GOODMAN (PHILIP J.) VS. GOLDBERG & SIMPSON, P.S.C. , ET AL.
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RENDERED: OCTOBER 16, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000921-MR
PHILIP J. GOODMAN
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 05-CI-01229
GOLDBERG & SIMPSON, P.S.C.;
STEVEN A. GOODMAN; AND
WAYNE F. WILSON
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Philip Goodman appeals from a summary judgment
granted in favor of Goldberg & Simpson, P.S.C., Steven A. Goodman, and Wayne
F. Wilson dismissing his tort claims relating to the distribution of assets from the
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Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
estates of Leah and Lawrence Goodman. After a careful review of the record,
briefs, and oral arguments, we are persuaded that there are no genuine issues of
material fact. Accordingly, we affirm.
Leah and Lawrence Goodman were the parents of appellant, Philip
Goodman, and appellee, Steven Goodman. Leah Goodman died testate in 1977.
Lawrence Goodman died testate in 2004. During their lifetimes, the Goodmans
operated a jewelry store known as the Jewel Box. When Leah died, Lawrence was
appointed executor of her estate. At this time, Steven was a third-year law student
and assisted with the administration of Leah’s estate. According to the terms of
Leah’s will, she made a specific bequest of her undivided one-half (1/2) interest in
a coin collection to Philip and Steven. The remainder of the estate was divided
into two equal parts. Leah devised the assets allocated in part I to Lawrence. The
other assets in part II were distributed in trust for Lawrence with income to him for
life. When Lawrence died, the remaining balance in part II was to be distributed in
equal shares to Philip and Steven.
On August 12, 1983, Philip signed: (1) a first and final Settlement
regarding Leah’s will that was filed with the probate court; (2) an agreement to
terminate the trust established under Leah’s will; and (3) a release of any and all
claims concerning Leah’s trust. It is undisputed that these documents were signed
under oath and that Philip understood each document. However, Philip now
alleges that he made a side agreement with Lawrence at that time, which consisted
of Lawrence agreeing to leave half of his estate to Philip and half to Steven. Philip
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continued to believe that he and Lawrence had verbally agreed to such a
distribution. Philip also alleged that Steven was aware of the oral agreement and
that both Lawrence and Steven continued making representations regarding such a
distribution until the time of Lawrence’s death in 2004.
The equal distribution of Lawrence’s estate among Philip and Steven
was impossible because Lawrence married Evelyn Goodman in 1981. Lawrence
and Evelyn executed a prenuptial agreement immediately before the wedding.
According to Steven, it was on display for everyone in attendance to see. The
prenuptial agreement expressly provided that Evelyn would receive the home, life
insurance proceeds, and at least one-third of Lawrence’s estate. Between 1985 and
2002, Lawrence executed six wills, all of which left Lawrence’s entire estate to
Evelyn with the exception of specific items that were left to Philip and Steven. In
late 2001, appellee, Wayne Wilson, prepared separate wills for Lawrence and
Evelyn and a revocable trust agreement for Lawrence. These documents were
executed on January 2, 2002. After Lawrence died in 2004, Philip alleged that he
was informed for the first time that a revised will had been prepared by Goldberg
& Simpson, the firm where both Steven and Wilson worked as attorneys. Philip
contends that until Lawrence died, Steven and Lawrence continued to make the
same representations they had made for over twenty years, viz., that the will had
not been changed and that Philip and Steven would each receive one-half of the
estate.
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On March 16, 2005, Philip filed suit against Steven, Wilson, and
Goldberg & Simpson alleging: (1) fraud and intentional misrepresentation; (2)
intentional interference with contract; (3) professional negligence and legal
malpractice; (4) breach of fiduciary duty; (5) intentional infliction of emotional
distress; and (5) violations of the rules of professional conduct. The trial court
entered summary judgment dismissing all of Philip’s claims on December 3, 2007.
Philip filed a motion to vacate the judgment, which the trial court denied on April
22, 2008. This appeal from the summary judgment and the order denying the
motion to vacate the judgment followed.2 Additional facts will be developed as
necessary.
Philip first argues that summary judgment was inappropriate because
the intentional tort claims of fraud and interference with contract against Steven
are supported by evidence in the record, which demonstrates the existence of
genuine issues of material fact.
The standard of review for summary judgments is well-established.
Summary judgment is appropriate when “‘as a matter of
law, it appears that it would be impossible for the
respondent to produce evidence at the trial warranting a
judgment in his favor and against the movant.’”
Steelvest, Inc. v. Scansteel Service Center, Inc., 807
S.W.2d 476, 483 (Ky. 1991) (quoting Paintsville
Hospital Co. v. Rose, 683 S.W.2d 255, 256 (Ky.1985)).
