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Stender v. Blessum

Supreme Court of Iowa

June 16, 2017

MELISSA STENDER, Appellant,
v.
ANTHONY ZANE BLESSUM, Appellee, MINNESOTA LAWYERS MUT. INS. CO., Intervenor-Appellee.

         Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

         A jury trial was held on plaintiff's claims of legal malpractice, assault and battery, and punitive damages. The jury returned verdicts in favor of the defendant on the submitted legal malpractice claims and in favor of the plaintiff on the assault and battery claim. The jury also awarded the plaintiff damages and punitive damages. The plaintiff appeals and the defendant cross appeals. AFFIRMED.

          Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, and Laurie Anne Stewart of Stewart Law & Mediation, P.L.L.C., Panora, for appellant.

          David L. Brown and Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for appellee.

          Richard J. Thomas of Burke & Thomas, PLLP, Arden Hills, Minnesota, for intervenor-appellee.

          ZAGER, Justice.

         A plaintiff brought claims against her former attorney for legal malpractice, assault and battery, and punitive damages. At the close of the plaintiff's case, the district court granted the defendant's motion for directed verdict on two legal malpractice claims: one regarding the preparation of a will and the other for breach of fiduciary duty. The district court submitted to the jury two claims of alleged legal malpractice: representation of the plaintiff in her divorce and representation of the plaintiff in pursuing a claim for assault against her former spouse. The jury returned verdicts for the defendant on the two submitted legal malpractice claims and returned verdicts for the plaintiff on the assault and battery claim and on the punitive damages claim. The jury awarded the plaintiff combined damages of $498, 562.44. The plaintiff appeals the district court's order granting the motion for directed verdict on the two additional claims of legal malpractice. The plaintiff also appeals various evidentiary rulings made by the district court. The defendant cross-appeals on the issue of damages. For the reasons discussed below, we affirm the district court. While we find that the defendant's cross-appeal was untimely, we reject on the merits the defendant's challenge to the amount of the jury award.

         I. Background Facts and Proceedings.

         In September 2008, Melissa Stender met with attorney Anthony Zane Blessum for legal assistance in a divorce proceeding against her then-husband, Phillip Stender.[1] Blessum had previously represented Phillip in a separate legal matter. In October, Blessum filed a petition for dissolution of marriage on Stender's behalf. As noted in the petition, the parties were married in 1993. Blessum did not conduct any written discovery, take depositions, or obtain financial affidavits in the case.

         In February 2009, Blessum drafted a proposed divorce decree and sent it to both Stender and Phillip. On March 4, Blessum sent a second proposed divorce decree that included changes that Blessum had not discussed with Stender. Stender was unaware that Blessum had made changes in the second proposed divorce decree and believed the changes unfairly favored Phillip. When Phillip received the second proposed decree, he went to the couple's home and physically and sexually assaulted Stender.

         On March 25, Stender signed the second proposed decree upon the advice of Blessum. Stender testified at trial that she was a homemaker for most of her marriage to Phillip. She testified she was unaware of the amount in Phillip's retirement accounts, the state of the household finances, or the amount of alimony to which she might be entitled. She signed the decree based on Blessum's advice that the contents of the decree represented everything she was entitled to receive in the divorce. The final divorce decree awarded Stender $110, 000 from Phillip's retirement account, half of the home furnishings, and $400 per week in spousal support for a period of four and one-half years. The decree awarded Phillip all of the other accounts and the majority of the other assets of the marriage including the family home, a number of vehicles and motorcycles, and farm equipment. Blessum filed the decree on March 30. However, Blessum failed to prepare or file a Qualified Domestic Relations Order (QDRO) to document Stender's interest in Phillip's retirement account. Stender was unaware that Blessum had not prepared or filed the QDRO.

          Approximately two years later, in mid-March 2011, Blessum called Stender. Blessum informed Stender that Phillip had called to ask if he would receive the entire balance of his retirement account if "something happened" to Stender. Stender was afraid of Phillip after the assault and asked Blessum if he believed Phillip's call was threatening. Blessum told her that was exactly how he took the call. Stender became concerned about how her assets would be divided among her three children if she were to pass away and asked Blessum if she needed a will. Blessum responded in the affirmative.

         Stender met with Blessum on March 22 to discuss drafting a will. Stender told Blessum that she wanted all of her estate assets divided equally between her three children. Based on Blessum's advice, Stender believed that Phillip would get all of her assets after her death if she did not draft a will. This was inaccurate because, even if Stender had died intestate, Stender's probate assets would have been equally divided between her three children.[2] However, the issue of Stender's interest in Phillip's retirement account had still not been addressed by entry of a QDRO.

