Booth v. Davis
690 F. App'x 571
| 10th Cir. | 2017Background
- In 2002–2003 attorney Grant Davis and his firm represented hundreds of plaintiffs in suits against two drug companies and agreed to a global settlement that allocated awards by Special Master; lead plaintiff Georgia Hayes received a much larger payment.
- Plaintiffs signed a Disclosure of Global Settlement and a Release acknowledging the joint settlement structure and that awards would be determined by a Special Master; they received their individual awards in May–July 2003.
- In April 2004 the Tilzer family (other participants) sued Davis for malpractice; the Kansas Supreme Court held in 2009 that the global settlement was an aggregate settlement requiring particular disclosures under Missouri professional rules (Tilzer).
- Protective orders delayed wider notice of the Tilzer decision; some of Davis’s clients (the Booths and Schmitzes) learned of Tilzer in Dec. 2009, others (Carrel and Kirkegaard) in June 2010.
- Plaintiffs filed malpractice suits in 2010 (Booth/Schmitz in Feb. 2010; Carrel/Kirkegaard in Sept. 2010). The district court granted summary judgment for Davis, holding claims time-barred under Kansas’s two-year statute of limitations; the Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did malpractice claims accrue under Kan. Stat. § 60-513? | Accrual did not occur until the Tilzer decision (Apr. 3, 2009) made clear the legal duties and breach. | Accrual occurred when plaintiffs received their settlement awards in 2003 and knew the material facts, so limitations ran in 2003. | Accrual occurred in 2003 when plaintiffs received awards and knew facts sufficient to investigate; claims were time-barred. |
| Is “reasonably ascertainable” knowledge met only when plaintiff understands legal malpractice? | Plaintiffs: must know attorney’s professional obligations (legal conclusion) before accrual. | Davis: plaintiffs need only discover material facts and the causal link, not a legal determination of negligence. | Court: plaintiffs needed only know material facts and possible causal connection; no requirement to reach legal conclusion. |
| Did the Tilzer decision create new factual information that tolled accrual? | Tilzer revealed facts (aggregate settlement, duty to disclose, breach) unavailable earlier. | Tilzer produced legal conclusions; the factual basis was already knowable in 2003. | Court: Tilzer announced legal conclusions; the underlying facts were ascertainable in 2003, so Tolzer did not restart limitations. |
| Would tolling until consultation with another lawyer be required? | Plaintiffs suggest limitations should toll until they consult other counsel. | Davis argues such tolling would eliminate limitations and contradict Kansas precedent. | Court: Rejects indefinite tolling; Kansas law requires plaintiffs to investigate within statutory period. |
Key Cases Cited
- Benne v. Int’l Bus. Mach. Corp., 87 F.3d 419 (10th Cir. 1996) (limitations period postponed until plaintiff can reasonably ascertain that injury may be caused by defendant’s act)
- Dearborn Animal Clinic, P.A. v. Wilson, 806 P.2d 997 (Kan. 1991) (attorney-malpractice accrual tied to reasonable ascertainability of causal connection)
- Tilzer v. Davis, Bethune & Jones, L.L.C., 204 P.3d 617 (Kan. 2009) (global settlement is aggregate settlement requiring disclosures under professional conduct rules)
- Davidson v. Denning, 914 P.2d 936 (Kan. 1996) (actual knowledge not required; reasonable ascertainability triggers accrual)
- Pancake House, Inc. v. Redmond ex rel. Redmond, 716 P.2d 575 (Kan. 1986) (claim accrues when plaintiff discovers or reasonably should have discovered material facts essential to cause of action)
- Duvall v. Georgia-Pacific Consumer Prods., L.P., 607 F.3d 1255 (10th Cir. 2010) (summary judgment standard review de novo)