In using the word “impossible” in Steelvest, we have
acknowledged that it “is used in a practical sense, not in
an absolute sense.” Perkins v. Hausladen, 828 S.W.2d
652, 654 (Ky. 1992). Furthermore, the party opposing
2
We also note that in his brief in this Court, Philip has waived his claims against Wilson and
Goldberg & Simpson except for professional negligence.
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summary judgment “cannot rely on the hope that the trier
of fact will disbelieve the movant's denial of a disputed
fact, but must present affirmative evidence in order to
defeat a properly supported motion for summary
judgment.” Steelvest, 807 S.W.2d at 481 (internal
quotations omitted) (citation omitted).
. . . . This Court has often stated that “speculation
and supposition are insufficient to justify a submission of
a case to the jury, and that the question should be taken
from the jury when the evidence is so unsatisfactory as to
require a resort to surmise and speculation.” Chesapeake
& Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky.
1951).
O’Bryan v. Cave, 202 S.W.3d 585, 587-88 (Ky. 2006). “Because summary
judgments involve no fact finding, this Court reviews them de novo, in the sense
that we owe no deference to the conclusions of the trial court.” Blevins v. Moran,
12 S.W.3d 698, 700 (Ky. App. 2000).
Philip contends that Steven made fraudulent representations about
Lawrence’s estate plans and that his allegation creates a genuine issue of fact.
In an action for fraud in Kentucky,
the party claiming harm must establish six elements of
fraud by clear and convincing evidence as follows: a)
material representation b) which is false c) known to be
false or made recklessly d) made with inducement to be
acted upon e) acted in reliance thereon and f) causing
injury.
United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999). It is also a
well-settled rule that “a misrepresentation to support an allegation of fraud must be
made concerning a present or-pre-existing fact, and not in respect to a promise to
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perform in the future.” Filbeck v. Coomer, 298 Ky. 167, 182 S.W.2d 641, 643
(1944).
The representations regarding Lawrence’s estate that Philip alleges
Steven made began in the mid-1980s and continued after Lawrence’s death in
2004. The alleged representations all refer to the future act of Philip and Steven
each receiving one-half of Lawrence’s estate. Additionally, there is no evidence
whatsoever that the alleged representations were made with inducement to be acted
upon. Even if Steven did make the alleged representation that he and Philip would
each receive one-half of Lawrence’s estate, Philip has provided no evidence that he
relied upon these representations to his detriment other than he would have
initiated criminal proceedings against Lawrence.
Next, Philip argues that summary judgment was inappropriate on his
claim of intentional interference with contract. We disagree because there was no
evidence of the existence of a contract between Philip and Lawrence.
KRS 394.540(1) states:
A contract to make a will or devise, or not to revoke a
will or devise or to die intestate, if executed after June
16, 1972, can be established only by:
(a) Provisions of a will stating material provisions
of the contract;
(b) An express reference in a will to a contract and
extrinsic evidence proving the terms of the
contract; or
(c) A writing signed by the decedent evidencing
the contract.
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(Emphasis added).
Philip maintains that he and Lawrence Goodman entered into an oral
contract whereby Lawrence agreed to devise one-half of his estate to Philip in
consideration of Philip’s forbearance to pursue criminal and civil charges against
Lawrence related to the administration of Leah Goodman’s estate. KRS
394.540(1) clearly states that a contract to make a will cannot be created orally.
We further note that even if the purported agreement had conformed to the
requirements of KRS 394.540(1), it would nevertheless be void as against public
policy.
“Agreements calculated to impede the regular
administration of justice are void, as against public
policy, without reference to the question whether
improper means are contemplated or employed in their
execution. The law looks to the general tendency of such
agreements, and it closes the door to temptation by
refusing them recognition in any of the courts of the
country. Within the condemned category are agreements
to compound a crime or a penal action; . . . agreements to
stifle or prevent a criminal prosecution, or to unduly
influence its termination; . . . agreements to conceal the
fact that a party is breaking the law; or agreements
interfering with the proper discharge of the duties of a
judicial officer or person charged with the enforcement
of the law. * * * All agreements, it is said in a recent
case, relating to proceedings in court, civil or criminal,
which may involve anything inconsistent with the
impartial course of justice, are void, although not open to
the charge of actual corruptness, and regardless of the
good faith of the parties or of the fact that no evil resulted
therefrom.” Kimbrough v. Lane, 11 Bush. 556; Barclay
v. Breckinridge, 4 Metc. 374; Gardner v. Maxey, 9 B.
