Sylvia v. Wisler , 875 F.3d 1307 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
November 22, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
CORY SYLVIA,
Plaintiff - Appellant,
v. No. 15-3284
JAMES L. WISLER; DAVID
TREVINO; XPRESSIONS, L.C.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:13-cv-02534-EFM-TJJ)
Submitted on the briefs: *
Alan V. Johnson of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C.,
Topeka, Kansas, for Plaintiff-Appellant.
Steven R. Smith, Gates Shields Ferguson Hammond, P.A., Overland Park, Kansas,
for Defendants-Appellees James L. Wisler and Xpressions, L.C.
Daniel F. Church of Morrow Willnauer Klosterman Church, Kansas City,
Missouri, for Defendant-Appellee David Trevino.
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
HOLMES, Circuit Judge.
This case presents a difficult question of Kansas law: when do legal
malpractice claims involving a failure to act sound in tort rather than contract?
Kansas, like other states, distinguishes between legal malpractice claims. Some
sound in contract. Others sound in tort. Generally, breach of a specific
contractual provision or agreement to do a certain action sounds in contract, while
breach of a duty imposed by law on attorneys by virtue of the attorney-client
relationship sounds in tort. But the line separating failure to perform an agreed-
upon action from breach of a duty imposed by law is not always bright.
Here, the plaintiff, Cory Sylvia, sued his former attorneys, James L. Wisler
and David Trevino, for legal malpractice allegedly sounding in tort and breach of
contract arising from their representation of Mr. Sylvia in a suit for wrongful
termination against Goodyear Tire & Rubber Co. (“Goodyear”), his former
employer. Later, Mr. Sylvia amended his complaint to add as a defendant
Xpressions, L.C. (“Xpressions”), a limited liability company formerly known as
the Wisler Law Office, L.C.
Mr. Sylvia’s initial complaint characterized his claims as sounding both in
tort and in contract. Specifically, he faulted (1) both individual defendants for
2
failing to include in, or to later amend, his complaint to aver a workers’
compensation retaliation claim; and (2) solely Mr. Wisler for voluntarily
dismissing Mr. Sylvia’s case on the erroneous belief that all claims could be
refiled, causing one of his claims to become barred by the statute of limitations.
For each of these claims, Mr. Sylvia advanced both tort and contract theories of
liability.
Messrs. Wisler and Trevino each filed Federal Rule of Civil Procedure
12(b)(6) motions to dismiss, which were granted in part and denied in part. The
court granted dismissal of the legal malpractice claims—allegedly sounding in
tort—holding that the claims were not properly characterized as torts and merely
duplicated the breach of contract claims. The court allowed the breach of
contract claims to go forward. On motions for summary judgment by Mr. Trevino
and by Mr. Wisler and Xpressions, filing jointly, the court granted both motions,
disposing of the remaining contract claims and the case.
Mr. Sylvia appeals from both the district court’s dismissal of his alleged
tort claims and its grant of summary judgment for the defendants on the breach of
contract claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, 1 we hold
1
On July 1, 2016, this court ordered the parties to file a joint response
to state the citizenship of Messrs. Wisler and Trevino and all members of
Xpressions at the time that proceedings commenced in the district court. Mr.
Sylvia’s amended complaint had failed both to make clear the state of domicile of
Mr. Wisler, as well as to indicate the citizenship of all members of Xpressions.
(continued...)
3
that, under Kansas law, Mr. Sylvia has alleged that defendants breached a duty
imposed by law in the context of their attorney-client relationship; such claims
sound in tort. Accordingly, for reasons further detailed infra, we reverse in part
and vacate in part the district court’s judgment dismissing Mr. Sylvia’s legal
malpractice claims. However, regarding the district court’s grant of summary
judgment for the defendants on the breach of contract claims, we affirm. We
remand the case for further proceedings not inconsistent with this opinion.
I. BACKGROUND
Mr. Sylvia’s claims against Messrs. Wisler and Trevino arose from a
lawsuit against Goodyear for wrongful termination in which the defendants
represented Mr. Sylvia. Mr. Sylvia had sustained repeated injuries working for
Goodyear. He filed multiple workers’ compensation claims for those injuries but
was fired when he allegedly failed to report a medically necessary absence in
violation of a “Last Chance Agreement” Mr. Sylvia had entered into with
Goodyear. Aplt.’s App. at 11–13 (Compl., dated Oct. 16, 2013). After his firing,
1
(...continued)
In response, the parties clarified to our satisfaction that all the defendants and all
members of Xpressions are citizens of Kansas. Because Mr. Sylvia is a citizen of
Massachusetts, the requirements of diversity jurisdiction are met. See, e.g.,
Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014) (“Congress has
authorized the federal district courts to exercise jurisdiction over certain cases
between citizens of different states. 28 U.S.C. § 1332(a)(1). But such diversity
jurisdiction exists only if no plaintiff and no defendant are citizens of the same
state—that is, there must be ‘complete diversity between all plaintiffs and all
defendants.’” (quoting Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005))).
4
Mr. Sylvia filed a charge with the Equal Employment Opportunity Commission
alleging that his termination violated the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101–213, and later received a notice of right to sue.
Between filing the charge and receiving the notice of right to sue, Mr. Sylvia
received an award from the Kansas Division of Workers’ Compensation for his
claims against Goodyear.
Shortly after receiving the notice of right to sue, Mr. Sylvia retained Wisler
& Trevino, L.C., the defendants’ former law firm, to represent him in a wrongful
termination suit against Goodyear. Mr. Sylvia signed a written contract with
Wisler & Trevino, L.C., that stated in part:
Cory Sylvia has been wrongfully discharged due to disability
discrimination and FMLA [i.e., Family and Medical Leave Act,
29 U.S.C. §§ 2601–54] violation/retaliation and Workers
Compensation retaliation from GoodYear Tire and Rubber
Company on or about May 9, 2009. The firm will file suit in
federal court in Kansas on one or more of these claims.
Aplt.’s App. at 132 (Wisler & Xpressions’ Mem. Supp. Mot. Summ. J., dated
Mar. 5, 2015) (emphasis added). Mr. Sylvia alleges that before or at the time the
contract was executed, he was assured by Messrs. Wisler and Trevino that all five
claims discussed by the parties would be brought against Goodyear. 2 The
2
Not entirely apparent from the face of the contract, the five claims
are: disability discrimination under both the ADA and the Kansas Act Against
Discrimination, a violation of the FMLA, FMLA retaliation, and workers’
compensation retaliation. See id. at 67 (Mem. & Order, dated June 19, 2014).
5
complaint filed by Mr. Trevino, however, omitted both retaliation claims (i.e.,
FMLA retaliation and workers’ compensation retaliation).
Further, Mr. Sylvia avers that after the lawsuit was filed he received a copy
of the complaint and—alerted to the fact that his attorney had included only three
of the claims—raised the issue of the missing retaliation claims with Mr. Wisler,
who allegedly responded: “[W]e had to file these three claims first, but we will
file the other two claims later.” Id. at 191 (Pl.’s Mem. Opp’n Mot. Summ. J.,
dated Apr. 7, 2015). Mr. Sylvia asserts that, in relying on Mr. Wisler’s statement,
he did not insist that the written contract be modified to require the filing of all
five claims.
During the course of the underlying litigation, Messrs. Wisler and Trevino
dissolved their partnership, and Mr. Sylvia chose Mr. Wisler to continue the
representation; Mr. Trevino withdrew. About the same time, the Social Security
Administration determined that Mr. Sylvia was disabled and so eligible for
disability benefits beginning April 1, 2009—over a month before he was
discharged by Goodyear on May 8, 2009. As a result, Mr. Wisler believed that he
could not argue in good faith that Mr. Sylvia had a good claim or had suffered
substantial damages.
According to Mr. Sylvia, around this time he and Mr. Wisler had multiple
conversations regarding the possibility of voluntarily dismissing the case against
Goodyear. Mr. Sylvia allegedly asked Mr. Wisler multiple times not to dismiss
6
so that Mr. Sylvia could find other counsel to prosecute the case. But Mr. Sylvia
says that Mr. Wisler repeatedly assured him that he would be able to refile all of
the claims. Allegedly relying on those assurances, Mr. Sylvia consented to the
voluntary dismissal of his case.
Mr. Sylvia retained new counsel who filed suit in the District of Kansas
against Goodyear for (1) interference in violation of the FMLA, (2) FMLA
retaliation, (3) wrongful discharge in violation of the Employee Retirement
Income Security Act (“ERISA”), 29 U.S.C. §§ 1000–461, and (4) disability
discrimination in violation of the ADA. However, on April 26, 2012, Mr.
Sylvia’s claim for disability discrimination under the ADA was dismissed as
time-barred because state tolling and savings statutes do not apply to ADA
claims, which must be filed within 90 days of receiving a notice of right to sue.
Mr. Sylvia settled his remaining claims against Goodyear for $12,000.
On October 16, 2013, Mr. Sylvia brought suit against Messrs. Wisler and
Trevino in the District of Kansas for allegedly tortious conduct and breach of
contract. Before answering the complaint, Messrs. Wisler and Trevino moved to
dismiss the claims against them for failure to state a claim. The district court
granted in part the motions to dismiss, dismissing the legal malpractice claims
that Mr. Sylvia asserted sounded in tort, while permitting the contract claims to
proceed.
In doing so, the district court held that Mr. Sylvia had failed to state a
7
facially plausible claim that the defendants violated a duty imposed by law and
thus committed a tort. Mr. Sylvia then moved to amend his complaint to add
Xpressions, formerly Wisler Law Office, L.C., as a defendant. He conformed his
amended complaint to the district court’s dismissal order by omitting the alleged
tort claims.
After limited discovery, the defendants moved for summary judgment on
the remaining contract claims. The district court granted the defendants’ motions
for summary judgment, dismissing the remaining contract claims. The court
rejected Mr. Sylvia’s arguments, and held, inter alia, (1) that the parol evidence
rule barred evidence of oral statements before or contemporaneous with the
execution of the written contract; (2) that Mr. Sylvia had failed to show a
subsequent oral agreement supported by consideration; and (3) that the voluntary
dismissal of the underlying case did not breach the terms of the written contract
or any other contractual obligation.
