### The HONORABLE ANDREW W. BOGUE, United States District Judge 1 

### for the District of South Dakota, sitting by designation. The Honorable Joseph E. Stevens, Jr., United States 2 

### District Judge for the Western District of Missouri.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-2311

___________ Jania R. Faulkner, * * Appellant, * Appeal from the United States * District Court for the v. * Western District of Missouri. * James H. Ensz, * * Appellee. *

___________ Submitted: February 10, 1997 Filed: March 25, 1997

___________ Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, District 1 Judge.

___________ WOLLMAN, Circuit Judge.

Jania Faulkner appeals from the district court’s grant of judgment 2 as a matter of law at the close of Faulkner’s evidence in Faulkner’s suit against James Ensz for legal malpractice. We affirm.

Faulkner alleged that Ensz was negligent for failing to file a n administrative charge regarding a possible Title VII sex

### We disagree with Faulkner’s argument that Ensz’s possible 3 

### negligence regarding the 180-day statute of limitations for filing a Missouri Human Rights Act charge is also at issue. A claim against Ensz regarding the Missouri Human Rights Act was not clearly pleaded in her complaint, and the evidence showed that Faulkner did not tell Ensz that she was interested in pursuing a sex discrimination claim until after the 180-day statute of limitations for filing a state charge had already run. Furthermore, the parties stipulated that the Title VII 300-day statute of limitations was at issue.
-2- discrimina tion claim before the 300-day statute of limitations ran. The 3 evide nce at trial showed the following. Faulkner was terminated as a n apprentice ironworker by the Joint Apprenticesh ip Council (JAC) on August 15, 199 0. She hired Ensz to assist her in seeking reinstatement to th e apprenticeship program. Ensz pursued an appeals process within the JAC, which resulted in a hearing in March of 1991. At the conclusion of that hearing, Ensz told Faulkner that he did not have a “good feeling” about th e outcome of the hearing. Ensz then became aware that Faulkner wa s interested in pursuin g a sex discrimination claim if there was an adverse hearing r esult. He told Faulkner that he would look for a lawyer wh o specialized in discrimination suits. Faulkner’s administrative appeal was denied on April 12, 1991. Ensz contacted Dianne Moritz, an experienced discrimination-sui t attorney, regarding Faulkner’s case. Ensz, Faulkner, and Moritz met on Ma y 10, 1991. Prior to this meeting, Ensz had not calculated the statute of li mitations for filing an administrative charge regarding Faulkner’ s dis crimination claim because he did not believe she had been terminate d from the apprenticesh ip program based on her gender. At the meeting, and with F aulkner’s knowledge, Ensz turned his complete original file o n Faulkner’s case (the only copy) over to Moritz. Ensz’s position is that he referred the case to Moritz at this meeting. Faulkner testified that she was aware that Moritz left the meeting with the original file and that it was he r understanding that Moritz had taken over the handling of he r
case. Mor itz testified that she took the file only to review it an d determine if she was interested in getting involved in the case, possibly as co-counsel with Ensz.

Moritz reviewed the file and had one meeting at her office wit h Faulkner to discuss the case, a meeting at which Ensz was not present. Th e

### Faulkner has also sued Moritz for malpractice in state 4 

### court. -3- deadline for filing an administrative charge ran on June 12, 1991. Moritz subsequently called Faulkner and told her that she was not interested in taking the case, in part because of the statute of limitations problem

. She returned the file to Faulkner. Moritz also called Ensz to tell hi m 4 that she was not interested in becoming involved in the case. This was th e only time Moritz spoke with Ensz after the May 10 meeting.

Faulkner testified that after she learned of the statute o f limitations problem from Moritz, she called Ensz, with whom she had no t spoken since the May 10 meeting. Ensz said that he could not do anything for her. Faulkner testified that at Moritz’s di rection she went ahead and filed an administrative charge, which Moritz had agreed to monitor

. Faulkner’s charges with both the Equal Employment Opportunity Commission and the Missouri Human Rights Commission were denied as untimely. Faulkne r subsequently filed a suit against the JAC, which was dismissed because of her untimely administrative filing.

The district court found that Ensz’s involvement ended at the May 10 meeting when Moritz became involved and that Faulkner had never acted to involve Ensz again. The court concluded that Moritz’s intervention into the case ended Ensz’s liability.

### -4- Under Missouri law, a successful att orney malpractice claim requires a causal connection b etween the attorney’s negligence and the plaintiff’s dam ages. “To prove damages and causation, the plaintiff must establis h that `b ut for’ the attorney’s negligence the result of the underlyin g proceeding would have been different.” London v. Weitzman , 884 S.W.2d 674 , 677 (Mo. Ct. App. 199 4). “`But for’ is an absolute minimum for causation because it is merely causation in fact. . . . [T]here [must] be some causa l relationship between the defendant’s conduct and the injury or event for which damages are sought.” Callahan v. Cardinal Glennon Hosp. , 863 S.W.2d 852, 862 (Mo. 1993) (en banc). Furthermore, the doctrine of intervening
cause applies in attorney malpractice cases. See Rodgers v. Czamanske , 86 2 S.W.2d 453, 458 (Mo. Ct. App. 1993). “An intervening cause is a new and ind ependent force which interrupts the chain of events initiated by th e defendant’s negligence in such a significant manner as to become the direc t and proximate cause of the plaintiff’s damages.” See id.

We agre e with the district court that Faulkner’s case fails on th e causation element. The evidence does not show that the scope of Ensz’ s representation extended beyond representing Faulkner in the JAC hearin g seeking her reinstatement into the apprenticeship program. Assuming , however, that Ensz ha d responsibility for Faulkner’s discrimination case, the only reasonable i nference that can be drawn from the evidence is that Ensz’s involvement ended on May 10. Ensz gave h is original file to Moritz and had no further contact with Moritz or Faulkner; Faulkner’s ow n testimony showed that she believed Ensz was no longer involved after Morit z took th e file; and Moritz returned the file to Faulkner, not Ensz. Th e termination of Ensz’s involvement, coupled with Moritz’s assumption of the case, ended the causa l relationship between Ensz’s actions and Faulkner’s injury.

### -5- We find Faulkner’s argument that Ensz can be held liable for Mo ritz’s conduct to be unpersuasive and the authorities Faulkner cites to b e inapposite. In light of our affirmance of the j udgment, we need not reach Faulkn er’s argument that the district court abused its discretion i n striking her designated experts.
The judgment is affirmed.

A true copy.

Attest:

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