Mon. 90; Swan v. Chandler, 8 B. Mon. 97; Miller v.
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Payne, 7 Ky. Law Rep. 288; Wheeler, etc., Mfg. Co. v.
Hord, 4 Ky. Law Rep. 240.
Jones v. Henderson, 189 Ky. 412, 225 S.W. 34, 36 (1920) (emphasis added).
Therefore, the claim for intentional interference with the performance of a contract
must fail as a matter of law because there was no contract.
Philip cites Lonnie Hayes & Sons Staves, Inc. v. Bourbon Cooperage
Co., 777 S.W.2d 940, 942 (Ky. App. 1989), in support of the proposition that the
enforceability of a contract is not a precondition to a tort action regarding the
performance of a contract. This argument is misplaced because Lonnie Hayes
dealt with the Statute of Frauds, KRS 355.2-201(1). The Statute of Frauds
concerns the enforceability of certain types of contracts whereas KRS 394.540(1)
specifically concerns the formation of contracts to execute a will. The supposed
contract in this case did not conform to the requirements of KRS 394.540(1).
According to the clear language of that statute, no contract was formed. By way of
comparison, the Statute of Frauds simply prohibits the enforceability of certain
otherwise properly formed contracts that are not in writing. In the Lonnie Hayes
case, the contract at issue was valid, but unenforceable by virtue of the Statute of
Frauds. In the present case, there was no valid contract as a matter of law.
Next, Philip argues that there was sufficient evidence to preclude
summary judgment on his claim that Steven aided and abetted Lawrence’s breach
of fiduciary duty to Philip. Philip argues that Lawrence owed a fiduciary duty to
him as a beneficiary of Leah Goodman’s estate. Philip argues that this fiduciary
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duty continued after he had released his claims against the estate because of the
oral agreement.
Philip signed a release of all claims involving the trust of Leah
Goodman. He received the $20,000.00 to which he was entitled. Philip admitted
that he did, in fact, sign the document. As stated above, there was no contract for
Lawrence Goodman to devise one-half of his estate to Philip. Lawrence did not
owe Philip a fiduciary duty as an intended beneficiary or otherwise. Therefore, the
claim for aiding and abetting breach of fiduciary duty must fail as a matter of law
because there was no duty.
Next, Philip argues that the evidence precluded summary judgment on
his claim for the tort of outrage. The elements for the tort of outrage are as
follows:
1. The wrongdoer’s conduct must be intentional or
reckless;
2. The conduct must be outrageous and intolerable in that
it offends against the generally accepted standards of
decency and morality;
3. There must be a causal connection between the
wrongdoer’s conduct and the emotional distress; and
4. The emotional distress must be severe.
Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996). The issue of whether
conduct is so outrageous as to permit recovery is a question of law for the court to
decide. Goebel v. Arnett, 259 S.W.3d 489, 493 (Ky. App. 2007).
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[T]he tort is not available for “petty insults, unkind words
and minor indignities.” Nor is it to compensate for
behavior that is “cold, callous and lacking sensitivity.”
Rather, it is intended to redress behavior that is truly
outrageous, intolerable and which results in bringing one
to his knees.
Id. (internal citations omitted).
We have reviewed the voluminous record in this case.3 The only
support for Philip’s claim is his own allegation. There was no contract, much less
any concrete evidence to establish that Steven committed any wrongdoing against
Philip, intentionally or otherwise. There is no evidence that Steven attempted to
cheat Philip out of his inheritance or that Steven unduly influenced Lawrence’s
will. In fact, the two brothers received substantially the same amount under
Lawrence’s will. Philip never challenged Lawrence’s will directly. Moreover, it
was Lawrence’s prerogative to dispose of his estate as he saw fit. This is a case
involving an unfortunate estrangement among family members. Given the
circumstances of the entire case, as a matter of law the conduct alleged does not
sink to the depths required to constitute outrageous conduct.
Next, Philip argues that Steven breached his fiduciary duty as Philip’s
attorney and also committed malpractice.
In Daughtery v. Runner, 581 S.W.2d 12, 16 (Ky. App. 1978), this
Court stated:
The relationship of attorney-client is a contractual one,
either expressed or implied by the conduct of the parties.
3
Including 2,380 pages of trial record, 10 volumes of depositions, 2 videotapes, 1 volume of
sealed pleadings, 1 volume of exhibits; the parties’ briefs contain 88 appendices.
