Trevino's representation of Sylvia on a wrongful discharge claim.

         Sylvia alleges that Goodyear Tire & Rubber Company (“Goodyear”) wrongfully terminated him on May 9, 2009. He received a right to sue letter from the Equal Employment Opportunity Commission on March 24, 2011. On March 28, Sylvia retained Wisler and Trevino's firm to represent him on any claims he may have against Goodyear. That day, Sylvia signed a contract that stated:

Cory Sylvia has been wrongfully discharged due to disability discrimination and [Family and Medical Leave Act] 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.

         On May 5, 2011, Wisler and Trevino filed a complaint on Sylvia's behalf in the United States District Court of Kansas (“Case 1”). The complaint set forth three claims: (1) improper interference in violation of the Family and Medical Leave Act (“FMLA”); (2) discrimination in violation of the Americans with Disabilities Act (“ADA”); and (3) discrimination in violation of the Kansas Act Against Discrimination. While not presented as a separate claim, the complaint specifically stated: “At the time he was terminated, Plaintiff [Sylvia] had workers' compensation issues pending with Defendant [Goodyear].” After the firm filed the complaint, Sylvia called Wisler and asked why a workers' compensation retaliation claim was not included. Sylvia maintains that Wisler assured him over the phone that the other two claims would be filed later.[2]

         Sometime after Sylvia had retained Wisler and Trevino, their firm began the dissolution process. Sylvia elected to have Wisler continue to represent him on Case 1, so Trevino withdrew on July 22. Also around this time, Sylvia received a favorable decision from the Social Security Administration (“SSA”) awarding him disability benefits under the Social Security Act. Because of this decision, Wisler suggested that they move to dismiss the case without prejudice. On July 26, Wisler moved to dismiss the complaint against Goodyear without prejudice. The court granted that motion. Wisler then sent a letter to Sylvia, explaining he could not in good faith argue that Sylvia deserved lost wages since Sylvia was collecting disability benefits from the SSA.

         In November, Sylvia hired different counsel and filed a new case against Goodyear (“Case 2”). The new complaint alleged wrongful discharge based on 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) disability discrimination in violation of the ADA. The Court dismissed Sylvia's ADA claim, finding it was time-barred. Sylvia ultimately settled Case 2 for $12, 000.

         Sylvia filed the complaint against Wisler and Trevino in this case on October 16, 2013. Initially, he asserted claims of both legal malpractice and breach of contract. Wisler and Trevino each filed motions to dismiss. After determining that the case sounded more in contract than tort, this Court granted the motions to dismiss the malpractice claim and denied the motions to dismiss the breach of contract claim. Sylvia then filed an amended complaint naming Xpressions as an additional defendant in the breach of contract claim. Defendants moved for summary judgment on the remaining breach of contract claim, which the Court granted on October 10, 2015.

         Upon appeal, the Tenth Circuit upheld the Court's ruling on the breach of contract claim but overturned the Court's dismissal of the legal malpractice claim, holding that the cause of action is properly classified as a tort. After re-briefing the issues involving the legal malpractice claim, Trevino now moves for summary judgment on Sylvia's tort claim.[3]

         II. Legal Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[4] A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered evidenced permits a reasonable jury to decide the issue in either party's favor.[5] The moving party bears the initial burden of proof and must show the lack of evidence on an essential element of the claim.[6] If the moving party carries this initial burden, the non-moving party that bears the burden of persuasion at trial may not simply rest on its pleading but must instead “set forth specific facts” from which a rational trier of fact could find for the non-moving party.[7] These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits-conclusory allegations alone cannot survive a motion for summary judgment.[8] To survive summary judgment, the non-moving party's evidence must be admissible.[9] The Court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[10]

         Because this is a diversity case, the Court will apply “federal procedural law and the substantive law that would be applied by the forum state.”[11] Choice-of-law rules are substantive for purposes of federal diversity jurisdiction.[12] Since Kansas is the forum state, the Court must apply Kansas choice-of-law rules for torts. Under Kansas choice-of-law rules, the lex loci delicti doctrine requires the Court to apply the law of the state where the wrong occurred.[13] Where the wrong occurred is where the injury was suffered.[14] Here, Sylvia alleges that Trevino's tortious conduct and Sylvia's resulting injury occurred in Kansas. Thus, Kansas law governs Sylvia's tort claim.

