from the United States District Court for the District of
Kansas (D.C. No. 2:13-cv-02534-EFM-TJJ)
on the briefs:[*]
V. Johnson of Sloan, Eisenbarth, Glassman, McEntire &
Jarboe, L.L.C., Topeka, Kansas, for Plaintiff-Appellant.
R. Smith, Gates Shields Ferguson Hammond, P.A., Overland
Park, Kansas, for Defendants-Appellees James L. Wisler and
F. Church of Morrow Willnauer Klosterman Church, Kansas City,
Missouri, for Defendant-Appellee David Trevino.
HARTZ, HOLMES, and MATHESON, Circuit Judges.
HOLMES, CIRCUIT JUDGE.
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.
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,
Sylvia's initial complaint characterized his claims as
sounding both in tort and in contract. Specifically, he
faulted (1) both individual defendants for 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.
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
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,
hold 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.
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, 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.
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
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. The complaint filed by Mr. Trevino,
however, omitted both retaliation claims (i.e., FMLA
retaliation and workers' compensation retaliation).
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.
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
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 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.
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.
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.
doing so, the district court held that Mr. Sylvia had failed
to state a 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.
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
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.
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).
Dismissal of Mr. Sylvia's Alleged Tort Claims
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 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
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
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.
Kansas Caselaw Characterizing Legal Malpractice
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
leading Kansas case on the characterization of legal
malpractice claims, Pancake House, offers the
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 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.").
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
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").
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.
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).
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.
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 ...