Mr. Sylvia now appeals from the district court’s dispositions of the motions
to dismiss and the motions for summary judgment. We examine each set of
motions in turn, beginning with the district court’s granting of the motions to
dismiss for failure to state a claim as to Mr. Sylvia’s alleged tort claims, before
turning to the granting of the summary judgment motions in favor of the
defendants on Mr. Sylvia’s contract claims.
II. DISCUSSION
8
As to the claims at issue here, we note at the outset that “[b]ecause the
district court’s jurisdiction was based on diversity of citizenship, [Kansas]
substantive law governs . . . . This court must therefore ‘ascertain and apply
[Kansas] law with the objective that the result obtained in the federal court should
be the result that would be reached in [a Kansas] court.’” Brady v. UBS Fin.
Servs., Inc., 538 F.3d 1319, 1323 (10th Cir. 2008) (citation omitted) (quoting
Blanke v. Alexander, 152 F.3d 1224, 1228 (10th Cir. 1998)). “To properly
discern the content of state law, we ‘must defer to the most recent decisions of the
state’s highest court.’” Kokins v. Teleflex, Inc., 621 F.3d 1290, 1295 (10th Cir.
2010) (quoting Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.
2003)). However, stare decisis requires that we be “bound by our own prior
interpretations of state law” “unless an intervening decision of the state’s highest
court has resolved the issue.” Id. (quoting Wankier, 353 F.3d at 866).
A. Dismissal of Mr. Sylvia’s Alleged Tort Claims
This court reviews “de novo the district court’s granting of a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).” Albers v. Bd. of Cty.
Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014) (quoting Slater v. A.G. Edwards &
Sons, Inc., 719 F.3d 1190, 1196 (10th Cir. 2013)). To overcome a motion to
dismiss, “a complaint must plead facts sufficient ‘to state a “claim to relief that is
plausible on its face.”’” Slater, 719 F.3d at 1196 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). “[W]e must accept all the well-pleaded allegations of the
9
complaint as true and must construe them in the light most favorable to the
plaintiff.” Albers, 771 F.3d at 700 (quoting Cressman v. Thompson, 719 F.3d
1139, 1152 (10th Cir. 2013)). “[T]he Rule 12(b)(6) standard doesn’t require a
plaintiff to ‘set forth a prima facie case for each element.’” George v. Urban
Settlement Servs., 833 F.3d 1242, 1247 (10th Cir. 2016) (quoting Khalik v. United
Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012)). “[A] claim is facially plausible
if the plaintiff has pled ‘factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” Id.(quoting Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014)).
On appeal, Mr. Sylvia argues that his complaint stated facially plausible
claims for legal malpractice sounding in tort against Messrs. Wisler and Trevino.
Specifically, he argues that the district court erred by not recognizing that he had
properly pleaded claims for malpractice sounding in both tort and breach of
contract, which is permitted under Kansas law. He further argues that these tort
claims are based on violations of a duty imposed by law by virtue of the attorney-
client relationship, independent of obligations arising under the contract. Messrs.
Wisler and Trevino respond that the district court was correct in its holding and
that Mr. Sylvia’s claims most closely resemble the kind found in Juhnke v. Hess,
506 P.2d 1142 (Kan. 1973), where the Supreme Court of Kansas held that an
attorney’s failure to file an appeal where he had been employed for that very
purpose sounded in contract rather than tort.
10
Because the same principles of Kansas law apply to the dismissal of the
claims against Messrs. Wisler and Trevino, we first analyze the Kansas caselaw to
establish the relevant legal principles before applying them to these claims.
1. Kansas Caselaw Characterizing Legal Malpractice Claims
Under Kansas law, “[l]egal and medical malpractice generally constitute both a
tort and a breach of contract.” Pancake House, Inc. v. Redmond, 716 P.2d 575, 578 (Kan.
1986). However, Kansas cases distinguish tort and contract malpractice claims by asking
“whether the actions or omissions complained of constitute a violation of duties imposed
by law, or of duties arising by virtue of the alleged express agreement between the
parties.” Id. (citing Malone v. Univ. of Kan. Med. Ctr., 552 P.2d 885, 888–89 (Kan.
1976) (holding that a complaint stated a claim for tortious medical malpractice rather than
breach of contract where the gravamen of the complaint was failure “to provide
necessary, complete, competent, and authorized treatment” (emphasis omitted))).
The leading Kansas case on the characterization of legal malpractice claims,
Pancake House, offers the following guidance:
A breach of contract may be said to be a material failure of
performance of a duty arising under or imposed by agreement. A tort,
on the other hand, is a violation of a duty imposed by law, a wrong
independent of contract. Torts can, of course, be committed by parties
to a contract. The question to be determined here is whether the actions
or omissions complained of constitute a violation of duties imposed by
law, or of duties arising by virtue of the alleged express agreement
between the parties.
. . . Where the act complained of is a breach of specific terms of
the contract without any reference to the legal duties imposed by law
11
upon the relationship created thereby, the action is contractual. Where
the essential claim of the action is a breach of a duty imposed by law
upon the relationship of attorney/client and not of the contract itself, the
action is in tort.
....
While other jurisdictions are divided as to whether legal
malpractice may be categorized as a cause of action in tort or one in
contract, Kansas has held that where a legal duty is imposed by law, the
cause of action is in tort. Where the malpractice involves failure to
perform a contractual obligation, whether express or implied, the cause
of action is in contract.
716 P.2d at 578 (citations omitted); accord Kan. Pub. Emps. Ret. Sys. v. Reimer & Koger
Assocs., Inc., 936 P.2d 714, 718 (Kan. 1997) (quoting same). Compare W. Page Keeton
et al., PROSSER AND KEETON ON TORTS § 92, at 656 (5th ed. 1984) (noting that “[c]ontract
obligations” are those “based on the manifested intention of the parties to a bargaining
transaction”), with id. (“Tort obligations are in general obligations that are imposed by
law on policy considerations to avoid some kind of loss to others. They are obligations
imposed apart from and independent of promises made and therefore apart from any
manifested intention of parties to a contract or other bargaining transaction.”).
As in other jurisdictions, Kansas courts most commonly have addressed legal
malpractice claims that sound in tort. See Pancake House, 716 P.2d at 578 (identifying
one Kansas Supreme Court case in which claims sounded in contract and noting that
“[n]ot all malpractice actions in Kansas may be deemed tort actions”); Roy Ryden
Anderson & Walter W. Steele, Jr., Fiduciary Duty, Tort and Contract: A Primer on the
Legal Malpractice Puzzle, 47 SMU L. REV. 235, 236 (1994) (noting that “the action for
12
negligence is the most common and well-developed form for a malpractice claim”).
“Lawyers, like other professionals, are required to have and exercise the learning and skill
ordinarily possessed by members of their profession in the community.” Bowman v.
Doherty, 686 P.2d 112, 120 (Kan. 1984). “[W]hen the attorney’s performance falls short
of that expected of an ordinary, reasonably prudent lawyer, the attorney is guilty of the
tort of malpractice.” Anderson & Steele, supra, at 245; see Pancake House, 716 P.2d at
578 (noting that “[w]here the essential claim of the action is a breach of a duty imposed
by law upon the relationship of attorney/client[,] . . . the action is in tort”).
In this regard, in a host of cases, the Kansas courts have determined that
malpractice actions sounded in tort, where the claims alleged that attorneys failed to
properly perform their professional duties imposed on them by law in the context of the
attorney-client relationship. For example, in Pancake House, attorneys who had
previously represented a corporation filed suit against the corporation on behalf of certain
of its shareholders; Kansas’s high court held that the corporation’s malpractice claim
sounded in tort because the obligation allegedly breached was “not a part of any express
or implied contract,” but instead stemmed from “a legal duty [] imposed by law.” 716
P.2d at 578. The legal duty at issue related to the circumstances under which an attorney
is prohibited from suing a business for whom she had previously provided legal services.
Id. at 577–78. In effect, the plaintiff claimed that the attorney defendants had “breach[ed]
a duty imposed by law upon the relationship of attorney/client” by their allegedly
improper actions. Id.
13
Likewise, in Kansas Public Employees Retirement System, the Kansas Supreme
Court held that a failure “to provide sound and appropriate legal services” or “failing to
properly advise” in relation to investment transactions sounded in tort rather than
contract. 936 P.2d at 718–19 (emphases added). In Canaan v. Bartee, that court affirmed
a district court judgment that the malpractice claims of a criminal defendant against his
court-appointed attorneys and their investigator for his wrongful conviction sounded in
tort where “the gravamen of [the] lawsuit [was] that his appointed public defenders and
their investigator were negligent in providing services.” 72 P.3d 911, 913, 921 (Kan.
2003).
Additionally, in Jeanes v. Bank of America, N.A.—a case cited by all parties—the
Kansas Court of Appeals held that a trust and estate attorney’s failure to provide legal
advice in estate-planning services that would have saved millions in estate tax liability
was not a breach of any specific contractual provision and instead sounded in tort as a
failure “to exercise ordinary skill and knowledge in giving legal advice.” 191 P.3d 325,
331 (Kan. Ct. App. 2008), aff’d on other grounds, 295 P.3d 1045, 1047, 1053 (Kan.
2013) (per curiam). Earlier, the Kansas Court of Appeals had also held, in Chavez v.
Saums, that an attorney’s conflicted representation in filing suit against a former client
breached a “legal dut[y] imposed by law upon the relationship” between the lawyer and
client, rather than any “specific terms of the contract.” 571 P.2d 62, 65 (Kan. Ct. App.
1977). The court therefore held that the former client’s claims against the attorney arising
from the conflicted representation sounded in tort. Id.14
On the other hand, in limited instances, the Kansas courts have classified
malpractice actions as sounding in contract. A clear example in this regard is the Kansas
Supreme Court’s decision in Juhnke v. Hess. There, an attorney was expressly retained to
file an appeal and failed to do so, resulting in his client’s right to appeal becoming time-
barred. See 506 P.2d at 1143. The Supreme Court of Kansas held that this constituted
“breach of a specific contract—failure to do that which [the attorney] expressly agreed to
perform.” Id. at 1145 (noting that “the claim for relief [was one for breach of an express]
unwritten contract”).
