Estate of Lucas Lodermeier v. John L. Timmons

• Court: Court of Appeals of Iowa
• Decided: September 12, 2018
• Docket: 18-0027
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-0027 Filed September 12, 2018

ESTATE OF LUCAS LODERMEIER, Plaintiff-Appellant,

vs.

JOHN L. TIMMONS, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Story County, Kurt L. Wilke, Judge.

The estate of Lucas Lodermeier appeals a directed verdict in a legal-

malpractice claim. AFFIRMED.

Andrew J. Zbaracki of Newbrough Law Firm, LLP, Ames, for appellant.

David L. Brown and Tyler R. Smith of Hansen, McClintock & Riley, Des

Moines, for appellee.

Considered by Potterfield, P.J., and Bower and McDonald, JJ. 2

BOWER, Judge.

The estate of Lucas Lodermeier (Lodermeier) appeals a directed verdict in

a legal malpractice claim against John Timmons. Because we find no evidence of

the amount of collectability against the initial defendant to support damages in the

legal malpractice claim, we affirm.

I. Background Facts and Proceedings

On October 8, 2010, Lucas Lodermeier was injured in an accident for which

he was not at fault. Lodermeier suffered some scrapes, and the other driver died.

Lodermeier was reluctant to return to truck driving and did not work for six months.

He met with attorney Timmons for representation in a suit to recover for injuries

arising from the accident.

On October 9, 2012, Timmons advised Lodermeier by letter Timmons had

failed to file the lawsuit within the two-year statute of limitations. On October 16,

2015, Lodermeier brought suit against Timmons for legal malpractice. 1

Lodermeier made no discovery requests from Timmons.

A jury trial was held December 5, 2017. Lodermeier presented testimony

from Lodermeier’s widow, who had been engaged to him at the time of the

accident, the October 2012 letter from Timmons, tax returns, and medical

evaluations. At the close of Lodermeier’s case, Timmons moved for a directed

verdict claiming negligence, causation, and damages had not been proven and

there was no evidence of collectability. The court dismissed the case finding “no

1 On July 11, 2016, Lodermeier died from causes unrelated to the 2010 accident. Lodermeier died before his deposition testimony could be taken. His estate was substituted as plaintiff. 3

evidence of collectability of this claim against the initial defendant.” Lodermeier

appeals.

II. Standard of Review

“We review a ruling on a motion for a directed verdict for correction of errors

at law.” Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa 2017). “In reviewing the

grant of a motion for a directed verdict, the court must determine whether

reasonable minds could differ on the issue presented; if so, the grant was

inappropriate.” Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 849

(Iowa 2010). “We ‘view the evidence in the light most favorable to the nonmoving

party and take into consideration all reasonable inferences that could be fairly

made by the jury.’” Ludman v. Davenport Assumption High Sch., 895 N.W.2d 902,

909 (Iowa 2017) (quoting Pavone v. Kirke, 801 N.W.2d 477, 487 (Iowa 2011)).

III. Analysis

“A party seeking to establish a prima facie claim of legal malpractice must

show the following: (1) a duty arising from the established existence of an attorney-

client relationship; (2) the attorney breached that duty; (3) the attorney’s breach

was the proximate cause of injury to the client; and (4) the client suffered actual

damage, injury, or loss.” Barker v. Capotosto, 875 N.W.2d 157, 161 (Iowa 2016).

A plaintiff alleging the attorney’s negligence prevented recovery must make a

showing of collectability in the initial action. Vossoughi v. Polaschek, 859 N.W.2d

643, 656 (Iowa 2015).

“[C]ollectability is a critical element of any legal malpractice claim alleging

legal malpractice prevented the plaintiff’s recovery.” Id. (emphasis removed).

“[W]hen the loss arises from negligently prosecuting a prior case the client has the 4

burden of proving not only the amount of the judgment he would have obtained but

for the negligence, but also what he would have collected.” Id. (quoting Pickens,

Barnes & Abernathy v. Heasley, 328 N.W.2d 524, 526 (Iowa 1983)) (emphasis

removed). “[T]he client must introduce substantial evidence from which a jury

could reasonably find that a prior judgment would have been collectible.” Id. A

speculative or potential injury does not give rise to a legal malpractice claim; a

legal malpractice claim is only actionable where an actual injury has been

sustained. Id. at 650–51. “A jury must be provided with facts affording a

reasonable basis for ascertaining the loss.” Quad City Bank & Trust v. Elderkin &

Pirnie, PLC, 870 N.W.2d 249, 253–54 (Iowa Ct. App. 2015).

Lodermeier did not present any evidence proving the amount of insurance

coverage for the driver causing the accident or whether the driver had other assets

available for a judgment. See Koeller v. Reynolds, 344 N.W.2d 556, 562 (Iowa Ct.

App. 1983) (“Because a judgment is limited to the amount which could have been

collectible, it would have been necessary for [the plaintiff] to provide evidence of

the exact limits of any insurance policy or that a judgment was collectible from the

negligent driver defendant.”). The only evidence presented concerning the other

driver’s insurance was testimony by his widow of Lodermeier’s attempt to negotiate

with the insurance company leading to the hiring of Timmons. No letter from

Timmons or the insurance company, check stub, other documentation, or

admission proves any level of coverage or collectability. Cf. Quad City Bank &

Trust, 870 N.W.2d at 253–54) (evaluating a spreadsheet of potential recovery

actions created by the law firm, testimony of an attorney from the firm, and letters

sent by the law firm to the bank as evidence of collectability). 5

We find no evidence in the record from which a jury could have determined

the amount collectable in the initial claim. We affirm.

AFFIRMED.