                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         JUN 18 1997
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT                        PATRICK FISHER
                                                                             Clerk



RICHARD DON KURTZEBORN,
Personal Representative of the Estate
of Ruth K. Gilmore,

             Plaintiff-Appellant,

v.
                                                   No. 96-3212, 96-3222
CITIZENS NATIONAL BANK,                             (District of Kansas)
RAWLEY J. DENT, individually;                     (D.C. No. 94-CV-1030)
JUDD DENT CHARTERED, a
professional association; WILLIAM J.
KELLY, JON R. VIETS, individually
and VIETS & GORMAN, a
partnership,

             Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before LUCERO, McWILLIAMS, and MURPHY, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This is a diversity case. This court exercises jurisdiction pursuant to 28

U.S.C. § 1291 and affirms. Richard Kurtzeborn, personal representative of Ruth

Gilmore’s estate, brought an action for breach of fiduciary duty and legal

malpractice arising from probate proceedings relating to Ruth and her husband

James’ estates. Specifically, he claimed the defendants, three lawyers and the

conservator bank, caused Ruth, who was incapacitated at the time of James’

death, to lose her right to elect against James’ will by failing to timely petition the

probate court to appoint a commissioner; this commissioner’s role would have

been to pursue the election issue on Ruth’s behalf, pursuant to Kan. Stat. Ann. §

59-2234.

      Kurtzeborn, whose personal share of Ruth’s estate would have increased if

Ruth had elected against James’ will, 1 eventually settled the case with the

Gilmore family. Later, however, he claimed that the defendants’ negligence

compelled him to accept this settlement. He argued that there was ambiguity in

Kansas law governing the appointment of a commissioner, and that the

defendants’ negligence, given this ambiguity, foreclosed the opportunity for

appointment of a commissioner for Ruth or her estate to elect against James’ will,

forcing Kurtzeborn, as personal representative, to accept the settlement.




      1
          Kurtzeborn was Ruth’s nephew and a beneficiary under her will.

                                          -2-
      The United States District Court for the District of Kansas granted the

defendants’ motions for summary judgment, holding that the defendants did not

cause any damage to Ruth’s estate. Specifically, the court held under the unique

facts of the case that Kan. Stat. Ann. §§ 59-2233 and 59-2234, as construed by

Kansas courts, authorized the probate court to appoint a commissioner up until the

time the parties terminated all litigation by execution of the family settlement.

The district court concluded that any negligence or breach of fiduciary duty did

not cause the failure to appoint a commissioner. The court stated,

      Any damage plaintiff has suffered was self-inflicted by entering into
      the family settlement agreement when the court had an obligation to
      appoint a commissioner. Kurtzeborn would have prevailed on the
      appointment of a commissioner regardless of any defendant’s
      negligence. By settling the case, he deprived the [probate court] of
      the opportunity to correct the failure to appoint a commissioner.
      Seizing upon the claimed negligence of the defendants from whom he
      now seeks full recovery, Kurtzeborn sought to avoid the possibility
      that a commissioner would have been appointed, and found [it would
      not have been advantageous for Ruth’s estate to have elected against
      James’ will.] In other words, Kurtzeborn wants to have his cake and
      eat it too.

Mem. and Order at 11-12.

      We review the summary judgment de novo and apply the same legal

standard used by the district court under Fed. R. Civ. P. 56(c). Applied Genetics

Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

“Summary judgment is appropriate when there is no genuine dispute over a

material fact and the moving party is entitled to judgment as a matter of law.”

                                          -3-
Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). Accordingly, this

court has reviewed the parties’ briefs and contentions, has conducted a de novo

review of the district court’s opinion and the record on appeal, and finds no

reversible error.

      The appellant claims that the defendants’ petition for appointment of a

commissioner, filed three years after James’ death and shortly before Ruth’s

death, was defective for two reasons: (1) it was not filed within six months after

admission of James’ will to probate; and (2) the proceedings pursuant to the

petition were not completed during Ruth’s lifetime. Each of these contentions is

considered below.

      First, with regard to the six-month issue, appellant is correct in pointing out

that Kan. Stat. Ann. § 59-2233 establishes a six-month deadline for a person to

elect against his or her deceased spouse’s will, after which the person is deemed

to have elected to take under the will. Kan. Stat. Ann. § 59-2234, however, sets

out the procedures governing election against a spouse’s will in cases involving

incompetent persons. That statute contains no six-month deadline. Kan. Stat.

