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Estate of Bonifer v. Kullmann Klein & Dionenda, P.C.

Court of Appeals of Missouri, Eastern District, Third Division

November 18, 2014

THE ESTATE OF STEVEN A. BONIFER, BY & THROUGH CYNTHIA BONIFER AS PERSONAL REPRESENTATIVE OF THE ESTATE OF STEVEN A. BONIFER, Appellant,
v.
KULLMANN KLEIN & DIONENDA, P.C., Respondent

Appeal from the Circuit Court of St. Louis County. 11SL-CC02443. Honorable Tom W. DePriest, Jr.

David B. Cosgrove, Kurt J. Schafers, Mary E. Hodges, St. Louis, MO, for appellant.

Timothy J. Wolf, Patrick A. Bousquet, Patrick T. Cody, St. Louis, MO, for respondent.

Gary M. Gaertner, Jr., Judge. Kurt S. Odenwald, P. J., concurs. Robert G. Dowd, Jr., J., concurs.

OPINION

Gary M. Gaertner, Jr., Judge.

Page 766

Introduction

Appellant Estate of Steven A. Bonifer (Estate) appeals the trial court's grant of summary judgment in favor of Respondent Kullmann Klein & Dioneda, P.C. (KKD), on the Estate's claims of breach of fiduciary duty and conspiracy to commit fraud, arising from KKD's representation of Steven A. Bonifer (Decedent). Though there is ample evidence on the record from which the trial court could have found KKD did not fully comply with its duties owed to the Estate and Decedent; because the Estate failed to produce evidence that it was actually damaged by KKD's conduct, we affirm.

Page 767

Background

In 2006, Decedent retained Steven Dioneda (Lawyer) of KKD to represent Decedent in a personal injury claim against Wal-Mart. Decedent told Lawyer that he had been injured while shopping at Wal-Mart when a stack of boxes fell and struck him, knocking him to the ground. Lawyer obtained Decedent's medical records and began settlement negotiations with Wal-Mart. Wal-Mart initially sent an offer of $15,000 in September of 2007.

On March 21, 2008, Decedent died. Lawyer continued settlement negotiations with Wal-Mart, stating later that he had authority to do so from Decedent's surviving immediate family members: Robin Bonifer (Wife), and Decedent's two adult daughters. On July 8, 2008, Lawyer communicated to Wife that he received a final settlement offer from Wal-Mart of $35,000. Wife informed Lawyer that she and her daughters agreed they should accept the offer, which Lawyer did on July 31, 2008.

In the meantime, during the week following Decedent's death, Decedent's sister, Cynthia Bonifer (Sister), had called Lawyer and told him that Wife was under investigation regarding Wife's potential involvement in Decedent's death. Sister was eventually appointed as personal representative of the Estate in April of 2009, several months after Lawyer had accepted the $35,000 settlement (Settlement) with Wal-Mart.

In March of 2009, KKD filed a claim against the Estate for one third of the Settlement, which was the portion designated as a contingency fee in KKD's representation agreement with Decedent. In June of 2009, the Estate filed a lawsuit joining both Wal-Mart and KKD as defendants. The suit included a negligence claim against Wal-Mart for compensation of Decedent's injuries sustained when the stack of boxes fell on him. The suit also included claims of legal malpractice, breach of fiduciary duty, and conspiracy to defraud against KKD, arising from Lawyer's negotiation and acceptance of the Settlement after Decedent's death without involving the personal representative of the Estate. During discovery, the Estate requested KKD's entire legal file related to representation of Decedent. KKD did not turn over the file initially, but the Estate did receive it sometime before trial, after filing a motion to compel discovery.

In December of 2009, Wal-Mart filed a motion to enforce the Settlement. The Estate opposed enforcement of the Settlement, arguing that Lawyer did not have authority to negotiate and accept the Settlement after Decedent's death. While Wal-Mart's motion was pending, the Estate sent a settlement offer of $54,000, which Wal-Mart rejected. The trial court eventually denied Wal-Mart's motion to enforce the Settlement. Subsequently, the Estate dismissed KKD from the lawsuit because the Estate determined that KKD was undermining the Estate's negligence claim against Wal-Mart by disclosing facts harmful to ...


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