         After the meeting, Blessum called Stender and asked if she wanted to meet and catch up. She agreed, and they met at a local restaurant. During this meeting, Blessum told Stender he was unhappy in his marriage. At the end of the evening, Blessum kissed Stender. After Stender got in her car but before she left the parking lot, Blessum sent her a text message asking if they could meet again. Over the next two weeks, Blessum and Stender continued to meet and talk about intimate topics such as Stender's childhood trauma and her marital and sexual abuse. Within two or three weeks, they began a sexual relationship.

         While this sexual relationship continued, Blessum performed several other legal services for Stender. On June 28, Stender executed the will that Blessum had prepared. On August 9, Blessum sent a demand letter to Phillip. In the letter, Blessum demanded that Phillip agree to three changes in the divorce decree in exchange for Stender's refraining from filing a civil suit against him for the physical and sexual assault Phillip committed against her in 2009. Blessum was aware the assaults occurred in 2009, and either knew or should have known the statute of limitations had run by the time he sent the letter to Phillip.[3]On August 23, Blessum filed the QDRO formalizing Melissa's interest in Phillip's retirement account. In January 2012, while the relationship was still ongoing, Blessum assisted Stender with another legal matter.

         On June 10, Stender went to Blessum's house to confront him about rumors he was seeing other women. When she arrived, she went into the kitchen where she noticed a bottle of wine with two glasses set on the counter and a frying pan with food on the stove. She picked up the pan from the stove and confronted Blessum by asking if he was cooking for another woman. While Stender was holding the pan, Blessum was standing in front of her. At some point, the pan spilled onto Stender's shoulder and hot grease caused burns on her back. Because the grease went through her clothing, Blessum began taking off Stender's shirt.

          Stender became anxious from the confrontation and the grease burn. Blessum went outside to retrieve Stender's purse from her vehicle that contained her anxiety medication. When Blessum came back inside with Stender's purse, she told him she was done with the relationship and bent down to get the pills out of her purse. While Stender was bent over, but before she could take the pills, Blessum began hitting her arm, forearm, head, and neck. After Blessum hit her, Stender grabbed some of the pills that had spilled on the floor and swallowed them. Stender tried to run out of the house, but Blessum caught her and dragged her back inside. Blessum threw her into the corner and started calling her a "subservient slave." He pulled her through the living room onto the couch and threatened to sexually assault her. Blessum told Stender if she thought the "other men have hurt [her], . . . just wait and see what [he] do[es] to [her]." He told her he was going to make her vomit her pills so she would remember the entire assault.

         Blessum went to the kitchen to get a glass of water to force Stender to vomit. After he left the room, Stender grabbed Blessum's home phone and called 911. She was unaware whether the call went through but left it under a pile of papers when she heard Blessum returning to the living room. The call connected and the remainder of the assault was recorded. Police were dispatched to Blessum's house. Before the police responded, Blessum pinned Stender to the couch and strangled her. He then poured water down her throat and put his fingers in her mouth in an attempt to make her vomit. Stender kept screaming in hopes that the call had connected to the 911 operator. Blessum again pinned Stender with his knees and bound her arms over her head. He began to forcefully remove her jeans. Blessum had removed her jeans past her hips when the police knocked on the door. Stender began screaming for help. The police arrested Blessum at the scene. The police also called an ambulance, and Stender was transported to the hospital for medical treatment.

         Later in June, Blessum began sending letters to Stender. In the letters, he acknowledged that he had dated other women at the same time as Stender and that he gave her a sexually transmitted disease. The letters also acknowledged the assault and included an apology for all of his misdeeds. Stender also received anonymous items in the mail during this time. On September 19, Stender filed a petition for relief from domestic abuse against Blessum. The district court granted a temporary restraining order that same date. On October 29, the district court entered a protective order by consent agreement between the parties.

         Stender obtained new counsel in October and her new counsel began requesting Stender's client files from Blessum. Blessum delivered the client files in January 2013, but the documents related to the preparation of Stender's will were missing.

         On January 14, the State filed criminal charges against Blessum for the assault against Stender. Blessum was charged with assault causing bodily injury, see Iowa Code § 708.2(2), and assault with intent to commit sexual abuse, see id. § 709.11(2). Blessum ultimately pleaded guilty to assault causing bodily injury. On March 26, Blessum was sentenced to one year in jail with all but seven days suspended. A sentencing no contact order was also entered on that date restraining Blessum from any contact with Stender for five years.