Ann. § 59-2234. Furthermore, it does not set out a default mechanism as does

section 59-2233. Instead, it states: “[I]t shall be the duty of the court” to appoint

a commissioner on behalf of the incompetent person, and “the court shall make

[an] election for [the incompetent] spouse . . . as is more valuable or


                                          -4-
advantageous to the spouse.” Id. Thus, under the plain language of the statutes,

it is clear that the six-month, default system established for competent persons

does not apply to incompetent persons, for whom a different system has been

specifically established under Kansas law.

      Second, with regard to the effect of Ruth’s death prior to the completion of

the election-related proceedings, the appellant contends for the general rule that a

person’s right to elect against a spouse’s will terminates upon the former’s death.

See Goehner v. Bond (In re Henderson Estate), 268 P.2d 941, 944-45 (Kan.

1954). Despite this general rule, the Kansas Supreme Court held in Goehner that

the court properly exercised its equitable powers to complete the election-related

proceedings on behalf of an incompetent person after death. Goehner, however,

is distinguishable from the case at bar in that, as the court noted, the facts

revealed “no hint or suggestion of undue delay on the part of anyone.” Id. at 945.

The election process in Goehner was not completed prior to the incompetent

spouse’s death because the “[p]arties to [the] litigation, and . . . the probate court,

simply could not keep up with events as they transpired.” Id. There is,

consequently, some ambiguity whether the probate court in the instant case would

have used its equitable powers to complete the election process after Ruth

Gilmore’s death, since considerable delay occurred. This court therefore does not

concur with the district court’s unqualified conclusion that “the request for


                                           -5-
appointment of a commissioner would have been granted as a matter of law . . .

but for the family settlement agreement.” Mem. and Order at 8. That may well

have been the result, but it is not free from doubt.

      The fatal flaw in Kurtzeborn’s lawsuit, however, is that his voluntary

participation in the settlement precluded the state court from ever considering

whether to exercise its equitable powers in completing the election process on

Ruth’s behalf. As Kurtzeborn himself argued in his brief,

      In many, if not most instances involving an alleged malpractice . . . ,
      the underlying litigation has been terminated . . . . Where the
      termination is by settlement rather than by a dismissal or adverse
      judgment, malpractice by the attorney is more difficult to establish,
      but a cause of action can be made out if it is shown that assent by the
      client to the settlement was compelled because prior misfeasance or
      nonfeasance . . . left no other recourse.

Appellant’s Br. at 27 (quoting Becker v. Julien, Blitz & Schlesinger, 406 N.Y.S.2d

412, 413-14 (Sup. Ct. 1977) (emphasis added), modified on other grounds, 411

N.Y.S.2d 17 (N.Y.App.Div. 1978)). In this case, Kurtzeborn’s recourse, as

personal representative of Ruth Gilmore’s estate, was to allow the proceedings to

continue in the probate court. If the probate court granted the request for the

appointment of a commissioner, then the claimed damage would vanish. If the

probate court denied the request for the appointment of a commissioner, then

there would be no ambiguity as to the effect of defendants’ alleged negligence,

and this suit could proceed.


                                          -6-
       The appellant fails to articulate to this court how Ruth Gilmore’s estate was

compelled to settle and thereby cut short the proceedings in the probate court. He

merely identifies an ambiguity in Kansas law; he does not show how that

ambiguity, and the attendant risk of failure in the probate court proceedings which

could have addressed the ambiguity, forced the Ruth Gilmore estate into

settlement. In other words, Kurtzeborn fails to demonstrate how the estate gained

something by the settlement which it would have lost if he had waited for the

probate court to decide the election issue.

       Kurtzeborn points out that under the settlement, Ruth’s adopted children,

who were not beneficiaries under Ruth’s will, agreed to cease pursuing their

statutory claims to Ruth’s estate. This agreement, however, did not increase

Ruth’s estate but merely resolved who would receive it. 2 It cannot, therefore,

provide a reason why Ruth’s estate was compelled to accept the settlement. The

settlement thus represents the voluntary, rather than the compelled, resolution of

the estate. Since this voluntary settlement ended the proceedings in which the

probate court was considering the petition to appoint a commissioner without a

benefit to Ruth’s estate, the defendants’ alleged negligence did not cause the

petition to fail.




       2
           Namely, the beneficiaries under Ruth’s will, which included Kurtzeborn.

                                           -7-
This court therefore AFFIRMS the district court.

                              ENTERED FOR THE COURT,



                              Michael R. Murphy
                              Circuit Judge




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