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September 21, 1993


APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY. The Honorable William Rex Beavers, Judge

Before Ulrich, P.j., Breckenridge and Hanna, JJ.

The opinion of the court was delivered by: Breckenridge

Curtis and Linda Rodgers appeal from the trial court's order granting summary judgment in favor of Daniel Czamanske and Scott Orr in a legal malpractice action. The Rodgers raise one point on appeal alleging that the trial court erred in granting summary judgment because of the existence of genuine issues of material fact. The judgment is affirmed in part, reversed in part and remanded for trial.

This case is the third case arising out of the same factual circumstances. In both Rodgers v. Acuncius , 736 S.W.2d 424 (Mo. App. 1987), and Acuncius v. Yeaman , 758 S.W.2d 73 (Mo. App. 1988), this court considered questions relating to the facts of the instant case. These disputes arose out of a real estate transaction in which the Rodgers signed a listing agreement with Garry Acuncius, a real estate broker from Mexico, Missouri, to sell their farm in Callaway County, Missouri. The listing agreement was signed on March 6, 1980 and was to be binding for a one-year period ending on March 6, 1981. The agreement provided that the Rodgers would pay Acuncius a commission of seven percent of the sale price of the property if the property were sold to or exchanged with any person procured by Acuncius during the term of the agreement or within three months thereafter.

During the same time period, Acuncius was also acting as a co-broker, in conjunction with Bell Investment Company, for Warren and Winifred Walz in the sale of their farm which was located in the Missouri counties of Randolph and Macon. Walz and Rodgers, with the assistance of Acuncius, negotiated an arrangement in which the Walz farm was to be traded for the Rodgers farm plus $840,000 because the Walz farm had a higher list price than the Rodgers farm. On March 5, 1981, Warren Walz and Curtis Rodgers executed a contract carrying out this agreement. The contract provided that the Walzes would pay Acuncius a commission. Approximately ten days prior to closing, Acuncius provided the Rodgers with closing statements which indicated that a seven percent commission was due from the Rodgers upon closing. Although the Rodgers informed Acuncius that they did not believe they owed commission because the Walzes were the actual sellers of the property, the closing proceeded as scheduled. On May 19, 1981, Acuncius filed suit against Bell Investment Company to collect a commission on the transaction. Acuncius amended his petition on November 9, 1981 by naming the Rodgers and the Walzes as additional parties.

A number of counterclaims and cross-claims were filed in the case. The Rodgers filed a counterclaim against Acuncius alleging that Acuncius had made fraudulent misrepresentations regarding the quantity and quality of the Walz farm. Specifically, the counterclaim alleged that Acuncius had misrepresented the number of acres of bottom land on the Walz farm and had failed to disclose that work had been done, without the proper permits, on the Chariton River which flows through the Walz farm.

A defendant, other than the Rodgers, sought to have the entire case stayed indefinitely to await the outcome of pending federal court litigation that had a bearing upon the issues in the instant case. Acuncius opposed the stay and, pursuant to Acuncius' request, the trial Judge severed Acuncius' claim for commission. On October 23, 1984, a separate trial was held on the claim. The jury found that Acuncius was entitled to a commission from the Rodgers and an interlocutory judgment was entered against the Rodgers in the amount of $74,600.

Both Czamanske and Orr represented the Rodgers at trial. After the judgment against them at trial, the Rodgers terminated their relationship with Czamanske and, shortly thereafter, with Orr. The Rodgers hired Thomas Bellmann to represent them at the trial of their counterclaim. On March 11, 1986, trial commenced on the Rodgers' counterclaim but resulted in a mistrial. On July 15, 1986, Bellmann dismissed the Rodgers' counterclaim, which had been pending in Boone County, and Acuncius' interlocutory judgment for $74,600 became final. The Rodgers' motion for new trial was denied on September 15, 1986. The Rodgers appealed claiming that the trial court erred in severing Acuncius' claim. Although Orr and Czamanske had filed the motion for new trial before the Rodgers sought new counsel, Bellmann represented the Rodgers in their appeal of the judgment after it became final. In Rodgers , 736 S.W.2d at 427, this court reviewed and affirmed the trial court's judgment.

After the July 15, 1986 voluntary dismissal of their counterclaim, the Rodgers filed suit in Platte County on the same cause of action as the counterclaim in Boone County had alleged. Acuncius filed a motion to dismiss, which was denied. He then secured a preliminary order in prohibition to enjoin the trial court from proceeding to trial. This court made the preliminary order in prohibition absolute in Acuncius , 736 S.W.2d 424 , after determining that the counterclaim was compulsory and could not be brought as a separate cause of action in Platte County since it had been dismissed in Boone County.

In October of 1989, the Rodgers filed an action for legal malpractice against Czamanske, Orr and Bellmann. *fn1 The Rodgers' first amended petition alleged that Orr and Czamanske were negligent in failing to present at trial the Rodgers' fraud and misrepresentation defenses against Acuncius and erroneously advising the Rodgers that the trial Judge had ruled that these defenses could not be presented at trial or mentioned in the presence of the jury when, in fact, there is no record of such a ruling. This court found in Rodgers , 736 S.W.2d at 427, which was the appeal of the trial court's order granting separate trials of Acuncius' claim and the Rodgers' counterclaim, that no finding or order of the trial court prevented the Rodgers from offering evidence of their defenses in order to defeat Acuncius' claim.

The Rodgers' petition also alleges that Orr and Czamanske were negligent in presenting incorrect assertions of fact which confused the jury as to the sequence of the misrepresentations by Acuncius, failing to preserve certain issues for appeal by not offering evidence of Acuncius' fraudulent misrepresentations as to the quantity and quality of the real estate, and failing to object to testimony by Acuncius as to alleged settlement negotiations between Acuncius and the Rodgers. Prior to trial, Acuncius testified in a deposition that Curtis Rodgers offered him $50,000 to settle the dispute over the commission. Curtis Rodgers has, throughout this litigation, denied that he made such an offer to Acuncius. At trial, Acuncius testified regarding the $50,000 settlement offer. Neither Czamanske nor Orr objected to this testimony.

The petition also alleges that Orr and Czamanske were negligent in allowing Acuncius to testify that the Walzes knew that he was to get a commission from both parties without objecting or attempting to introduce the signed statements of the Walzes indicating otherwise. Czamanske had acquired, prior to trial, a written statement and deposition testimony from the Walzes indicating that they were not aware that Acuncius expected the Rodgers to pay a commission. Orr represented in his opening statement that the Walzes' testimony would be presented and would show that they did not know Acuncius expected the Rodgers to pay a commission. Orr and Czamanske attempted at trial to introduce the deposition testimony of the Walzes, since the Walzes were out of the state of Missouri at the time of trial, but the trial court ruled that it was inadmissible.

Orr and Czamanske filed separate motions for summary judgment. The trial court granted the motions on April 10, 1992. The trial court's April 10, 1992 order was not final for purposes of appeal because a counterclaim filed by Czamanske was pending against the Rodgers. On May 29, 1992, however, the trial court entered an order making the April 10, 1992 order final for purposes of appeal. The Rodgers filed this timely appeal thereafter.

In their sole point relied on, the Rodgers contend that the trial court erred in granting summary judgment to Orr and Czamanske because genuine issues of fact were in dispute. The Rodgers argue that they presented unrebutted evidence that Orr and Czamanske were negligent and that their negligence caused the Rodgers to suffer damages. The Rodgers also argue that the question of whether Orr ...

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