Moreover, in an instructive opinion, the Kansas Court of Appeals applied Juhnke
to conclude that the plaintiff’s claim against the attorney and law firm that handled a
domestic relations matter for her sounded in contract. Pittman v. McDowell, Rice &
Smith, Chartered, 752 P.2d 711, 718 (Kan. Ct. App. 1988). As in Juhnke, the attorney
failed to perform an expressly bargained-for task in carrying out the representation.
“While the attorney in Juhnke neglected to perform the initial duty in his contractual
representation (failure to file a notice of appeal), [the attorney in Pittman] neglected to
perform the final duty in his contractual representation (failure to file a journal entry
setting forth an agreed child support order).” Id. More specifically, the court reasoned:
[The attorney] was employed to file a motion for child support,
obtain service on [the plaintiff’s ex-husband], and obtain a child
support order.
. . . The only thing [the attorney] failed to do was to prepare
and file a journal entry which would have completed his express
agreement for services to [the plaintiff].
15
We hold [the attorney] has failed to perform a duty arising under
or imposed by agreement, which is in contract . . . .
Id.Pittman underscores Juhnke’s message that claims sounding in contract typically
involve bargained-for promises by attorneys to perform certain actions—whether those
actions are concentrated at the outset of the representation, as in Juhnke, or are just
particular steps during the journey of the representation to a definite destination, as in
Pittman. See Anderson & Steele, supra, at 251 (“The core ingredient of a contract action
by a client against his attorney is breach of promise by the attorney. Accordingly, the
client must plead and prove by a preponderance of the evidence breach of a promise, as
well as the other basic ingredients of a contract cause of action, such as foreseeability,
causation, and damages.”); id. at 244–45 (“[A] suit between a client and his lawyer may
be based on a breach of contract without raising issues of negligence or violation of the
attorney’s fiduciary obligations. In such cases, the allegation is simply that the attorney
did not do what the contract, by expression or implication, said that he would do.”); see
also Keeton et al., supra, § 92, at 658 (“When one makes a promise—a commitment as to
what he will do or will not do in the future—this generally induces reasonable reliance
. . . . But contractual liability can be regarded as limited to the type of case where
promises are found to be enforceable, and the damage results from the breach of an
enforceable promise.”).
Thus, in contrast to claims sounding in tort, the focus of these claims sounding in
16
contract is not whether the attorney “exercise[d] the learning and skill ordinarily
possessed by members of their profession in the community,” or even whether the
attorney offered unenforceable assurances regarding her performance. Bowman, 686 P.2d
at 120; cf. Keeton et al., supra, § 92, at 659 (“[I]n some situations when one undertakes to
act he may be doing so under circumstances where, apart from the contract that he
makes, there should be a duty to exercise reasonable care to others whose economic
interests are likely to be affected by the way the conduct is performed. This is especially
true of representations made to a client by a lawyer . . . .” (emphases added)).
All that said, we acknowledge that “legal malpratice actions often fall on th[e]
‘borderland of tort and contract,’” Anderson & Steele, supra, at 266 (quoting William
Lloyd Prosser, The Borderland of Torts and Contract, in SELECTED TOPICS ON THE LAW
OF TORTS 380 (1953)), and that “[t]he distinction between tort and contract liability” may
be a “difficult distinction to make,” Keeton et al., supra, § 92, at 655; see Hunt v. KMG
Main Hurdman, 839 P.2d 45, 46 (Kan. Ct. App. 1992) (“The determination of whether a
particular action is based on contract or in tort is not always an easy one.”). In clarifying
and illuminating the metes and bounds of this “borderland” in Kansas law, we consider a
careful examination of the Kansas Supreme Court’s decision in Bowman helpful. This is
especially so because, at least at first blush, Bowman might appear to be akin to Juhnke
and Pittman, where the Kansas courts concluded that the claim at issue sounded in
contract; yet, in Bowman, the Kansas Supreme Court concluded that the claim sounded in
tort.
17
Specifically, in Bowman, the plaintiff, Michael Bowman, retained an attorney,
defendant Harold Doherty, to represent him in connection with a charge of passing a
worthless check. See 686 P.2d at 115. Mr. Bowman was out of town and unable to
appear for his initial court date when he retained Mr. Doherty, who told Mr. Bowman he
would “take care of the matter.” Id. Despite arranging with a deputy district attorney for
a continuance, Mr. Doherty failed to arrange a continuance with the trial court. See id.
Thereafter, a bench warrant was issued for Mr. Bowman, and he later received a letter
from the sheriff’s office notifying him that he was in contempt of court for failure to
appear. See id. at 115–16. Mr. Bowman called Mr. Doherty and met with him regarding
the letter, and Mr. Doherty again assured Mr. Bowman that he would take care of the
matter. See id. at 116. Mr. Bowman was arrested a month later for aggravated failure to
appear. See id. After Mr. Bowman was released from jail, he and his father met with Mr.
Doherty, who agreed to represent Mr. Bowman in both cases (i.e., the worthless-check
and failure-to-appear cases). See id. Toward the end of resolving the cases, Mr. Doherty
advised Mr. Bowman that he needed to appear before the court and promised Mr.
Bowman that he would be there with him. Mr. Doherty thereafter scheduled the court
date. Mr. Bowman and his father appeared on that date; Mr. Doherty did not. See id.
Mr. Bowman thereafter hired a new lawyer and resolved both of his cases. See id.
Mr. Bowman then sued Mr. Doherty for both legal malpractice and breach of
contract. See id. at 115. As relevant here, the jury rendered a verdict in Mr. Bowman’s
favor and awarded him damages, including punitive damages. See id. at 117. Mr.
18
Doherty appealed from the jury’s verdict on the grounds that Mr. Bowman’s claim
sounded solely in contract and therefore punitive damages were not available. See id. at
117, 120. At the outset, the Supreme Court of Kansas concluded that the trial court
“correctly” denied Mr. Doherty’s motions for directed verdicts upon “determining that
both a legal and contractual obligation could have been breached.” See id. at 120
(emphasis added). However, the court upheld the punitive damages award under the view
that the jury ultimately determined that Mr. Doherty was negligent. Id. at 117, 120. That
is, the punitive damages award was permissible because the “action sounded in tort” (i.e.,
stemmed from the breach of a legal duty). Id. at 120.
Yet, the claims at issue in Bowman—at least on a superficial level—arguably
resemble the claims in Juhnke and Pittman, which the Kansas courts held sounded in
contract. In this regard, like the attorneys in those two cases, Mr. Doherty made
assurances to Mr. Bowman that he would take certain steps in the representation and then
failed to accomplish them. See Bowman, 686 P.2d at 115–16. However, unlike Juhnke
and Pittman, there was no indication in Bowman that Mr. Doherty’s assurances were
enforceable—viz., that they constituted enforceable contracts. Specifically, Mr. Doherty
agreed to represent Mr. Bowman in his pending worthless-check case and the later case
for failure to appear but did not explicitly contract with Mr. Bowman to undertake any
particular steps in the representation; instead, Mr. Doherty repeatedly said he would “take
care of” things and offered general, naked assurances to this effect, on which he did not
follow through. Bowman, 686 P.2d at 115–16. Thus, Mr. Doherty’s failure to perform
19
certain promised acts in his representation of Mr. Bowman did not have the effect under
the circumstances there of breaching any specific terms of their attorney-client contract.
Instead, insofar as the particular acts were important to the representation and would have
been performed by a lawyer possessing ordinary learning and skill, Mr. Doherty’s failure
to undertake them breached his professional duty to his client3—a duty imposed by law.
Thus, Mr. Doherty’s liability turned on his failure to undertake such necessary
steps in the representation by “exercis[ing] the learning and skill ordinarily possessed by
members of [the legal] profession in the community.” Id. at 120; see also id. at 119 (“The
jury believed the defendant took insufficient action to obtain a continuance in the
plaintiff’s criminal case. Without a continuance, plaintiff’s arrest for his failure to appear
3
Mr. Doherty undertook some actions to represent Mr. Bowman in
each proceeding, such as negotiating a continuance with the deputy district
attorney for the original proceedings regarding the worthless-check case and
obtaining a court date with the aim of resolving both the worthless-check case
and the failure-to-appear case. See 686 P.2d at 115–16. But in each instance, Mr.
Doherty failed to diligently and competently represent Mr. Bowman. In the
worthless-check case, despite successfully negotiating a continuance with the
deputy district attorney, he failed to obtain a continuance with the court itself.
See id. at 115. Similarly, although he scheduled a court date to address the two
cases, he failed to appear with his client on the date the client was to appear. See
id. at 116. In each representation, Mr. Doherty did something, but he did not take
necessary steps to carry out the representation that would have been taken by a
competent attorney. He did not do enough or well enough, and his client suffered
harm as a result. Cf. Hunt, 839 P.2d at 48 (“[T]he action is more in the nature of
a violation of a duty imposed by law, instead of failure to perform a duty arising
by reason of the agreement. . . . The challenge by [the client] is not that the
auditors failed to perform the contract, but rather that they failed to perform it
with due care.”).
20
was foreseeable to a lawyer.” (emphasis added)). And, accordingly, the Kansas Supreme
Court held that Mr. Bowman’s claim sounded in tort.
On closer inspection, then, Bowman is distinguishable from Juhnke and Pittman.
The holdings of these three cases nevertheless may be harmonized in a way that clarifies
and sheds light on the “borderland” between tort and contract in Kansas legal malpractice
claims. In brief, a claim that a lawyer failed to perform acts in his legal representation of
a client that were the subject of bargained-for promises sounds in contract, whereas a
claim that an attorney’s acts or omissions in carrying out a representation fell short of the
ordinary standard of learning or skill in the legal community sounds in tort.
***
We now proceed to apply the foregoing principles to Mr. Sylvia’s claims against
Messrs. Wisler and Trevino. We begin with the claims against Mr. Wisler before turning
to the claim against Mr. Trevino.