         On December 4, Stender filed this civil action against Blessum. She alleged claims of domestic assault, battery, false imprisonment, negligent transmission of sexually transmitted diseases, outrageous conduct and intentional infliction of emotional distress, legal malpractice, and breach of fiduciary duty.

         On March 27, 2015, we suspended Blessum's license to practice law for eighteen months. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Blessum, 861 N.W.2d 575, 595 (Iowa 2015). We found he violated three of our Iowa Rules of Professional Conduct. Id. at 577. Blessum violated rule 32:1.8(j) (sexual relationship with a client), rule 32:8.4(b) (criminal act adversely reflecting on a lawyer's fitness to practice law), and rule 32:1.15(c) (trust account practices). Id. at 588-91.

         On June 25, Stender voluntarily dismissed two claims in her civil lawsuit: the claim for false imprisonment and the claim for negligent transmission of sexually transmitted diseases. Trial was set to commence on July 6.

         On July 2, Stender's counsel posted a Facebook message expressing her dissatisfaction with the outcome of Blessum's attorney disciplinary case. The Facebook post also stated "I hope a jury will be a little harder on him!" Blessum moved for a continuance of the trial, which the district court granted, noting that the timing of the post was "disturbing and suspicious." The trial was rescheduled for November 2. On October 29, Stender voluntarily dismissed her claims for outrageous conduct and intentional infliction of emotional distress.

         Jury trial commenced on November 2, and Stender concluded her presentment of evidence on November 10. Blessum moved for a directed verdict on all of the legal malpractice claims and on the breach-of-fiduciary-duty claim. The district court granted a directed verdict on the legal malpractice claim regarding the preparation of the will and on the breach-of-fiduciary-duty claim. The district court concluded that, with regard to the drafting of the will, there was no evidence that the will contained any defect or that its preparation otherwise fell below the standard of care for attorneys. The district court also granted a directed verdict on the claim for breach of fiduciary duty. The district court concluded that there was not a "single piece of evidence that the plaintiff suffered emotional damage from just being in a relationship." The district court denied the motion for directed verdict on two additional claims of legal malpractice.

         On November 13, the Friday before closing arguments were set to commence, the Des Moines Register published an online opinion article comparing the jury trial to the disciplinary case and noting that "hopefully the jury will do something more." On Sunday, November 15, the article was published in the print version of the newspaper.

         On November 16, the jury heard closing arguments. The district court submitted four claims for the jury to consider: (1) legal malpractice in Blessum's representation of Stender in her divorce, (2) legal malpractice in Blessum's representation of Stender in her potential claim for assault or battery against her ex-husband, (3) assault and battery by Blessum, and (4) punitive damages. On November 17, the jury returned its verdicts. The jury decided in Blessum's favor on the two legal malpractice claims. The jury returned verdicts in Stender's favor on the assault and battery claim and on the punitive damages claim. The jury awarded Stender $398, 562.44 for the assault and battery and $100, 000 in punitive damages, for a total award of $498, 562.44.

         On November 18, one of the jurors contacted the district court judge to convey that he had a hard time sleeping the night the jury reached its verdicts, and he felt as though justice had not been served. Specifically, the juror believed five of the six jurors did not agree with the amount of damages that were ultimately awarded to Stender. The juror also believed that the Des Moines Register article played a role in the jury deliberations because he claimed a number of jurors had read the article prior to deliberating. Because of the juror's concerns, the district court set a hearing on the matter for November 23.

         On November 25, before the district court issued its ruling, Stender filed a notice of appeal, thus depriving the district court of jurisdiction to hear any posttrial matters, including the issues raised by the juror. In her appeal, Stender claims that the district court erred in granting the directed verdicts. Blessum cross-appealed for a new trial on the issue of damages awarded for the assault and battery and punitive damages claims. We retained the appeal.

         II. Standard of Review.

         We review a ruling on a motion for a directed verdict for correction of errors at law. Hook v. Trevino, 839 N.W.2d 434, 439 (Iowa 2013). "We review the evidence in the light most favorable to the nonmoving party . . . ." Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 300 (Iowa 2013). In doing so, we take into consideration all reasonable inferences the jury could fairly make, regardless of whether there is any evidence in contradiction. Id. Ultimately, we decide whether the district court's determination that there was or was not sufficient evidence to submit the issue to the jury was correct. Id.

