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Ryan v. Simmons Perrine Moyer Bergman, PLC

Court of Appeals of Iowa

June 20, 2018

MICHAEL C. RYAN and RYAN DATA EXCHANGE, LTD. d/b/a RYDEX, LTD., Plaintiffs-Appellants,
v.
SIMMONS PERRINE MOYER BERGMAN, PLC, Defendant-Appellee.

          Appeal from the Iowa District Court for Polk County, David N. May, Judge.

         Plaintiffs-Appellants challenge the partial summary judgment on their claim of negligence.

          Kenneth R. Munro of Munro Law Office, P.C., Des Moines, for appellant.

          Robert V.P. Waterman Jr. and Joshua J. McIntyre of Lane & Waterman LLP, Davenport, for appellee.

          Considered by Vogel, P.J., and Doyle and Bower, JJ.

          VOGEL, Presiding Judge.

         Michael C. Ryan and his business Ryan Data Exchange, Ltd. (collectively, "Ryan") appeal the district court's grant of partial summary judgment, which entered judgment on two paragraphs of their petition alleging negligence against Simmons Perrine Moyer Bergman, PLC (Simmons). Ryan argues the district court erred in finding Simmons cannot be a proximate cause of Ryan's loss. We agree with the district court that Simmons's withdrawal as counsel left sufficient time for successor counsel to file a breach-of-contract claim and affirmative defenses, had such been deemed warranted by successor counsel. Therefore, we affirm the partial summary judgment.

         On June 8, 2011, Ryan executed a retainer agreement with attorney Jeffrey McGinness[1] of Simmons for potential litigation against Christopher Risewick and his businesses (collectively, "Risewick"). On August 8, Simmons filed suit on Ryan's behalf against Risewick, alleging breach of fiduciary duty, interference with existing and prospective business, negligent misrepresentation, and fraudulent misrepresentation (the Risewick litigation). In response, Risewick filed a counterclaim against Ryan seeking payment for contractual debts. The scheduling order closed the pleadings on November 29, 2012. On July 12, 2012, Risewick moved for summary judgment on Ryan's claims and their counterclaim. On July 27, Simmons moved for leave to withdraw as Ryan's counsel in the Risewick litigation. On August 8, the court granted Simmons leave to withdraw. On August 30, Ed Skinner and R. Bradley (Brad) Skinner of Skinner Law Office (collectively, "Skinner") entered an appearance on behalf of Ryan. Skinner never filed a resistance to the motion for summary judgment. On October 16, Skinner filed, and the court accepted, a joint consent to judgment, in which Ryan dismissed his claims with prejudice, agreed to adverse judgment on the counterclaim, and agreed to pay fees and costs.

         On August 12, 2014, Ryan filed the petition for the proceeding at issue. The petition claims Simmons committed negligence, fraud, and breach of contract in representing Ryan during the Risewick litigation. Regarding negligence, the petition claims Simmons breached the standard of care with several of its actions, including:

8(g) In failing to amend the Petition to include a breach of contract claim and any other claims which were still viable. . . . .
8(i) In failing to plead proper affirmative defenses to the counterclaim filed by the Defendants in the underlying case.

         On December 14, 2014, Simmons initially filed for summary judgment on all counts. Regarding paragraphs 8(g) and (i), Simmons argued Ryan had sufficient time and ability to proceed through Skinner, which severed any causation Simmons had for Ryan's alleged harm. On February 16, 2015, the district court denied summary judgment. Regarding the negligence claim, the court noted issues of causation are ordinarily for the jury to decide. The court noted "the possible effect of McGinness' malfeasance on Ryan's options when [Simmons] chose to withdraw, " and it refused to find Simmons left enough time for Skinner to respond to the lawsuit as a matter of law.

         On March 4, 2016, the parties deposed attorney Brad Skinner about Skinner's role in the Risewick litigation.[2] Brad testified Ed Skinner performed the majority of the firm's work on the case, with the two of them splitting the work 70/30 or 80/20. According to Brad, they recommended Ryan enter into the consent to judgment with Risewick to create "the softest landing" possible because Ryan's claims were likely time-barred and the counterclaim was strong. Brad also testified about the time constraints they faced when they took over the case from Simmons:

Q. Was lack of time for you to fully evaluate the case ever a factor in your decision to advise [Ryan] to settle and agree to the consent judgment?

A. Not the lack of our time to work with things, our lack of time with what was going on with the Court system and the pressures that were out ...


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