2. Claims Against Mr. Wisler
Mr. Sylvia argues that his complaint stated facially plausible claims for legal
malpractice sounding in tort against Mr. Wisler for two separate breaches of duty: (1)
failure to amend the complaint in the underlying litigation to include a claim of workers’
compensation retaliation, resulting in that claim becoming time-barred; and (2)
voluntarily dismissing Mr. Sylvia’s case after erroneously advising him that he would be
able to refile all claims, causing his ADA discrimination claim to become time-barred.
Notably, these two breaches—that is, claims of legal malpractice allegedly sounding in
21
tort—both appeared in a single count of the original complaint, Count I, which was
denominated “Legal Malpractice.” Aplt.’s App. at 17. The district court dismissed this
count in its entirety; its analysis, however, only expressly addressed the first alleged
breach of duty related to the failure to amend.
More specifically, Mr. Sylvia’s original complaint alleged that he met with Mr.
Wisler along with Mr. Trevino “to employ them to file a lawsuit on his behalf,” that he
“signed a written contract with Wisler & Trevino, L.C.,” and that, when Mr. Trevino
withdrew from the litigation, Mr. Wisler filed an entry of appearance on behalf of Mr.
Sylvia. Id. at 13–15.
Count I of the complaint alleges that Mr. Wisler “failed to amend the complaint [in
the underlying litigation] to include a claim of workers[’] compensation retaliation.” Id.
at 17. Because of that failure to amend the complaint to include a claim of workers’
compensation retaliation, Mr. Sylvia was unable to bring that claim in his second suit
against Goodyear filed by new attorneys because “such a claim was never asserted in [the
first lawsuit], and therefore the claim was time-barred.” Id. at 16.
Count I also alleges that Mr. Wisler later refused Mr. Sylvia’s requests not to
voluntarily dismiss the case and repeatedly and “erroneously advised Mr. Sylvia that all
of the claims in that case could be re-filed.” Id. at 17. However, after filing a new action,
the district court dismissed his claim for ADA discrimination as time-barred because
Kansas’s savings statute does not apply to ADA cases. Id. at 16–17. The loss of the
workers’ compensation retaliation claim and the ADA discrimination claim “substantially
22
diminished” “the value of Mr. Sylvia’s claims” in his second suit against Goodyear. Id. at
17. This diminution in value allegedly was caused by Mr. Wisler’s negligence. Id.
The question presented here is whether these two claims sound in tort, rather than
contract, under Kansas law. As to the first claim relating to the failure to amend, we
conclude that the district court committed reversible error in granting Mr. Wisler’s
motion to dismiss. Based on the authorities and reasoning explicated supra, this claim
sounds in tort. As to the second claim (i.e., relating to the dismissal of the underlying
action based on erroneous advice), though the district court’s judgment effectively
dismissed this claim, the court’s analysis did not expressly address it, much less
characterize it as sounding in contract rather than tort. Consequently, for reasons that we
explicate infra, we believe it to be most prudent and fair to permit the district court to
address the merits of this second claim in the first instance, with the benefit of our sketch
herein of the contours of Kansas law.
a. Claim Against Mr. Wisler for Failure to Amend the
Complaint to Include a Claim for Workers’
Compensation Retaliation
In dismissing Mr. Sylvia’s claim against Mr. Wisler for failure to amend the
complaint to include a workers’ compensation retaliation claim, the district court
characterized the claim as being like that in Juhnke:
Plaintiff entered into a contract with Wisler & Trevino, L.C. for legal
services, namely to file a claim of wrongful termination against
Goodyear based on a variety of grounds. Plaintiff now alleges that
Defendants failed to do exactly that by not asserting a claim of
workers’ compensation retaliation. . . . Plaintiff fails to set forth a
23
facially plausible argument that Defendants violated a legal duty, and
therefore committed a tort, by not filing a petition that contained a
claim for workers’ compensation retaliation.
Aplt.’s App. at 73–74. We must disagree with the district court’s analysis and ultimate
conclusion.
The court’s analysis centered on the existence of an attorney-client contract
between Mr. Sylvia and Mr. Wisler’s firm for the filing of certain claims with respect to
Mr. Sylvia’s wrongful termination from Goodyear; based on its analysis, the court
concluded that Mr. Sylvia’s first Count I claim sounded in contract. But the existence of
this contract in itself does not shed much light on whether Mr. Sylvia may properly allege
that Mr. Wisler violated a legal duty stemming from their attorney-client relationship
(evidenced by the contract) when he failed to amend the complaint to include a workers’
compensation retaliation claim. See Pancake House, 716 P.2d at 578 (noting that a legal
malpractice action “generally constitute[s] both a tort and a breach of contract,” but where
“the essential claim of the action is a breach of a duty imposed by law upon the
relationship of attorney/client and not of the contract itself, the action is in tort”); Keeton
et al., supra, § 92, at 657–58 (“A contract or bargaining transaction brings into existence
a relationship of one kind or another at or after the contract or bargaining transaction is
made. . . . The obligations as between parties to such contracts are not always
obligations based entirely on the manifested intent of the parties.” (emphasis added)).
More specifically, the same relationship between a client and her attorney may
conceivably provide the basis for claims sounding in both contract and tort. See Pancake
24
House, 716 P.2d at 578 (“Legal . . . malpractice generally constitute[s] both a tort and a
breach of contract.”); accord Bowman, 686 P.2d at 120; see also Dan B. Dobbs et al.,
DOBBS’ LAW OF TORTS § 718 (2d ed.), Westlaw (database updated June 2017) (“Legal
malpractice . . . entails breach of a duty created by the contract or by the relationship with
the client. Indeed, in some cases the claim may be brought as a contract claim as well as
a negligence claim.” (emphasis added) (footnotes omitted)); Anderson & Steele, supra, at
251 (“Frequently courts allow the same set of facts to support causes of action against
attorneys for both malpractice[, i.e., sounding in tort,] and breach of contract.”). And
there is nothing in the federal rules or in Kansas practice that prevented Mr. Sylvia from
pleading in the alternative claims sounding in both tort and contract. See FED. R. CIV. P.
8(d)(2)–(3) (allowing the pleading of claims “alternatively or hypothetically, either in a
single count . . . or in separate ones” and for the pleading of separate claims “regardless of
consistency”); KAN. STAT. ANN. § 60-208(d)(2)–(3) (Kansas’s analogue to Federal Rule
8(d)); Price v. Holmes, 422 P.2d 976, 980 (Kan. 1967) (“[W]e have held it permissible for
a pleader to allege a cause of action in the alternative provided the alternatives are not
repugnant . . . . Our decisions have also upheld the right of a plaintiff to plead twin
causes of action arising out of a single transaction, the one sounding in tort and the other
being in contract . . . .” (citation omitted)); see also Bowman, 686 P.2d at 120 (“The trial
court correctly overruled the defendant’s motions for directed verdicts by determining
that both a legal and contractual obligation could have been breached.”).
Accordingly, the mere existence of an attorney-client contractual relationship
25
between Mr. Sylvia and Mr. Wisler for the latter’s firm to file certain claims with respect
to Mr. Sylvia’s wrongful termination from Goodyear should not have the effect of
transforming any subsequent malpractice claims by Mr. Sylvia related to such filing into
ones sounding solely in contract. Cf. Juhnke, 506 P.2d at 1145 (“It is true the petition
also described such default as having negligently occurred but use of the term
‘negligently’ does not necessarily serve to translate the action into one sounding in tort.”).
Naturally construed, the complaint alleges that Mr. Wisler’s failure to amend the
complaint was an act of negligence that caused a viable workers’ compensation claim to
become time-barred, diminishing the value of Mr. Sylvia’s claims against Goodyear.
Aplt.’s App. at 13–17. In our view, Mr. Wisler’s failure to act is akin to the failure of
performance of Mr. Doherty in Bowman. Accordingly, Mr. Sylvia properly stated a claim
for malpractice sounding in tort.
More specifically, contrary to the district court’s apparent view, we believe that
Mr. Sylvia’s Count I claim is better analogized to that in Bowman than that in Juhnke.
Unlike in Juhnke, the facts alleged by Mr. Sylvia do not show that Mr. Wisler expressly
contracted with Mr. Sylvia to file each of the claims discussed by the parties, and that Mr.
Wisler then breached that contract by not including the workers’ compensation retaliation
claim. And the plain text of Mr. Sylvia’s written agreement with Mr. Wisler’s firm does
not establish the existence of such a contract. Though in complaint averments
incorporated into Count I, Mr. Sylvia maintains that Mr. Wisler assured him that he
would file all claims identified in their agreement, including the workers’ compensation
26
retaliation claim, there is no indication in the complaint that these assurances constituted
bargained-for promises (i.e., contracts in themselves). Cf. Pittman, 752 P.2d at 718(discerning a claim sounding in contract where the complaint averred that the attorney
failed to “perform the final duty in his contractual representation”). Thus, as in Bowman,
Mr. Wisler is alleged to have offered only naked assurances, and by failing to follow
through he did not “exercise the learning and skill ordinarily possessed by members of
[the legal] profession in the community.” 686 P.2d at 120. In other words, he allegedly
breached a legal duty and committed a tort.
Moreover, the Kansas Court of Appeals’s decision in Jeanes—which the district
court used as the exemplar of a malpractice claim sounding in tort, Aplt.’s App. at
73—suggests that the mere allegation of a failure to provide services does not of itself
produce a claim sounding in contract rather than tort. In Jeanes, the plaintiff complained
of what was essentially a failure “to exercise ordinary skill and knowledge in giving legal
advice”—that is, failing to counsel a client to take steps that would have avoided
substantial estate tax liability upon her death. 191 P.3d at 331. Nonetheless, the plaintiff
administrator attempted to bring a claim for breach of contract by alleging “a contract . . .
to give estate planning advice” to the decedent and “fail[ure] to implement estate
planning measures” or to “giv[e] any estate-planning advice.” Id. at 329, 331. But the
Kansas Court of Appeals looked behind the allegations of the contract claim and
recognized that the contract claim merely duplicated the malpractice claim (sounding in
tort) without actually alleging a failure “to do something which [the attorney] had
27
specifically agreed or contracted to do.” Id. at 331 (emphasis added). Here, as in Jeanes,
mere allegation of a “failure” to perform—even relating to (naked) assurances to file all
claims, including the workers’ compensation claim—does not have the effect of turning
Mr. Sylvia’s malpractice claim into one sounding in contract.