         Under Kansas law, “in order to prevail on a claim of legal malpractice, a plaintiff is required to show (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.”[15] “In addition to those four elements, to prove legal malpractice in the handling of litigation, 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.”[16] Particularly relevant to this motion, “causation in a claim of professional malpractice is determined according to the same principles of proximate cause governing any negligence action.”[17] Proximate cause is “that cause which in [a] natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.”[18]

         III. Analysis

         Trevino argues that he is entitled to judgment as a matter of law under two theories. First, Trevino argues that his omissions did not proximately cause Sylvia's injury. Second, Trevino argues that the Adequate Alternative Remedy doctrine would have precluded Sylvia's recovery under a workers' compensation retaliation claim. The parties do not controvert the facts underlying Trevino's argument that he was not the proximate cause of Sylvia's injuries.[19] Because the Court concludes that there is no proximate cause between Trevino's actions and Sylvia's injuries, the Court will not consider Trevino's arguments pertaining to the adequate alternative remedy doctrine.

         Under his first theory, Trevino argues that Sylvia waived the right to bring a workers' compensation claim within the statute of limitations and that this waiver constituted an efficient intervening cause that negates proximate cause and relieves Trevino of liability. Specifically, Trevino alleges that Sylvia waived the retaliation claim by either voluntarily dismissing Case 1 without amending the complaint or failing to bring that claim in Case 2. For the purposes of this motion, the Court need not, and cannot, determine whether Wisler, or Sylvia's subsequent counsel in Case 2, should have respectively amended the complaint or brought a workers' compensation relation claim. It is enough that one of these two parties could have acted; since neither did, Trevino alleges that either omission was an efficient intervening cause.

         Sylvia alleges that Wisler acted against his wishes in voluntarily dismissing Case 1. That potential discrepancy is irrelevant to this motion, however, because Trevino ceased to represent Sylvia before Case 1 was voluntarily dismissed. Additionally, K.S.A. § 60-518 permits a party to re-file an action within six months if it was originally brought within the statute of limitations and subsequently voluntarily dismissed after the statute of limitations. Sylvia failed to bring a retaliation claim in Case 2, which was otherwise filed within the six-month window. Trevino argues that Sylvia's failure to file a workers' compensation retaliation claim in Case 2 constitutes the second possible efficient intervening cause.

         Trevino's arguments hinge on whether a theoretical amendment by Sylvia adding a workers' compensation retaliation claim would have related back to the original complaint for purposes of the statute of limitations. If an amendment would not have related back, then Sylvia could not have waived his right to bring a retaliation claim. As such, the Court will first address whether an amended complaint would have related back. If an amended complaint would have related back, then the Court will determine if an efficient intervening cause relieves Trevino of liability.

         A. An Amended Complaint Adding a Workers' Compensation Retaliation Claim would have Related Back to the Original Complaint

         1. The Original Complaint was Brought Within the Statute of Limitations but Failed to State a Prima Facie Case for Workers' Compensation Retaliation

         Trevino first argues that the original complaint stated a prima facie case for retaliation. It is uncontroverted that the statute of limitations for a workers' compensation retaliation claim ran on May 8, 2011, two years after Goodyear fired Sylvia. It is also uncontroverted that the original complaint was filed on May 5. Therefore, if the original complaint stated a facially plausible claim for workers' compensation retaliation, then that claim was brought within the limitations period. The elements of a prima facie case for workers' compensation retaliation are: (1) The plaintiff filed a claim for workers' compensation benefits or sustained an injury for which he might assert a future claim for such benefits; (2) the employer had knowledge of the plaintiff's workers' compensation claim injury; (3) the employer terminated the plaintiff's employment; and (4) a causal connection existed between the protected activity or injury and the termination.[20]

         In this case, the original complaint did not state a prima facie case for workers' compensation retaliation. While the complaint did not have to clearly allege a workers' compensation retaliation claim, it needed to allege enough facts to establish the elements of such a claim. The complaint did state: “At the time he was terminated, [Sylvia] had workers' compensation issues pending with [Goodyear].” However, nowhere else were the workers' compensation claims mentioned. Furthermore, no facts were alleged that attempted to establish a link between Sylvia's workers' compensation claims and Goodyear's termination of his employment. While the complaint might have contained enough facts to establish a workers' compensation retaliation claim for the first three elements, it lacked factual allegations for the fourth and final element, causation. As a result, the original complaint failed to state a prima facie case for workers' compensation retaliation.

         2. An Amended Complaint adding a Workers' Compensation Retaliation Claim would have Related ...

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