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

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No. 96-2311

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Jania R. Faulkner, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Western District of Missouri.

*

James H. Ensz, *

*

Appellee. *

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 Submitted: February 10, 1997

 Filed: March 25, 1997

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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 an

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.

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discrimination claim before the 300-day statute of limitations ran. The 3

evidence at trial showed the following. Faulkner was terminated as an

apprentice ironworker by the Joint Apprenticeship Council (JAC) on August

15, 1990. She hired Ensz to assist her in seeking reinstatement to the

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 the

outcome of the hearing. Ensz then became aware that Faulkner was

interested in pursuing a sex discrimination claim if there was an adverse

hearing result. He told Faulkner that he would look for a lawyer who

specialized in discrimination suits. Faulkner’s administrative appeal was

denied on April 12, 1991. 

Ensz contacted Dianne Moritz, an experienced discrimination-suit

attorney, regarding Faulkner’s case. Ensz, Faulkner, and Moritz met on May

10, 1991. Prior to this meeting, Ensz had not calculated the statute of

limitations for filing an administrative charge regarding Faulkner’s

discrimination claim because he did not believe she had been terminated

from the apprenticeship program based on her gender. At the meeting, and

with Faulkner’s knowledge, Ensz turned his complete original file on

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 her understanding that Moritz had taken over the handling of her

case. Moritz testified that she took the file only to review it and

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 with

Faulkner to discuss the case, a meeting at which Ensz was not present. The
Faulkner has also sued Moritz for malpractice in state 4

court.

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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 him

4

that she was not interested in becoming involved in the case. This was the

only time Moritz spoke with Ensz after the May 10 meeting. 

Faulkner testified that after she learned of the statute of

limitations problem from Moritz, she called Ensz, with whom she had not

spoken since the May 10 meeting. Ensz said that he could not do anything

for her. Faulkner testified that at Moritz’s direction 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. Faulkner

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 attorney malpractice claim requires

a causal connection between the attorney’s negligence and the plaintiff’s

damages. “To prove damages and causation, the plaintiff must establish

that `but for’ the attorney’s negligence the result of the underlying

proceeding would have been different.” London v. Weitzman, 884 S.W.2d 674,

677 (Mo. Ct. App. 1994). “`But for’ is an absolute minimum for causation

because it is merely causation in fact. . . . [T]here [must] be some causal

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, 862

S.W.2d 453, 458 (Mo. Ct. App. 1993). “An intervening cause is a new and

independent force which interrupts the chain of events initiated by the

defendant’s negligence in such a significant manner as to become the direct

and proximate cause of the plaintiff’s damages.” See id.

We agree with the district court that Faulkner’s case fails on the

causation element. The evidence does not show that the scope of Ensz’s

representation extended beyond representing Faulkner in the JAC hearing

seeking her reinstatement into the apprenticeship program. Assuming,

however, that Ensz had responsibility for Faulkner’s discrimination case,

the only reasonable inference that can be drawn from the evidence is that

Ensz’s involvement ended on May 10. Ensz gave his original file to Moritz

and had no further contact with Moritz or Faulkner; Faulkner’s own

testimony showed that she believed Ensz was no longer involved after Moritz

took the file; and Moritz returned the file to Faulkner, not Ensz. The

termination of Ensz’s involvement, coupled with Moritz’s assumption of the

case, ended the causal relationship between Ensz’s actions and Faulkner’s

injury.
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We find Faulkner’s argument that Ensz can be held liable for Moritz’s

conduct to be unpersuasive and the authorities Faulkner cites to be

inapposite. In light of our affirmance of the judgment, we need not reach

Faulkner’s argument that the district court abused its discretion in

striking her designated experts. 

The judgment is affirmed.

A true copy.

Attest:

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