Mr. Wisler contends that, “[w]here doubt exists as to whether an action is based on
contract or tort, words appropriate to a tort action will be disregarded and the petition will
be treated as sounding in contract.” Aplees. Wisler & Xpressions’ Br. at 10 (quoting
Juhnke, 506 P.2d at 1145). But Mr. Wisler omits an essential word from Juhnke. The
full quotation reads: “[W]here doubt exists as to whether an action is based on implied
contract or tort, words appropriate to a tort action will be disregarded and the petition will
be treated as sounding in contract.” Juhnke, 506 P.2d at 1145 (emphasis added). In other
words, this rule requires that where there is doubt as to whether a plaintiff’s claim is for
breach of an implied contract or a tort claim, the claim must sound in contract and tort
language is to be ignored. The district court, too, relied on this language from
Juhnke—though properly quoted—in reaching its conclusion that Mr. Sylvia failed to
plead tort malpractice claims against Messrs. Wisler and Trevino. But no implied
contract is alleged here.
The complaint does not allege breach of an implied contract—viz., “[a] contract
implied in fact aris[ing] from facts and circumstances showing mutual intent to contract”
or “[a] contract implied in law, or quasi contract, . . . a fiction of the law designed to
prevent unjust enrichment.” Mai v. Youtsey, 646 P.2d 475, 479 (Kan. 1982); see also
28
Kirk v. United States, 451 F.2d 690, 695 (10th Cir. 1971) (“The express contract is proven
by testimony showing the promise and the acceptance, whereas the implied contract is
inferred from the acts of the parties and other circumstances showing an intent to
contract.”). Instead, the complaint alleges a written agreement. In other words, at issue
here is an express contract: that is, neither an implied-in-fact contract—such as when a
man silently enters a barbershop and receives a haircut without having said a word or
signed any agreement—nor an implied-in-law contract—such as in actions for quantum
meruit or quantum valebant to obtain restitution of the value, respectively, of services or
goods—is implicated by Mr. Sylvia’s original complaint’s averments. Accordingly, the
proposition that the quoted Juhnke language establishes is inapposite.
Mr. Wisler further argues that Mr. Sylvia abandoned his tort claims for legal
malpractice by having omitted them from the amended complaint filed after those claims
were dismissed. Aplees. Wisler & Xpressions’ Br. at 11. In making this argument, Mr.
Wisler cites scant legal authority and none on point. The only case cited is an
unpublished disposition of the Kansas Court of Appeals in a malpractice suit. See Guinn
v. Raymond, No. 90971, 2004 WL 944256, at *4 (Kan. Ct. App. Apr. 30, 2004)
(unpublished). Guinn, however, is easily distinguished. There, the Kansas appellate
panel ruled that the plaintiff had abandoned a malpractice claim against his attorney for
failing to file a lost wage claim by settling the underlying action; the court reasoned that
the plaintiff “never gave the trial court [in that action] the opportunity to address the lost
wage claim issue head-on, and it would not have been futile to do so.” Id. at *5. It is
29
patent that the facts giving rise to the alleged abandonment in Guinn bear no resemblance
to the facts here. Perhaps most saliently, unlike in Guinn, Mr. Sylvia gave the district
court a straightforward and direct opportunity here to consider and determine whether his
tort characterization of his legal malpractice claims was correct. And the court actually
ruled on the matter. Specifically, Mr. Sylvia pleaded his malpractice claims in Count
I—distinct from his breach of contract claims—and made clear, through his complaint
averments, his view that the claims evinced “a breach of . . . duty” sounding in tort.
Aplt.’s App. at 17. But the court dismissed Count I in its entirety. Guinn’s abandonment
holding is obviously inapposite here. Therefore, Mr. Wisler’s reliance on Guinn is
completely misplaced.
Furthermore, and perhaps more to the point, this court has held that “a notice of
appeal which names the final judgment is sufficient to support review of all earlier orders
that merge in the final judgment.” McBride v. CITGO Petroleum Corp., 281 F.3d 1099,
1104–05 (10th Cir. 2002) (“As an earlier interlocutory order, the order of dismissal
merged into the final judgment.”); see Montgomery v. City of Ardmore, 365 F.3d 926,
933–34 (10th Cir. 2004); 16A Charles A. Wright et al., FEDERAL PRACTICE &
PROCEDURE § 3949.4, at 100 (4th ed. 2008) (“A notice of appeal that names the final
judgment suffices to support review of all earlier orders that merge in the final judgment
under the general rule that appeal from a final judgment supports review of all earlier
interlocutory orders . . . .”). The notice of appeal in this case did precisely that; it named
the final judgment. Therefore, the June 19 order was an interlocutory order that merged
30
with the final judgment and Mr. Sylvia’s challenge to it is properly preserved for appeal.
Indeed, in the notice of appeal, Mr. Sylvia was even more specific, expressly identifying
the court’s June 19 order dismissing Count I as an order from which appeal was taken.
Accordingly, Mr. Wisler’s contention that Mr. Sylvia abandoned his malpractice claims
allegedly sounding in tort by filing an amended complaint omitting those claims—after
the court dismissed them—fails.
***
In sum, Mr. Sylvia’s first malpractice claim relating to the failure to amend the
complaint to add a workers’ compensation retaliation claim sounds in tort. Thus, we
reverse the district court’s judgment as to that claim.
b. Claim Against Mr. Wisler for Voluntarily
Dismissing the Underlying Litigation on the
Erroneous Belief That All Claims Could Be Refiled
As noted, although Mr. Sylvia’s complaint did plead a second malpractice claim
against Mr. Wisler in Count I for voluntarily dismissing the underlying lawsuit after
erroneously advising Mr. Sylvia that he would be able to refile all claims, the district
court did not explicitly address this claim in dismissing the entirety of Mr. Sylvia’s legal
malpractice action (i.e., Count I) and, more specifically, did not opine on whether this
claim was properly characterized as sounding in tort or breach of contract. Presumably,
this was an oversight by the district court. In any event, although the district court’s
judgment in favor of Mr. Wisler regarding Count I did have the effect of tacitly resolving
this claim, we do not have the benefit of the district court’s rationale for doing so.
31
For the reasons stated below, we decline to review the merits of the court’s
disposition of this second claim, which would oblige us to address the tort-contract
characterization issue in the first instance. Instead, we remand the case with instructions
to the district court to vacate the portion of its Count I judgment encompassing this claim
and to resolve in the first instance under the principles of Kansas law explicated supra the
characterization of this claim. In other words, the court should determine under these
principles whether the claim is in fact a legal malpractice claim sounding in tort or
whether it is more properly viewed as a claim for breach of contract.
We recognize that Mr. Sylvia argues vigorously on appeal that this second claim
pleaded averments that “state a facially plausible claim for legal malpractice [sounding in
tort] against Mr. Wisler” under “the principles established” in Juhnke, Bowman, and other
Kansas cases bearing on the characterization of claims as sounding in tort or contract.
Aplt.’s Opening Br. at 28. But Mr. Sylvia’s argument does not acknowledge that the
district court did not expressly reach his second claim, much less apply Juhnke and
Bowman to it. In other words, Mr. Sylvia’s argument does not engage with the district
court’s reasoning regarding this claim because there is not any.
We are not saying—at least in the context of de novo review, as here—that the fact
that a district court’s underlying reasoning is nonexistent necessarily precludes our review
of its judgment effectively dismissing a claim. See Cox v. Glanz, 800 F.3d 1231, 1243
(10th Cir. 2015) (“[T]he district court did not mention qualified immunity in its
summary-judgment order. However . . . the court did explicitly deny Sheriff Glanz all
32
relief in its order, and part of the relief that Sheriff Glanz unquestionably sought in his
summary-judgment briefing was qualified immunity. Consequently, the court effectively
denied Sheriff Glanz the defense of qualified immunity when it denied his
summary-judgment motion.”); cf. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130
(10th Cir. 2011) (“We have long said that we may affirm on any basis supported by the
record, even if it requires ruling on arguments not reached by the district court or even
presented to us on appeal.”); Rivera v. City & Cty. of Denver, 365 F.3d 912, 920 (10th
Cir. 2004) (“Because our review is de novo, we need not separately address Plaintiff’s
argument that the district court erred by viewing evidence in the light most favorable to
the City and by treating disputed issues of fact as undisputed.”).
But there is also an absence of meaningful adversarial briefing here regarding the
tort-contract characterization issue with respect to this claim. In this regard, Mr. Wisler,
too, has failed to acknowledge the district court’s failure to address Mr. Sylvia’s second
claim. And, because his appellate briefing substantially tracks the rationale of the district
court’s order, Mr. Wisler (like the district court) elides this claim entirely. In other
words, he does not respond to Mr. Sylvia’s appellate briefing regarding this claim. This
absence of meaningful adversarial briefing—at least under the circumstances of this
case—militates against our review. See Abernathy v. Wandes, 713 F.3d 538, 552 (10th
Cir. 2013) (“[W]e are nevertheless reluctant to definitively opine on the merits of Mr.
Abernathy’s Suspension Clause argument under de novo review, because the government
has devoted very little time to addressing it, and, thus, we are deprived of the benefit of
33
vigorous adversarial testing of the issue, not to mention a reasoned district court decision
on the subject.”); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1155
(10th Cir. 2013) (en banc) (Gorsuch, J., concurring), aff’d sub nom. Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (“At the end of the day, then, and even after
inviting supplemental briefing, we are left with almost no help from the government on
the critical question of the statutory text’s receptivity to prudential standing doctrine.
Without that assistance, without as well some meaningful adversarial engagement on the
question, we run a serious risk of reaching ‘an improvident or ill-advised opinion[]’ . . . .”
(quoting Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir. 2007))).
To be sure, one might argue that Mr. Wisler’s failure to make an argument in
defense of the district court’s judgment regarding the second claim—in the face of Mr.
Sylvia’s appellate briefing regarding it—is tantamount to a waiver. See, e.g., United
States v. De Vaughn, 694 F.3d 1141, 1154–55 (10th Cir. 2012); United States v.