         We review evidentiary rulings for an abuse of discretion. Giza v. BNSF Ry., 843 N.W.2d 713, 718 (Iowa 2014). A district court abuses its discretion when it bases its decisions on grounds or reasons clearly untenable or to an extent that is clearly unreasonable. Sioux Pharm, Inc. v. Eagle Labs., Inc., 865 N.W.2d 528, 535 (Iowa 2015). A district court also abuses its discretion if it bases its conclusions on an erroneous application of the law. Id.

         When we review claims for excessive damages, "we view the evidence in the light most favorable to the plaintiff." Kuta v. Newberg, 600 N.W.2d 280, 284 (Iowa 1999). We should not "disturb a jury verdict for damages unless it is 'flagrantly excessive or inadequate, so out of reason so as to shock the conscience, the result of passion or prejudice, or lacking in evidentiary support.' " Id. (quoting Olson v. Prosoco, Inc., 522 N.W.2d 284, 292 (Iowa 1994)). We apply an abuse of discretion standard because the trial court had the advantage of seeing and hearing the evidence. Id.

         III. Analysis of the Rulings on the Motions for Directed Verdicts.

         Stender claims the district court erred in granting the motions for directed verdict for a number of reasons, which we address in turn.

         A. Per Se Legal Malpractice.

         Stender argues that the existence of an attorney-client sexual relationship forms a per se basis for her legal malpractice and breach-of-fiduciary-duty claims. While we have precedent recognizing that a violation of our ethical rules can be used as some evidence of negligence, Stender argues we should take that reasoning one step further and hold that a violation of the Iowa Rules of Professional Conduct can be introduced as per se evidence of legal malpractice in civil cases. As part of our analysis, it is important to provide some context to this requested relief.

         1. Iowa background.

         We have decided a number of cases involving our ethical rules and claims of legal malpractice. While we have generally allowed violations to be used as evidence of negligence, we have been careful to caution that evidence of negligence is not the same as conclusive proof of negligence. See Ruden v. Jenk, 543 N.W.2d 605, 611 (Iowa 1996); see also Vossoughi v. Polaschek, 859 N.W.2d 643, 649-50 (Iowa 2015); Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007).

         To establish a prima facie claim for legal malpractice, a plaintiff must produce substantial evidence demonstrating: (1) an attorney-client relationship existed giving rise to a duty; (2) the attorney violated or breached the duty, either by an overt act or a failure to act; (3) the breach of duty proximately caused injury to the client; and (4) the client did sustain an actual injury, loss, or damage. Trobaugh v. Sondag, 668 N.W.2d 577, 580 n.1 (Iowa 2005).

         In Ruden, we held that the plaintiff could use a violation of the Iowa Code of Professional Responsibility for Lawyers as evidence of negligence, but ultimately held that the attorney's acts or omissions were not sufficient to demonstrate proximate cause of any damages as a matter of law. Id. at 611-12. We also cautioned that while a violation may constitute "some evidence of negligence, " our ethical rules "do[] not undertake to define standards of civil liability." Id. at 611 (emphasis added). In Crookham v. Riley, we again noted that a violation of our disciplinary rules is "some evidence of negligence." 584 N.W.2d 258, 266 (Iowa 1998). We noted that expert testimony on the standard of care due to a client is normally required for a legal malpractice claim. Id.

         Additionally, the language of the Iowa Rules of Professional Conduct expressly addresses this issue. This language provides,

Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Nevertheless, since the rules do establish standards of conduct by lawyers, a lawyer's violation of a rule may be evidence of breach of the applicable standard of conduct.

Iowa R. Prof'l Conduct ch. 32 Scope [20]. This is similar to the scope contained in the ABA Model Rules of Professional Conduct. The model rules provide that a "[v]iolation of a [r]ule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached." Model Rules Prof'l Conduct Scope [20] (Am. Bar Ass'n 2014). The model rules also provide that the rules were not designed to be used as a basis for civil liability. Id. The rules may instead be used as evidence of a breach of the standard of conduct. Id.

