United States District Court, W.D. Missouri, Southwestern Division
ROSEANN A. KETCHMARK, JUDGE.
a legal malpractice action brought by Plaintiff John Beshears
against Defendant Andrew Wood. Before the Court are
Wood's Motion for Summary Judgment (Doc. 42) and
Wood's Motion for Sanctions (Doc. 80). The motions are
fully briefed, and the Court heard oral argument. (Docs. 43,
78, 79, 81, 84; D.E. 86, Minute Entry.) For the reasons
below, the motion for summary judgment is
GRANTED and the motion for sanctions is
Motion for Summary Judgment
citizen of Missouri, is licensed to practice law in Missouri.
Beshears, a citizen of Arkansas, brings this action against
Wood for legal malpractice. Beshears' allegations for
legal malpractice against Wood relate to a probate action
involving the appointment of a guardian for Beshears and
conservator of his estate following an automobile accident.
In re John M. Beshears, No. 09MC-PR00045.
26, 2006, Beshears and his wife, Sue Beshears (Sue), were
injured in an automobile accident which killed Sue and left
Beshears in a coma. On June 30, 2006, Wood, as the attorney
for Charles and Ruth Reynolds, filed a petition in the
McDonald County, Missouri, Probate Division seeking
appointment of Charles and Ruth Reynolds as co-guardians of
Beshears and co-conservators of his estate. Thereafter, and
on that same day, the Probate Division ordered a hearing on
the Reynolds petition and appointed attorney Erin Willis to
asserts Wood was already his attorney at the same time when
Wood represented the Reynolds in the probate action.
According to Beshears, “this dual representation was
known to be a conflict of interest by [Wood] and [Wood] never
obtained permission from either of his clients to represent
both.” (Doc. 1 at ¶ 22.) Beshears asserts that
Wood committed numerous acts of negligence and malpractice
against Beshears in Wood's performance regarding the
probate action. Beshears asserts that, among other things,
Wood was negligent in failing to investigate the
qualifications of the Reynolds to serve as guardian and
conservator and in failing to keep the Reynolds from
misappropriating monies from Beshears' estate.
Beshears' Complaint initially asserted two separate
counts: legal malpractice and breach of fiduciary
duty/constructive fraud. The Court previously found that
Beshears' claim for breach of fiduciary duty was subsumed
by his claim for legal malpractice. (Doc. 22.) After which,
the case proceeded with discovery on the single claim for
legal malpractice. Wood moves for summary judgment arguing
that Beshears has not made a submissible case for legal
for Summary Judgment
Fed.R.Civ.P. 56, “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” “As to materiality,
the substantive law will identify which facts are
material.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “Only disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment.” Id. “[A] dispute about a
material fact is ‘genuine,' . . . if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. To determine if a
dispute about a material fact is genuine, the court's
function is not “to weigh the evidence” but to
“view the evidence ‘in the light most favorable
to the opposing party.'” Tolan v. Cotton,
572 U.S. 650, 656-57 (2014) (citations omitted).
the movant fulfills its responsibility of informing the court
of the basis for its motion, identifying the portions of the
record that demonstrate the absence of a genuine issue of
material fact, the nonmovant must respond by submitting
evidentiary materials that set out specific facts showing
that there is a genuine issue for trial.” Hess v.
Union Pac. R.R. Co., 898 F.3d 852, 857 (8th Cir. 2018)
(quotation marks and citations omitted). “The mere
existence of a scintilla of evidence” to support a
party's position on a material fact is not sufficient to
create a genuine dispute as to that purported fact.
Anderson, 477 U.S. at 252. Similarly, there is not a
genuine dispute as to a fact if the evidence makes the
party's position on the fact merely colorable, or if the
evidence is not significantly probative. Id. at
249-50. “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
presents two arguments to support his position that Beshears
has not made a submissible claim for legal malpractice.
First, Wood contends that Beshears cannot make a submissible
case against him for legal malpractice because Beshears
failed to file expert designations. In response, Beshears
points out that he was permitted to file a belated expert
report after Wood's motion was filed. (Docs. 52, 54.)
Wood's reply does not respond to Beshears' point that
an expert report has now been submitted. (Doc. 79.) Wood, by
his reply, appears to abandon his first argument. The Court
therefore need not address Wood's first argument.
second argument for summary judgment, Wood contends that
Beshears has failed to produce evidence demonstrating that an
attorney-client relationship existed between Wood and
Beshears regarding the probate action. Beshears does not
address Wood's second argument in his opposition brief.
Although Beshears' brief is silent regarding the second
argument, summary judgment is not appropriate solely on the
basis of the responding party's default. See
Fed. R. Civil P. 56(e). Before summary judgment is
appropriate, the Court must determine the merits of
Wood's argument based on the uncontroverted facts and the
applicable law governing legal malpractice claims.