Heckenliable, 446 F.3d 1048, 1049 n.3 (10th Cir. 2006). But, notably, Mr. Sylvia makes
no such waiver argument. Furthermore, we cannot ignore the fact that Mr. Sylvia never
drew the district court’s attention to its failure to address his second claim—through a
motion for reconsideration or otherwise4—thereby depriving us of a reasoned district
4
Mr. Sylvia certainly understood the notion of seeking
reconsideration. In this regard, though not in a stand-alone motion, Mr. Sylvia
purported to conditionally seek reconsideration of the district court’s June 19
dismissal order in his response to Mr. Trevino’s motion for summary judgment.
Specifically, Mr. Sylvia argued that, if the district court concluded, at the
(continued...)
34
court decision regarding that claim. Relatedly, Mr. Sylvia never made the
characterization argument regarding the second claim that he does on appeal before the
district court.5 Consequently, under the circumstances presented here, we are inclined to
overlook any ostensible waiver by Mr. Wisler relative to the second claim. See Singleton
v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases.”); Abernathy, 713 F.3d at 552
(“[T]he decision regarding what issues are appropriate to entertain on appeal in instances
of lack of preservation is discretionary.”).
4
(...continued)
summary-judgment phase, that Mr. Sylvia’s remaining claims—which were
ostensibly contractual claims—“do not, as a matter of law, ‘stem from a breach of
contract,’ then the court must reconsider whether Mr. Sylvia’s claims stem from a
breach of duties imposed by law.” Aplt.’s App. at 202 (quoting id. at 74). Mr.
Sylvia made no request for reconsideration, however, of the effective dismissal of
his second claim arising from the voluntary dismissal of the underlying action, in
his response to Mr. Wisler’s motion for summary judgment and, notably, he never
brought to the court’s attention its failure to expressly resolve his second legal
malpractice claim against Mr. Wisler.
5
Mr. Wisler’s motion to dismiss did target this second malpractice
claim, but he only argued that the claim was time-barred, because the dismissal of
the underlying lawsuit—in his view, the nub of the “alleged negligence”—fell
outside of Kansas’s two-year limitations period for legal malpractice actions (i.e.,
tort actions). Aplt.’s App. at 24. Mr. Sylvia’s response brief—when addressing
this second Count I claim—only responded to this specific argument, contending
that it “must be rejected because it is plausible that Mr. Wisler is equitably
estopped from asserting the statute of limitations as a defense.” Id. at 46 (Pl.’s
Mem. Opp’n Def. Wisler’s Mot. Dismiss, dated Apr. 2, 2014). In other words, in
their motion-to-dismiss briefing, neither Mr. Wisler nor Mr. Sylvia made
arguments regarding the tort-contract characterization issue, as it relates to this
second claim.
35
Deprived of meaningful adversarial briefing regarding this claim, as well as a
reasoned district court decision resolving it, we believe that the most prudent and fair
course is to allow the district court to address this claim in the first instance on remand
under the Kansas law principles articulated supra. We turn now to the single legal
malpractice claim allegedly sounding in tort that Mr. Sylvia alleged against Mr. Trevino.
3. Malpractice Claim Against Mr. Trevino for Failure to Include a
Claim of Workers’ Compensation Retaliation
Mr. Sylvia contends that he pleaded a facially plausible claim for legal malpractice
sounding in tort against Mr. Trevino and that the district court erred in dismissing his
claim for the “same . . . reasons discussed in detail . . . in regard to Mr. Wisler.” Aplt.’s
Opening Br. at 30. But Mr. Trevino argues (a) that Mr. Sylvia has failed to meet the
federal pleading standards, and (b) that the Kansas cases that Mr. Sylvia cites are not
analogous to his case and so fail to demonstrate error by the district court.
Specifically, Mr. Trevino first asserts that Mr. Sylvia has merely pleaded legal
conclusions insufficient to make out a claim for legal malpractice: “Mr. Sylvia has not
alleged any facts that even infer Mr. Trevino breached a duty to exercise ordinary skill
and knowledge. Moreover, no facts were pled that Mr. Trevino was negligent as an
attorney by not filing a claim for workers[’] compensation retaliation.” Aplee. Trevino’s
Br. at 16. But, under contemporary pleading standards, we conclude that Mr. Sylvia
adequately pleaded a legal malpractice claim sounding in tort against Mr. Trevino.
“[T]he Rule 12(b)(6) standard doesn’t require a plaintiff to ‘set forth a prima facie
36
case for each element.’” Urban Settlement Servs., 833 F.3d at 1247 (quoting Khalik, 671
F.3d at 1192–93). And that standard is still fundamentally one of notice pleading
intended “to ensure that a defendant is placed on notice of his or her alleged misconduct
sufficient to prepare an appropriate defense.” Kan. Penn Gaming, L.L.C. v. Collins, 656
F.3d 1210, 1215 (10th Cir. 2011) (quoting Pace v. Swerdlow, 519 F.3d 1067, 1076 (10th
Cir. 2008) (Gorsuch, J., concurring in part)). Plausibility requires that the scope of
allegations not be “so general that they encompass a wide swath of conduct, much of it
innocent.” Id. (quoting Robbins v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d
1242, 1247 (10th Cir. 2008)).
But the nature and specificity required of a complaint “depends on context.”
Robbins, 519 F.3d at 1248. For example, “[a] simple negligence action based on an
automobile accident may require little more than the allegation that the defendant
negligently struck the plaintiff with his car while crossing a particular highway on a
specified date and time.” Id. This too is a relatively simple negligence action. In our
view, under these circumstances, Mr. Sylvia’s complaint serves to put Mr. Trevino on
notice of the misconduct alleged such that he can prepare his defense.
Naturally construed, Mr. Sylvia alleges that Mr. Trevino failed to exercise the skill
and knowledge required of an attorney by failing to amend the complaint to include a
workers’ compensation retaliation claim before withdrawing from the attorney-client
relationship. This alleged negligent omission caused the retaliation claim to become
time-barred, resulting in diminishment of the value of Mr. Sylvia’s claims against
37
Goodyear. These allegations are sufficient on their face to state a facially plausible claim
for legal malpractice sounding in tort because they are sufficient to have put Mr. Trevino
on notice of the precise conduct alleged to be negligent and to be the cause of Mr.
Sylvia’s injury.
Mr. Trevino maintains that the district court was correct in holding that Mr.
Sylvia’s claim sounded in contract rather than tort and that Mr. Sylvia fails to “address
the [d]istrict [c]ourt’s reasoning in dismissing Mr. Sylvia’s malpractice claim[s].” Aplee.
Trevino’s Br. at 14. According to this argument, the Kansas cases that Mr. Sylvia cites
are not analogous to his case and so do not support Mr. Sylvia’s contention that his
malpractice claim sounds in tort. Specifically, Mr. Trevino contends that the cases “all
concern which statute of limitations appl[ies] in a legal malpractice case and involve
situations in which a trial court dismissed a cause of action because the perceived harm fit
more appropriately within the realm of either tort or breach of contract.” Id. (citing
Pancake House, 716 P.2d at 578; Bowman, 686 P.2d at 120; Juhnke, 506 P.2d at
1144–45; Price, 422 P.2d at 979–80). He reasons that, by contrast, in Mr. Sylvia’s case,
“his tort claim was not independent of the breach of contract claim.” Id. at 15.
Mr. Trevino’s argument rests on a mistaken understanding of the cases. Of the
cases he cites, only Juhnke turned directly on whether the two-year limitations period for
torts or the longer period for contracts would apply. 506 P.2d at 1143, 1145 (reciting that
dismissal by the trial court was based on two-year tort limitations period, but holding that
the claim sounded in contract and so the three-year limitations period applied). In
38
Bowman, the statute of limitations was in no way implicated, and the trial court did not
dismiss either cause of action; instead, the defendant challenged the jury’s award of
punitive damages on the grounds that the plaintiff’s claim sounded in contract, not tort,
and so punitive damages were inappropriate. See 686 P.2d at 120. Although the
characterization issue in Pancake House did arise in the context of which statute of
limitations would apply, 716 P.2d at 578, the court’s determination that the plaintiff’s
claim sounded in tort rather than contract was decisive not because that holding
determined which limitations period would apply but because it determined when the
claim accrued, id. at 578–79 (tort claim accrued when substantial injury was suffered).
Similarly, Price turned not on which statute of limitations applied but on the fact that the
contract claim accrued during the life of the decedent and so survived her death, while the
tort claim did not accrue until after her death and so did not survive. 422 P.2d at 981–82.
But Mr. Trevino’s mistaken reading of these cases regarding the relevance of the
limitations question is not the only reason his argument fails.
Mr. Trevino’s argument also fails because the Kansas Supreme Court has
expressly decided whether to characterize malpractice claims as sounding in tort or
contract in a variety of contexts. See Tamarac Dev. Co. v. Delamater, Freund & Assocs.,
675 P.2d 361, 363 (Kan. 1984) (“The issue of whether a cause of action sounds in
contract or tort, or both, has been before this court numerous times.”); Hunt, 839 P.2d at
47 (“Kansas cases have addressed the question[, i.e., the tort-contract characterization
question,] in the context of doctors, attorneys, architects, and accountants.”). Thus, we
39
see no reason—and Mr. Trevino offers none—why the question ought to be decided
differently in the present setting, such that we should consider irrelevant the Kansas
caselaw cited. We should not cavalierly seek to distinguish these cases so as to ignore
binding authority from Kansas’s highest court. See Wankier, 353 F.3d at 866 (“[We]
must defer to the most recent decisions of the state’s highest court.”).
Mr. Trevino offers no further argument as to why the malpractice claim lodged
against him must sound in contract rather than tort. The same legal principles that we
applied to the claims against Mr. Wisler are controlling here. In the context of Count I,
Mr. Sylvia does not allege that Mr. Trevino breached some bargained-for promise to
amend the complaint to add the workers’ compensation retaliation claim; instead, he
essentially alleges that Mr. Trevino did not follow through with his bald assurances that
all of Mr. Sylvia’s five claims—including the workers’ compensation claim—would end
up in the complaint. In other words, Mr. Sylvia alleges that, by failing to amend the
complaint, Mr. Trevino failed to “exercise the learning and skill ordinarily possessed by
members of [the legal] profession in the community,” Bowman, 686 P.2d at 120, and
thereby caused him injury (i.e., diminished the value of his subsequent action against
Goodyear by depriving him of his time-barred workers’ compensation retaliation claim).