         2. Approach of other states.

         There are three approaches courts use to determine whether a violation of an ethical rule may be used to establish a per se private cause of action for legal malpractice. First, one jurisdiction allows the violation of an ethical rule to create a rebuttable presumption of negligence. Hart v. Comerica Bank, 957 F.Supp. 958, 981 (E.D. Mich. 1997) (noting that violations of the ethical rules "create a rebuttable presumption of legal malpractice, although they do not constitute negligence per se").[4] A second approach, adopted by a larger number of courts, is that ethical rule violations are inadmissible in legal malpractice claims. See Ex parte Toler, 710 So.2d 415, 416 (Ala. 1998) (holding that the trial judge properly excluded evidence of a violation of the rules of professional conduct because such evidence cannot be used in a legal malpractice action); Orsini v. Larry Moyer Trucking, Inc., 833 S.W.2d 366, 369 (Ark. 1992) (holding that it was proper for the trial court to refuse to admit into evidence the model rules of professional conduct because such rules were meant as guidelines only and were not meant to establish a civil cause of action for malpractice); Webster v. Powell, 391 S.E.2d 204, 208 ( N.C. Ct. App. 1990) (holding that the trial court properly excluded evidence of a violation of an ethical rule because such a breach is not a basis for civil liability); Hizey v. Carpenter, 830 P.2d 646, 652-54 (Wash. 1992) (en banc) (holding that the jury not be informed of rules of professional conduct, either through jury instructions or expert testimony, because the rules were guidelines and provided an ethical standard distinct from the civil standard). But overwhelmingly, a third approach is that the violation of an ethical rule alone does not establish a per se private cause of action for legal malpractice but may be used as relevant evidence for the standard of care. Accordingly, a number of state supreme courts, [5] state appellate courts, [6] and federal courts[7] have held that the violation of an ethical rule, without more, is insufficient to establish a per se cause of action for legal malpractice.

         We likewise choose to adopt the majority approach and hold that a violation of one of our Iowa Rules of Professional Conduct cannot be used to establish a per se claim for legal malpractice. A violation may, however, be used as some evidence of negligence as provided in our prior caselaw. See, e.g., Crookham, 584 N.W.2d at 266. But before a violation of our rules of professional conduct can be used-even as some evidence of negligence-there must be an underlying actionable claim against the attorney arising out of how the attorney mishandled a legal matter. To find differently would mean that a violation of the rules themselves provides plaintiffs with an independent cause of action. This result is one that both our rules and our cases have specifically rejected. Id. ("Violation of the disciplinary rules constitutes some evidence of negligence. In a legal malpractice action, expert testimony upon the standard of care is usually required." (Citation omitted.)); Ruden, 543 N.W.2d 611 ("Although the Iowa Code of Professional Responsibility for Lawyers does not undertake to define standards of civil liability, it constitutes some evidence of negligence."); Iowa R. Prof'l Conduct ch. 32 Preamble & Scope [20] ("Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.").

         Here, Blessum's sexual relationship in violation of our rules of professional conduct does not by itself give rise to a legal malpractice claim. In order to succeed on her claim for legal malpractice, Stender would need to demonstrate a duty that was violated and not just the sexual relationship alone. See, e.g., Ruden, 543 N.W.2d at 610. Stender did not introduce evidence of any breach of duty owed to her in her legal malpractice claim separate and distinct from the existence of an attorney-client sexual relationship. Likewise, Stender did not introduce evidence of any injury, loss, or damage separate from the underlying sexual relationship. As such, the violation of rule 32:1.8(j) cannot be used, on its own, to establish a per se case of legal malpractice.

         B. Drafting of the Will.

         Stender argues that Blessum committed legal malpractice by his actions in drafting her will. The district court granted a directed verdict on this claim for legal malpractice, finding Stender did not allege any defect in the will itself. However, Stender argues the basis for this claim of legal malpractice is not that the will is defective. Rather, she asserts the bases of her claim for legal malpractice in drafting the will are multifaceted and include the following: (1) Blessum falsely and knowingly represented to Stender that a will was necessary to ensure that her children would receive her estate in the event of her death; (2) Blessum made such a false representation for the sole purpose of pursuing a sexual relationship with her; (3) Blessum used his power and influence, and the knowledge of Stender's vulnerability and fear of her ex-husband, to induce her into believing that her life had been threatened and that she needed a will as soon as possible to safeguard her children's inheritance; and (4) Blessum drafted the will while engaged in a sexual relationship with her. Stender claims the directed verdict was in error and this malpractice claim should have been submitted to the jury.

         To establish a claim for legal malpractice, a plaintiff must produce substantial evidence demonstrating (1) an attorney-client relationship existed giving rise to a duty; (2) the attorney violated or breached the duty, either by an overt act or a failure to act; (3) the breach of duty proximately caused injury to the client; and (4) the client did sustain an actual injury, loss, or damage. Sabin v. Ackerman, 846 N.W.2d 835, 839 (Iowa 2014); Trobaugh, 668 N.W.2d at 580. Legal malpractice exists when the attorney fails "to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake." Millwright v. Romer, 322 N.W.2d 30, 32 (Iowa 1982) (quoting Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 422-23 (Cal. 1971)); see also Ruden, 543 N.W.2d at 610-11.

