1

The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3759

___________

Helene Eichenwald, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri

Stephen Bradley Small, *

*

Appellee. *

___________

Submitted: September 9, 2002

Filed: March 7, 2003 (Corrected: 05/21/03)

___________

Before McMILLIAN, RICHARD S. ARNOLD and MELLOY, Circuit Judges.

___________

McMILLIAN, Circuit Judge.

Helene Eichenwald brought this legal malpractice action against her former

attorney, Stephen B. Small, based upon his alleged failure to file common law claims

of assault and battery against her former employer, Krigel’s, Inc. (“Krigel’s”).

Eichenwald now appeals from a final order entered in the United States District

Court1

 for the Western District of Missouri (“the district court”) granting summary

judgment in favor of Small on the ground that her legal malpractice claim is time-
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barred under Missouri’s five-year statute of limitations. Eichenwald v. Small,

No. 99-154-CV-W-6 (W.D. Mo. Oct. 15, 2001) (hereinafter “slip op.”). For reversal,

Eichenwald argues that the district court erred in holding: (1) that her legal

malpractice claim accrued upon the expiration of the statutory limitations period for

her assault and battery claims and (2) that a Kansas tolling statute does not apply to

her legal malpractice claim. For the reasons stated below, we affirm. 

Jurisdiction

Jurisdiction was proper in the district court was based upon 28 U.S.C.

§§ 1332, 1631. Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The

notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a). 

Background

The following background summary is based upon the district court’s order.

Slip op. at 2-4. From 1987 or 1988 to early July 1991, Eichenwald, a Kansas

resident, worked for Krigel’s in Kansas. According to Eichenwald, she was subjected

to multiple incidents of sex-based harassment and offensive or harmful conduct in the

workplace. In January 1992, Eichenwald contacted Small regarding possible claims

against Krigel’s. Small lives in Missouri and has his law office in Missouri. On

January 31, 1992, she and Small executed a “contract for employment of attorney”

for purposes of litigation against Krigel’s. The contract was executed in Missouri.

Also in January 1992, Eichenwald filed a discrimination charge against Krigel’s with

the Equal Employment Opportunity Commission (“EEOC”). On April 25, 1994, the

EEOC issued Eichenwald a “right to sue” letter. On April 28, 1994, Eichenwald

retained Katherine Rich of the law firm McAnany, Van Cleave, and Phillips, P.A.

(hereinafter “the McAnany law firm”). It is undisputed that Small’s legal

representation of Eichenwald was terminated on or before April 28, 1994. 
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On July 19, 1994, Eichenwald, along with other former Krigel’s employees,

brought an action against Krigel’s in the United States District Court for the District

of Kansas alleging employment discrimination under Title VII of the Civil Rights Act

of 1964. The plaintiffs were represented by the McAnany law firm. On October 12,

1995, the federal district court in Kansas entered judgment in favor of Eichenwald on

her Title VII claim, finding that she had been subjected to a hostile work environment

as a result of severe and pervasive sexual harassment and that she had been

constructively discharged as a result of intolerable working conditions. See

Eichenwald v. Krigel’s, Inc., 908 F. Supp. 1531, 1554-59 (D. Kan. 1995).

Eichenwald was awarded $22,558.24 in back pay. See id. at 1564.

On October 6, 1995, Eichenwald filed a legal malpractice action against Small

in the United States District Court for the District of Kansas, based upon his alleged

failure to file assault and battery claims against Krigel’s within the statutory one-year

limitations period following the termination of her employment. Before the case

proceeded to the merits, Eichenwald moved for voluntary dismissal. The federal

district court in Kansas granted her motion and dismissed the action without prejudice

on August 6, 1996. 

On December 20, 1996, pursuant to Kan. Stat. Ann. § 60-3502 and Kansas

Supreme Court Rule 142, Eichenwald requested review of her legal malpractice

theory against Small by a professional malpractice screening panel. After reviewing

her case, a screening panel issued a written recommendation on June 29, 1998,

opining that Eichenwald’s right to bring assault and battery claims against Krigel’s

expired while Small was representing her, that Small had departed from the minimum

standard of care by failing to timely file assault and battery claims, and that Small had

caused her injury.