As such, Mr. Sylvia adequately pleaded a legal malpractice claim sounding in tort.
***
In sum, for the reasons noted above, we reverse the district court’s judgment
granting Mr. Trevino’s motion to dismiss Mr. Sylvia’s malpractice claim for failing to
40
include a workers’ compensation retaliation claim in the original complaint. We turn now
to Mr. Sylvia’s contract claims, which the district court disposed of on summary
judgment.
B. Summary Judgment as to the Contract Claims
We review de novo the district court’s grant of summary judgment. Burnett v. Sw.
Bell Tel., L.P., 555 F.3d 906, 907 (10th Cir. 2009). “Summary judgment should be
granted ‘if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1168 (10th
Cir. 2010) (quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)). This court
“examine[s] the record and all reasonable inferences that might be drawn from it in the
light most favorable to the non-moving party.” Ellis v. J.R.’s Country Stores, Inc., 779
F.3d 1184, 1192 (10th Cir. 2015) (quoting Merrifield v. Bd. of Cty. Comm’rs, 654 F.3d
1073, 1077 (10th Cir. 2011)).
Mr. Sylvia’s post-dismissal amended complaint included two separate sets of
contract claims: (1) claims against Messrs. Wisler and Trevino, as willful participants in a
breach of contract by Wisler & Trevino, L.C., for failure to include a claim of workers’
compensation retaliation; and (2) a claim against Xpressions (formerly Wisler Law
Office, L.C.) and against Mr. Wisler, as a willful participant in the breach of contract of
Xpressions by voluntarily dismissing the underlying case. Aplt.’s App. at 81–82, 89
(Am. Compl., dated Oct. 27, 2014). The district court granted summary judgment on Mr.
41
Sylvia’s contract claims because the undisputed facts failed to show the existence of a
contract to bring a workers’ compensation retaliation claim or to refrain from voluntarily
dismissing the case.6
As to the first claim of breach of contract by failure to include a workers’
compensation retaliation claim, Mr. Sylvia argues (a) that the written contract with Wisler
& Trevino, L.C. was incomplete, permitting the introduction of evidence of prior or
contemporaneous parol, or (b) that the written contract was modified by a subsequent oral
agreement. As to the second claim against Mr. Wisler and Xpressions, Mr. Sylvia
appears to argue, as he did below, that Mr. Wisler entered into a contract to “assure the
effect of legal services rendered” by making assurances that all claims could be refiled.
Aplt.’s Opening Br. at 36 (emphasis omitted) (quoting Juhnke, 506 P.2d at 1145).
As to the first claim, Mr. Trevino’s liability on the written contract is said to stem
from his having “participated and acquiesced in the express assurances made by Mr.
Wisler that a claim for workers[’] compensation retaliation would be specifically included
in the suit against Goodyear.” Id. at 37. Accordingly, Mr. Trevino’s contractual liability
depends entirely on whether Mr. Wisler’s assurances supplemented or modified the
6
In its dismissal order, the district court ruled that, although the
individual attorneys were not parties to the written contract, they could be held
liable as owners for willful participation in the entity’s breach of contract under a
veil-piercing theory. Id. at 75–76; see also Speer v. Dighton Grain, Inc., 624
P.2d 952, 958–59 (Kan. 1981) (“[A] corporate officer or director acting on behalf
of a corporation is personally liable for damages caused by his willful
participation in acts of fraud or deceit to one directly injured.”). No party
challenges this ruling on appeal, and therefore we need not opine on the matter.
42
written contract. In other words, Mr. Trevino stands or falls with Mr. Wisler; if the
latter’s arguments fail, so do Mr. Trevino’s. We turn to this first claim and then examine
the district court’s judgment regarding the contract claim against Mr. Wisler and
Xpressions arising from the voluntary dismissal.
1. Contract Claims Against Messrs. Wisler and Trevino for Failing
to Include a Workers’ Compensation Retaliation Claim
Before the district court, Mr. Sylvia contended that Mr. Wisler made oral promises
before, during, and after the execution of the written contract of representation that served
to either clarify or modify the written contract such that it would require Mr. Wisler to
file a workers’ compensation retaliation claim. Messrs. Wisler and Trevino argued that:
(a) any prior or contemporaneous statements are barred by the parol evidence rule and so
evidence of those statements is not admissible and could not create a genuine dispute as
to a material fact; and (b) even assuming arguendo that subsequent oral promises were
made to Mr. Sylvia, they would still be entitled to summary judgment because those
promises are not enforceable for want of consideration.
On appeal, Mr. Sylvia contends that the district court erred in holding (a) that the
written contract was complete, and (b) that there was no subsequent oral agreement
modifying the written contract for want of consideration. For the reasons noted below,
these arguments fail. We affirm the district court’s grant of summary judgment on the
breach of contract claims against Messrs. Wisler and Trevino for failure to include, or
amend to include, a claim for workers’ compensation retaliation.
43
a. Incompleteness
Mr. Sylvia first contends that the written contract is incomplete, and so parol
evidence is admissible and creates a genuine factual dispute preventing summary
judgment.
Under Kansas law, unless a contract is incomplete, ambiguous, or uncertain, “parol
evidence of prior or contemporaneous agreements or understandings tending to vary the
terms of the contract evidenced by the writing is inadmissible.” Decatur Cty. Feed Yard,
Inc. v. Fahey, 974 P.2d 569, 574 (Kan. 1999) (quoting Simon v. Nat’l Farmers Org., Inc.,
829 P.2d 884, 887–88 (Kan. 1992)). Where, however, a contract is “silent or ambiguous
concerning a vital point” or otherwise “does not definitely embrace the entire agreement
of the parties . . . parol proof may be received to supplement and explain that which is
written.” Souder v. Tri-Cty. Refrigeration Co., 373 P.2d 155, 160 (Kan. 1962); see
Barbara Oil Co. v. Kan. Gas Supply Corp., 827 P.2d 24, 35 (Kan. 1992).
But there is a “wide distinction between an attempt to contradict the terms of a
written instrument and to explain the circumstances and conditions under which it was
executed and delivered.” Souder, 373 P.2d at 159. In this regard, parol evidence is
admissible “when a written contract is silent as to a particular matter discussed and agreed
upon between the parties,” insofar as such evidence “may be offered on that matter
without varying the written contract.” Hummel v. Wichita Fed. Sav. & Loan Ass’n, 372
P.2d 67, 70–71 (Kan. 1962) (emphasis added) (quoting Kirk v. First Nat’l Bank, 295 P.
703, 705 (Kan. 1931)). In order then to show that the contract is incomplete and that his
44
parol is admissible, Mr. Sylvia must show that the contract is silent on the point at issue
and that the parol offered would not vary the text as it stands but would merely
supplement or explain it.
We conclude that the contract is not incomplete; more specifically, it is not silent
as to whether Wisler & Trevino, L.C. was obligated to bring a workers’ compensation
retaliation claim. The relevant clause reads:
Cory Sylvia has been wrongfully discharged due to disability
discrimination and FMLA violation/retaliation and Workers
Compensation retaliation from GoodYear Tire and Rubber Company
on or about May 9, 2009. The firm will file suit in federal court in
Kansas on one or more of these claims.
Aplt.’s App. at 132 (emphasis added). Put simply, the contract is not silent regarding
whether Wisler & Trevino, L.C. was required to file in particular a workers’
compensation retaliation claim: the firm was not. Rather, it was only obliged to bring at
least one of the enumerated claims.
Further, Mr. Sylvia’s parol averment attributed to the defendants that “a claim for
workers[’] compensation retaliation would be specifically included” directly contradicts
the plain language of the contract. Aplt.’s Opening Br. at 33. The contract required only
that the firm bring at least one of the claims. Aplt.’s App. at 132. Even were this parol
evidence admissible in other respects, it would not be admissible to directly contradict an
express contractual term.
Mr. Sylvia contends that the contract is incomplete because “it does not
specifically identify which ‘one or more of these claims’ would be included in the suit
45
against Goodyear.” Aplt.’s Opening Br. at 33. However, at best this is an argument for
ambiguity of the contract, not for incompleteness or silence. But the agreement is not
ambiguous. “There can be no ambiguity in a written agreement unless after the
application of pertinent rules of construction there is left a genuine uncertainty which of
two or more possible meanings was intended by the parties.” Mays v. Middle Iowa Realty
Grp., 452 P.2d 279, 284 (Kan. 1969); see also Ark. La. Gas Co. v. State, 675 P.2d 369,
371 (Kan. 1984) (“This court has held a contract to be ambiguous ‘when . . . the contract
may be understood to reach two or more possible meanings.’” (quoting First Nat’l Bank
of Olathe v. Clark, 602 P.2d 1299, 1304 (Kan. 1979))). Here, no meaning presents itself
other than the plain meaning: Wisler & Trevino, L.C. obligated itself to bring at least one
of Mr. Sylvia’s claims. By bringing one claim, the firm met its obligation under the
contract; it was not required to specifically file a workers’ compensation retaliation claim.
Mr. Sylvia offers no reasonable alternative reading such that the contract should be
considered ambiguous.
Accordingly, the district court did not err in holding that the written contract was
complete. Mr. Sylvia next contends that, even if the agreement is complete, it was
modified by a subsequent oral agreement. This argument, too, fails.
b. Subsequent Oral Agreement
The district court found that Mr. Sylvia did not raise a genuine dispute of fact
regarding whether Mr. Wisler “bargained for or received any consideration in exchange
for [the] alleged promise [to file the two claims omitted from the initial filing later]” or
46
whether Mr. Sylvia “incurred any loss or detriment in exchange for the promise.” Aplt.’s
App. at 218 (Mem. & Order, dated Oct. 26, 2015). Mr. Sylvia argues, however, that the
district court erred because he suffered a detriment sufficient to serve as consideration.
Consistent with the district court’s holding, we conclude that Mr. Sylvia’s evidence, taken
as true, shows nothing more than bare promises by Mr. Wisler—unsupported by
consideration—that fall well short of a subsequent agreement to modify the written
contract.
