Sylvia v. Wisler, No. 15-3284 (10th Cir. 2017)Annotate this Case
Kansas distinguishes between legal malpractice claims: some sound in contract, others sound in tort. Plaintiff Cory Sylvia sued his former attorneys, James Wisler and David Trevino, for legal malpractice allegedly sounding in tort and breach of contract arising from their representation of Sylvia in a suit for wrongful termination against Goodyear Tire & Rubber Co. (“Goodyear”), his former employer. Later, Sylvia amended his complaint to add as a defendant Xpressions, L.C. (“Xpressions”), a limited liability company formerly known as the Wisler Law Office, L.C. Sylvia’s initial complaint characterized his claims as sounding both in tort and in contract. Specifically, he faulted: (1) both individual defendants for failing to include in, or to later amend, his complaint to aver a workers’ compensation retaliation claim; and (2) solely Wisler for voluntarily dismissing Sylvia’s case on the erroneous belief that all claims could be refiled, causing one of his claims to become barred by the statute of limitations. For each of these claims, Sylvia advanced both tort and contract theories of liability. This case presented a difficult question of Kansas law for the Tenth Circuit's review: when do legal malpractice claims involving a failure to act sound in tort rather than contract? After review, the Tenth Circuit reversed in part and vacated in part the district court’s judgment dismissing Sylvia’s tort-based legal malpractice claims. However, regarding the district court’s grant of summary judgment for the defendants on the breach of contract claims, the Court affirmed.