Sylvia v. Wisler
875 F.3d 1307
| 10th Cir. | 2017Background
- Plaintiff Cory Sylvia retained Wisler & Trevino, L.C. to sue Goodyear for wrongful termination; the written engagement said the firm "will file suit in federal court in Kansas on one or more of these claims," listing five potential claims (including ADA discrimination, FMLA retaliation, and workers’ compensation retaliation).
- The initial complaint filed by counsel omitted two retaliation claims (FMLA retaliation and workers’ compensation retaliation). Sylvia alleges defendants orally assured him the omitted claims would be added later.
- After partner Trevino withdrew, Wisler continued the representation and, after receiving a Social Security disability determination, advised Sylvia the case should be voluntarily dismissed and (allegedly) assured him the claims could be refiled; Sylvia consented and later lost an ADA claim as time-barred when refiling with new counsel.
- Sylvia sued the attorneys (and later Xpressions, L.C.) for legal malpractice (pleaded in the alternative as tort and breach of contract). The district court dismissed the tort malpractice counts and later granted summary judgment to defendants on the remaining contract claims.
- On appeal, the Tenth Circuit applied Kansas law to decide (a) whether the malpractice allegations sound in tort or contract and (b) whether the contract claims survive summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does failure to amend the complaint to add a workers’ compensation retaliation claim sound in tort or contract? | Sylvia: omission was negligent performance of professional duties (tort). | Defendants: suit is breach of contract (like Juhnke—attorney failed to perform an agreed task). | Tort. Court reversed dismissal as to this malpractice claim (pled sufficiently as negligence). |
| Does voluntary dismissal based on erroneous advice (assurance claims could be refiled) sound in tort or contract? | Sylvia: advice-induced voluntary dismissal was negligent (tort). | Defendants: characterized as contractual or not properly alleged; district court did not analyze. | Unresolved on appeal—remanded for district court to decide under Kansas tort/contract principles. |
| Can Sylvia use parol evidence or a subsequent oral modification to show the written engagement required filing the workers’ compensation claim? | Sylvia: written contract incomplete or was orally modified; parol admissible; forbearance/ reliance supplied consideration. | Defendants: contract was complete and unambiguous; parol barred; any later promises lacked consideration. | Affirmed for defendants. Contract was not silent (firm promised to file "one or more" claims) and alleged oral promises lacked consideration—summary judgment on contract claims affirmed. |
| Was summary judgment on the contract claims (failure to include retaliation claim; dismissal-related contract claim) proper? | Sylvia: factual disputes exist; oral assurances should create contractual obligations or permit parol proof. | Defendants: no contractual duty to file specific claims; parol evidence barred; no enforceable modification. | Affirmed as to breach-of-contract claims; district court rightly granted summary judgment. |
Key Cases Cited
- Pancake House, Inc. v. Redmond, 716 P.2d 575 (Kan. 1986) (distinguishing malpractice in tort from contract—tort where duty is imposed by law, contract where duty arises from agreement)
- Juhnke v. Hess, 506 P.2d 1142 (Kan. 1973) (attorney’s failure to perform an expressly retained task—appeal filing—sounds in contract)
- Bowman v. Doherty, 686 P.2d 112 (Kan. 1984) (failure to take necessary steps in representation can sound in tort; tort permits punitive damages)
- Kan. Pub. Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc., 936 P.2d 714 (Kan. 1997) (malpractice characterized as tort where duty is one imposed by law to provide sound legal services)
- Jeanes v. Bank of Am., N.A., 191 P.3d 325 (Kan. Ct. App. 2008) (malpractice sounding in tort where claim is failure to exercise ordinary legal skill; contract claim cannot merely duplicate tort claim)
- Pittman v. McDowell, Rice & Smith, Chartered, 752 P.2d 711 (Kan. Ct. App. 1988) (applying Juhnke: failure to perform a specifically bargained-for step in representation sounds in contract)
- Temmen v. Kent-Brown Chevrolet Co., 535 P.2d 873 (Kan. 1975) (discussing legal detriment and consideration principles relevant to contract modification)