Specifically, Mr. Sylvia contends that, “[i]n reliance on [Mr. Wisler’s promise to
file the two claims omitted from the initial filing later], I did not insist that the contract of
representation be re-written to specifically state that all five claims would be included in
the complaint.” Aplt.’s Opening Br. at 34; accord Aplt.’s App. at 173 (Decl. Cory Sylvia,
dated Apr. 1, 2015). As support for this argument, Mr. Sylvia directs us to the Kansas
Supreme Court’s decision in Temmen v. Kent-Brown Chevrolet Co., 535 P.2d 873 (Kan.
1975). There, quoting liberally from the late Professor Williston’s leading treatise on
contracts, the court seemed to primarily center its holding on the concept of “legal
detriment,” ruling that, “[t]enuous though it be, we believe that under the circumstances
here there was a sufficient showing of consideration.” Id. at 880–81 (quoting 1 Samuel
Williston, WILLISTON ON CONTRACTS § 102A (3d ed. 1957)).
As Professor Williston’s treatise explains:
[D]etriment in this context [has] a technical meaning. . . . [T]he
detriment to the promisee need [not] be actual; rather, it is a sufficient
legal detriment to the promisee [to satisfy the consideration
47
requirement] if it promises or performs any act, regardless of how slight
or inconvenient, which it is not obligated to promise or perform so long
as it does so at the request of the promisor and in exchange for the
promise.
3 Samuel Williston et al., WILLISTON ON CONTRACTS § 7:4 (4th ed.), Westlaw (database
updated May 2017) (second emphasis added) (footnote omitted); see In re Shirk’s Estate,
350 P.2d 1, 7, 9–10 (Kan. 1960) (applying the concept of legal detriment).
In Temmen, the court identified facts that—while admittedly bearing a “[t]enuous”
connection to the concept of legal detriment—provided “a sufficient showing of
consideration.” 535 P.2d at 881. Specifically, the court noted that the plaintiff “allege[d]
he specifically informed [the defendant] that unless the work [on his vehicle] were taken
care of under the warranty he would take the vehicle elsewhere for the repairs and that he
left it with [the defendant] only upon assurance the warranty would cover the work.” Id.
at 880. In the same vein, the plaintiff “assert[ed] that by reason of [the defendant’s]
agreement[,] he gave up the right to attempt to receive a better bargain elsewhere for the
repair work.” Id. In ultimately concluding that these facts yielded sufficient
consideration, the Temmen court necessarily inferred from the plaintiff’s averments that
all of the features of a legal detriment to the plaintiff were effectively present, including
notably a request from the defendant for the plaintiff to leave his vehicle with it for repair
and thereby give up an opportunity to seek a better deal on repairs elsewhere.
There are no such facts present here. Though steadfastly maintaining that he “did
not insist that the contract of representation be re-written to specifically state that all five
48
claims would be included in the complaint against Goodyear” because of his reliance on
Mr. Wisler’s promise to subsequently include the two omitted claims, at no point does
Mr. Sylvia identify facts from which it could be reasonably inferred that Mr. Wisler asked
him to forgo making a request to have the contract rewritten (i.e., an act Mr. Sylvia did
not have to forgo). Therefore, a key element of a legal detriment—a request from the
promisor, Mr. Wisler—is not present here. Consequently, Mr. Sylvia’s detriment was not
sufficient to constitute consideration for any alleged assurances from Mr. Wisler
regarding the inclusion of the omitted claims. Such assurances were nothing more than
naked promises. Thus, Mr. Sylvia’s contention that his written contract of representation
was modified by a subsequent oral agreement is without merit; any such agreement was
devoid of consideration.7
7
In his reply brief, Mr. Sylvia largely shifts gears. For the first time,
he points to different language in Temmen, where the court is discussing the
substantial conceptual similarity between principles of consideration and
estoppel. See Aplt.’s Reply Br. at 14–15 (quoting Temmen, 535 P.2d at 880).
This language seemingly alludes to a possible rubric identified in Kansas
caselaw—which is distinct from the legal detriment concept—for establishing
“sufficient” consideration. French v. French, 167 P.2d 305, 308 (Kan. 1946)
(cited in Temmen, 535 P.2d at 880–81). This rubric centers on whether “the
promisor should reasonably expect [its promise] to induce action or forbearance
of a definite and substantial nature [from the promisee] and which does induce
such action or forbearance[,] if injustice can be avoided only by enforcement of
the promise.” Id. (discussing this rubric as separate from one focusing on
whether the promisor suffered a detriment). We have no need to opine here on
whether this rubric ever was an established component of Kansas contract law
with respect to the issue of consideration and, if so, whether it is still viable. This
is so because Mr. Sylvia’s invocation of this rubric comes too late.
(continued...)
49
***
Because Mr. Sylvia has failed to show that the district court erred in holding that
the contract was complete and that it was not modified by a subsequent oral agreement,
we uphold the district court’s grant of summary judgment for all defendants on the breach
of contract claims for failure to include a workers’ compensation claim in the underlying
lawsuit against Goodyear.
7
(...continued)
In this regard, Mr. Sylvia has attempted for the first time in this appeal to
demonstrate under this rubric that he supplied sufficient consideration through his
“forbearance.” Aplt.’s Reply Br. at 14. As a general matter, however, this court
has routinely “declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.” Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007). Relatedly, “[i]t is well settled that ‘[t]his
court does not ordinarily review issues raised for the first time in a reply brief.’”
United States v. Gordon, 710 F.3d 1124, 1150 (10th Cir. 2013) (second alteration
in original) (quoting Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000)). This is
true even if the new issue or theory is of the same general genus, or otherwise
generally related to the argument previously advanced. Cf. Jacks v. CMH Homes,
Inc., 856 F.3d 1301, 1306 (10th Cir. 2017) (“[O]ur forfeiture-and-waiver rule
applies even ‘when a litigant changes to a new theory on appeal that falls under
the same general category as an argument presented at trial.’” (quoting Schrock v.
Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013))). Such arguments are not
merely forfeited, they are “deemed waived.” Becker v. Kroll, 494 F.3d 904, 913
n.6 (10th Cir. 2007) (“Federal Rule of Appellate Procedure 28(a)(9)(A) requires
appellants to sufficiently raise all issues and arguments on which they desire
appellate review in their opening brief. An issue or argument insufficiently raised
in the opening brief is deemed waived.”); see also Richison, 634 F.3d at 1127–28
(discussing the distinction between waived and forfeited theories and noting that
under certain circumstances, “[u]nlike waived theories, we will entertain forfeited
theories on appeal” (emphasis added)). Consistent with these authorities, we will
not consider this late-blooming argument by Mr. Sylvia.
50
2. Contract Claims Against Mr. Wisler and Xpressions for
Voluntarily Dismissing the Underlying Case
The district court held that Mr. Sylvia had failed to show breach of any contract by
Mr. Wisler and Xpressions arising from Mr. Wisler’s dismissal of the case against
Goodyear. As the district court put it, while alleging that Mr. Wisler “breached his
contractual obligations,” Mr. Sylvia failed to explain “which contractual obligations” Mr.
Wisler breached. Aplt.’s App. at 219. In support of his position that the district court
erred in granting summary judgment for Mr. Wisler and Xpressions, Mr. Sylvia offers
only one argument. Although the exact contours of this argument are difficult to discern,
he appears to assert that under Juhnke a contractual obligation can be implied from
attorneys assuring the effect of legal services rendered. See Aplt.’s Opening Br. at 36.
Thus, as the argument goes, Mr. Wisler—by assuring Mr. Sylvia that voluntary dismissal
would not prevent the refiling of all claims—became subject to just such a contractual
obligation. See id. But Juhnke stands for no such proposition.
Mr. Sylvia is only able to cite dicta from Juhnke—dicta that, properly read, refutes
his argument. He quotes:
Courts in other jurisdictions which have considered the question
are not in harmony as to which statute of limitations—contract or
tort—governs a damage action against an attorney for neglect in the
performance of his professional services. The majority appears to
favor the contract approach and uniformly so where the contract
breached is one to obtain a specific result or to assure the effect of legal
services rendered (see [H. H. Henry, Annotation, What Statute of
Limitations Governs Damages Action Against Attorney for Negligence
in Performance of Professional Services,] 49 A[.]L[.]R[.] 2d 1216[,
superceded by 2 A.L.R. 4th 284,] and Later Case Service).
51
Aplt.’s Opening Br. at 36 (emphasis added by appellant) (quoting Juhnke, 506 P.2d at
1145). This language appears to be little more than an aside on the Juhnke court’s way to
holding that under the circumstances of that case—where Mr. Juhnke’s attorney
contracted to file an appeal and failed to do so—Mr. Juhnke’s claim sounded in contract
as a “failure to discharge a contractual obligation.” Juhnke, 506 P.2d at 1145. More
importantly, Mr. Sylvia misreads this language.
The language cited offers no principle of law akin to that which Mr. Sylvia
advances. The language reads: “The majority appears to favor the contract approach and
uniformly so where the contract breached is one . . . to assure the effect of legal services
rendered.” Id. (emphasis added). On its face, this language requires an existing contract.
It does not call for implying a contract from a naked promise assuring the effect of legal
services rendered. As the district court pointed out, the written contract here does not
prohibit dismissal of the case and so cannot be the source of the alleged contractual
obligation. The only alleged source of a contractual obligation that Mr. Sylvia identifies,
even obliquely, is that Mr. Wisler “repeatedly assured [him] that all of the claims in the
case could be re-filed.” Aplt.’s Opening Br. at 36. But the Juhnke dictum does not make
of those assurances a contractual obligation.
Mr. Sylvia fails to explain or support his assertion that such assurances created a
binding contractual obligation on the part of Mr. Wisler and Xpressions not to dismiss the
case. Nor does he present any other reason to reverse. Accordingly, we uphold the
52
district court’s grant of summary judgment for Mr. Wisler and Xpressions on this claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment as to
the breach of contract claims and REVERSE in part and VACATE in part the
court’s judgment regarding the allegedly tort-based legal malpractice claims, and
REMAND the case for further proceedings consistent with this opinion.
53