 

On July 9, 1998, Eichenwald filed the present action in the United States

District Court for the District of Kansas, again asserting a legal malpractice claim
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Viewing the evidence in the light most favorable to the non-moving party

(Eichenwald) requires us to assume for purposes of the motion for summary judgment

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against Small. On February 4, 1999, the federal district court in Kansas ruled that it

lacked personal jurisdiction over Small and transferred the case to the Western

District of Missouri pursuant to 28 U.S.C. § 1631. Small moved for summary

judgment, arguing, among other things, that Eichenwald’s legal malpractice claim

was time-barred. 

Based upon the facts stated above, the district court first determined that

Missouri’s five-year statute of limitations, Mo. Rev. Stat. § 516.120, not Kansas’s

two-year statute of limitations, Kan. Stat. Ann. § 60-513, applied to Eichenwald’s

legal malpractice claim against Small. See slip op. at 7. The district court next

determined that, in light of Kansas’s one-year statute of limitations for bringing

assault and battery claims, Eichenwald’s right to bring such claims had expired on

May 27, 1992, one year after her last day of employment with Krigel’s; therefore,

Eichenwald’s legal malpractice claim against Small accrued on May 28, 1992. See

id. at 8. The district court further held that there were no grounds for tolling the fiveyear Missouri statute of limitations and, more specifically, that the Kansas screening

panel tolling statute, Kan. Stat. Ann. § 60-3509, “ha[d] no effect on the running of the

Missouri statute of limitations.” Id. at 10. Finally, because the present action was

filed on July 9, 1998, more than five years after the accrual date of May 28, 1992, the

district court dismissed it as time-barred. See id. at 10-11. This appeal followed.

Discussion

We review a grant of summary judgment de novo. The question before the

district court, and this court on appeal, is whether the record, when viewed in the light

most favorable to the non-moving party, shows that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law.2
that Eichenwald had a valid claim against Small. However, we express no opinion

on that assumption, and nothing in this opinion should imply that this court is making

any determination that Eichenwald would have been able to establish a valid claim

had it been timely filed.

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See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Where the unresolved

issues are primarily legal rather than factual, summary judgment is particularly

appropriate. See Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.

1990).

Eichenwald does not dispute the district court’s holding that her legal

malpractice claim accrued in Missouri and is governed by Missouri law. She agrees

with the district court that Missouri’s five-year statute of limitations, Mo. Rev. Stat.

§ 516.120, governs the question of whether or not her action is time-barred.

However, she disagrees with the district court’s application of the Missouri statute

of limitations to the particular circumstances of her case.

We review the district court’s determinations of Missouri law de novo. See

Salve Regina College v. Russell, 499 U.S. 225, 231 (1991). When deciding matters

of state law, we are bound by the decisions of the state’s highest court, and, to the

extent that a precise issue has not been addressed by that court, we must determine

its probable decision on the issue by reference to its analogous case law, relevant

decisions of the state’s lower courts, and other potentially elucidating state law

materials. See, e.g., Missouri v. City of Glasgow, 152 F.3d 802, 805-06 (8th

Cir.1998).

 

Eichenwald first argues that the district court erred in deciding when, under

Missouri law, her legal malpractice claim against Small accrued. As stated above, the

district court held that her malpractice claim accrued on May 28, 1992, the day after

the one-year statutory limitations period expired for her assault and battery claims
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under Kansas law. By contrast, Eichenwald maintains that her malpractice claim

accrued on October 12, 1995, the day she obtained a favorable judgment on her Title

VII claim against Krigel’s. Eichenwald suggests that it was not until that date that

she could have ascertained the validity of, and damages from, her assault and battery

claims against Krigel’s. For support, she cites Wallace v. Helbig, 963 S.W.2d 360

(Mo. Ct. App. 1998) (Wallace), among other cases. 

In Wallace, 963 S.W.2d at 360, the Missouri Court of Appeals explained that

the cause of action in question (a claim against an insurance agent/broker) “accrued

for purposes of [Mo. Rev. Stat. § 516.120] when damages resulting from the

offending act were sustained and capable of ascertainment.” The Wallace court

further explained that “[d]amages are ‘capable of ascertainment’ under [Mo. Rev.

