MICHAEL C. RYAN and RYAN DATA EXCHANGE, LTD. d/b/a RYDEX, LTD., Plaintiffs-Appellants,
SIMMONS PERRINE MOYER BERGMAN, PLC, Defendant-Appellee.
from the Iowa District Court for Polk County, David N. May,
challenge the partial summary judgment on their claim of
Kenneth R. Munro of Munro Law Office, P.C., Des Moines, for
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.
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.
8, 2011, Ryan executed a retainer agreement with attorney
Jeffrey McGinness 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.
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.
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.
March 4, 2016, the parties deposed attorney Brad Skinner
about Skinner's role in the Risewick
litigation. 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
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 ...