         In a claim for legal malpractice, "unless the plaintiff's claim is based on standards of care and professionalism understood and expected by laypersons, the plaintiff will have to retain an expert to go forward."[8] Barker v. Capotosto, 875 N.W.2d 157, 167 (Iowa 2016). Generally, we require expert testimony on the standard of care in legal malpractice actions. Crookham, 584 N.W.2d at 266. This is because the measure for the standard of care required is that of a similarly situated ordinary lawyer. 16 Gregory C. Sisk & Mark S. Cady, Iowa Practice Series:TM Lawyer & Judicial Ethics § 13:4(b), at 1106-07 (2015).

         The question of whether the drafting of a will fell outside the ordinary skill, prudence, or diligence expected of a similarly situated, ordinary attorney is a technical legal question that requires the use of an expert witness. The technicalities of drafting a will and the question of negligence and causation are not in the realm of topics normally understood or expected of laypersons. Stender did not introduce any expert witness testimony on the issue of whether Blessum committed legal malpractice in the drafting of her will.

         Likewise, Stender does not argue that the will prepared by Blessum was defective. The lawyer's duty in a legal malpractice case is "to use 'such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise' in performing the task which he undertakes." Ruden, 543 N.W.2d at 610-11 (quoting Millwright, 322 N.W.2d at 32). A claim for legal malpractice is necessarily grounded in the allegation that the legal services provided by an attorney were negligently performed. In order to establish a prima facie claim of legal malpractice, Stender was required to produce evidence showing what the duty was and how the attorney breached this duty. Then, even if Stender did produce evidence that such a duty was breached, the attorney's breach must have caused "actual injury, loss, or damage." Vissoughi, 859 N.W.2d at 649 (quoting Ruden, 543 N.W.2d at 610). An attorney's act or omission that breached the duty must cause injury to Stender's interest by way of loss or damage. Id. Stender failed to introduce any evidence, separate from the sexual relationship, of a breach of any duty owed to her. Finally, there was no evidence of any actual injury, loss, or damage claimed by Stender separate from the damages resulting from the assault. We affirm the decision of the district court granting the motion for directed verdict as to this claim of legal malpractice.

         C. Breach-of-Fiduciary-Duty Claim.

         In the district court, Stender sought to instruct the jury on a claim for breach of fiduciary duty as a separate and independent cause of action.[9] After the close of Stender's case-in-chief, the district court granted Blessum's motion for directed verdict. The district court found the claim was not supported by any evidence in the record.

         The issue on appeal in this case is one of first impression for us: whether the sexual relationship between Stender and Blessum, by itself, gives rise to an independent cause of action for breach of fiduciary duty. Stender argues that it does, as she and Blessum were in a sexual relationship while they were also in a fiduciary, attorney-client relationship. At the outset, we recognize that the creation of an attorney-client relationship does impose on attorneys certain fiduciary duties. See Kurth v. Van Horn, 380 N.W.2d 693, 696 (Iowa 1986) ("Some relationships necessarily give rise to a fiduciary relationship . . . [and] would include those between an attorney and client . . . ."). The creation of an attorney-client relationship does not, however, impose upon the attorney fiduciary duties that extend on indefinitely or into aspects of an attorney's personal life outside the scope of the attorney-client relationship. Wagner v. Wagner, 45 N.W.2d 508, 509 (Iowa 1951) ("[A] person in a fiduciary relationship to another is under a duty to act for the benefit of the other as to matters within the scope of the relationship . . . .").

         A number of other courts have directly considered this issue. These courts have concluded that a sexual relationship between an attorney and a client, when it had no impact on the legal services provided, does not give rise to a claim for breach of fiduciary duty. The leading case on the issue is Kling v. Landry, 686 N.E.2d 33 (Ill.App.Ct. 1997). The attorney, Landry, represented a client, Kling, in two separate legal matters. Id. at 35. Kling claimed that Landry coerced her into a sexual relationship during the course of the representation. Id. Kling alleged that, while Landry was representing her in a dissolution of marriage action, he came to her home to prepare for trial. Id. at 36. While at her home, Landry threw her on the bed and began to initiate sexual intercourse. Id. Kling alleges she submitted to the sexual intercourse because she was afraid Landry would not continue to represent her if she refused. Id. After the final judgment for dissolution of marriage was entered, Landry represented Kling ...


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