Stat. § 516.100] when a plaintiff with a recognized legal theory of recovery sustains

compensable damages.” Id. In that case, a declaratory judgment had been entered

determining that the plaintiff was not covered by insurance for a certain claim brought

against him by a third party. That declaratory judgment gave rise to the plaintiff’s

claim against the defendant (his insurance agent/broker) for negligent failure to

provide insurance coverage. The Wallace court reasoned: “In the event the court had

declared there was coverage, [the plaintiff] would not have had a cause of action

against [the defendant] under any recognized legal theory.” Id. at 362. Therefore, the

Wallace court concluded, the statute of limitations began to run on the date of the

declaratory judgment. 

In the present case, by contrast, the decision by the federal district court in

Kansas on Eichenwald’s Title VII claim against Krigel’s did not give rise to

Eichenwald’s legal malpractice claim against Small. It cannot be said that, absent the

Title VII judgment, Eichenwald would not have had a legal malpractice claim against

Small for failing to file her common law claims of assault and battery against

Krigel’s. Eichenwald could have brought a malpractice claim against Small, and her

damages (if any) were capable of ascertainment, as soon as the one-year statute of
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limitations on her assault and battery claims expired under Kansas law on May 27,

1992. We therefore agree with the district court that, under Missouri law,

Eichenwald’s legal malpractice claim against Small accrued on May 28, 1992.

Eichenwald additionally argues that, regardless of whether May 28, 1992, is

the correct accrual date for purposes of her legal malpractice claim against Small, her

malpractice claim was nevertheless timely filed because the five-year limitations

period under Mo. Rev. Stat. § 516.120 was tolled during the pendency of the Kansas

state law screening panel proceedings. She relies on Kan. Stat. Ann. § 60-3509,

which provides: 

In those cases before a screening panel which have not been formalized

by filing a petition in a court of law, the filing of a memorandum

requesting the convening of a screening panel shall toll any applicable

statute of limitations and such statute of limitations shall remain tolled

until 30 days after the screening panel has issued its written

recommendation.

As stated above, on December 20, 1996, Eichenwald formally requested that

a professional malpractice screening panel be convened pursuant to Kansas state law.

Prior to that, she had filed, and had voluntarily dismissed, a legal malpractice action

against Small in the United States District Court for the District of Kansas. The

professional malpractice screening panel issued its recommendation on June 29,

1998. Eichenwald filed the present action in the United States District Court for the

District of Kansas on July 9, 1998, more than five years after the May 28, 1992,

accrual date but within thirty days after the screening panel’s recommendation.

Eichenwald therefore maintains that, by application of Kan. Stat. Ann. § 60-3509, this

action is not time-barred. 

The question now before us is whether – for purposes of determining the

timeliness of Eichenwald’s filing of the present action – Missouri’s five-year statute
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of limitations is subject to the Kansas tolling statute, Kan. Stat. Ann. § 60-3509.

Eichenwald fails to cite any relevant authority in support of this proposition.

 

In Thompson v. Crawford, 833 S.W.2d 868, 872 (Mo. 1992) (en banc)

(Thompson), the Missouri Supreme Court stated: “It is the generally accepted rule

that when borrowing the statute of limitations of a foreign state, the applicable tolling

provision of that state is borrowed as well.” The Court explained:

When [a statute of limitations] is so borrowed, it is not wrenched bodily

out of its own setting, but taken along with it are the correct decisions

of its own state which interpret and apply it, and the companion statutes

which limit and restrict its operation.

 Id. (quoting Devine v. Rook, 314 S.W.2d 932, 935 (Mo. Ct. App. 1958)). The

Missouri Supreme Court thus held in Thompson that, where the applicable statute of

limitations was a Tennessee statute, the trial court had correctly declined to apply a

Missouri tolling statute in determining the timeliness of the plaintiff’s filing. In other

words, the applicable statute of limitations from one jurisdiction was not subject to

a tolling provision from another. We conclude that the Missouri Supreme Court

would likewise hold in the case at bar that the applicable Missouri statute of

limitations, Mo. Rev. Stat. § 516.120, is not subject to the Kansas tolling statute, Kan.

Stat. Ann. § 60-3509. Therefore, Eichenwald had five years to bring her legal

malpractice claim against Small from the accrual date of May 28, 1992. She filed the

present action in the United States District Court for the District of Kansas on July 9,

1998, more than five years later. Her action is time-barred.

Conclusion

The judgment of the district court is affirmed. 
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.