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The relationship is generally that of principal and agent;
however, the attorney is vested with powers superior to
those of any ordinary agent because of the attorney’s
quasi-judicial status as an officer of the court; thus the
attorney is responsible for the administration of justice in
the public interest, a higher duty than any ordinary agent
owes his principal. Since the relationship of attorneyclient is one fiduciary in nature, the attorney has the duty
to exercise in all his relationships with this clientprincipal the most scrupulous honor, good faith and
fidelity to his client's interest.
Beyond Philip’s bare supposition, there is no evidence that Steven acted as his
attorney. There was no written contract to perform legal services. The conduct of
Philip and Steven does not support the implication of an attorney-client
relationship. The legal service which Philip alleged that Steven provided consisted
of occasional assurances that they would each receive one-half of Lawrence’s
estate. There is no evidence that Steven “brokered” the alleged oral agreement.
There is evidence that Philip harbored a deep mistrust of Steven. They only spoke
or met on rare occasions. There is no evidence that any discussion regarding his
father’s estate was anything more than a conversation among family members.
Therefore, because there was no attorney-client relationship, the claim of legal
malpractice against Steven must fail.
Philip next argues that attorney Wilson and Goldberg & Simpson also
breached fiduciary duties to him and committed malpractice. Philip argues that the
alleged misdeeds of Steven should be imputed to Goldberg & Simpson under the
theory of respondeat superior. We disagree because there is no record evidence to
support these claims.
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As stated above, Philip did not have an attorney-client relationship
with Steven. Therefore, Philip did not have any legal relationship with Goldberg
& Simpson. Further, there is no indication whatsoever that any of the alleged
wrongdoing committed by Steven was within the scope of his employment with
Goldberg & Simpson. It is undisputed that Wilson had no knowledge of the
purported agreement between Philip and Lawrence Goodman. None of
Lawrence’s prior wills reference any agreement. Wilson and Evelyn Goodman
both testified that the will reflected Lawrence’s intent. Lawrence signed the will.
The probate court accepted Lawrence’s will and Philip never challenged the will
directly. There was no evidence that any person other than Wilson drafted
Lawrence’s will. There is no evidence that Wilson or Goldberg & Simpson had
any knowledge of the purported agreement. Moreover, Wilson and Goldberg &
Simpson owed a fiduciary duty to Lawrence, not to Philip.
Next, Philip argues that Goldberg & Simpson owed a duty to him as
an intended third-party beneficiary of Lawrence’s will. We disagree.
Attorneys may be held liable for professional negligence where third
parties were the intended beneficiaries of their legal representation. Hill v.
Willmott, 561 S.W.2d 331, 334 (Ky. App. 1978). However, in such cases, the
attorney’s services must have been “primarily and directly intended to benefit” the
third party. American Continental Ins. Co. v. Weber & Rose, P.S.C., 997 S.W.2d
12, 14 (Ky. App. 1998).
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We cannot conclude that Goldberg & Simpson’s services to Lawrence
were primarily and directly intended to benefit Philip. Goldberg & Simpson’s
service to Lawrence consisted of drafting a will that would give effect to his
wishes regarding the disposal of his estate. The evidence in this case
overwhelmingly demonstrates that this occurred. Philip simply did not receive
what he had hoped for from his father’s estate. Lawrence’s will was never
challenged. There is no evidence of any undue influence. The only evidence
indicating that Goldberg & Simpson had any knowledge of Philip and Lawrence’s
purported agreement was Philip’s assertion that Lawrence should have told them
about it. Summary judgment was appropriate because there is no affirmative
evidence in support of this claim beyond mere supposition.
Finally, Philip argues that summary judgment was premature because
the trial court entered judgment prior to the completion of discovery. The record
reveals otherwise. Philip filed his complaint on March 16, 2005. After two years,
the appellees moved for summary judgment. The trial court allowed another six
months of discovery before ruling on the motion. The record in this case is
copious, containing approximately 4,000 pages of deposition testimony and sixteen
volumes of pleadings.4 Philip had the opportunity to supplement the record and
did, in fact, do so in his motion to vacate the trial court’s judgment. Philip argues
now that there is significant information that he has not yet been able to obtain
through discovery, but does not specify what that information would be. Summary
4
See footnote 3, supra.
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judgment was timely and appropriate because there were no genuine issues of
material fact.
For the reasons noted above, the summary judgment entered in
Fayette Circuit Court on December 3, 2007, and the order denying the motion to
vacate judgment entered on April 22, 2008, are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
Katherine K. Yunker
Lexington, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEES, GOLDBERG &
SIMPSON, P.S.C. AND WAYNE F.
WILSON:
Theodore E. Cowen
Lexington, Kentucky
Raymond G. Smith
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT
FOR APPELLEE, STEVEN A.
GOODMAN:
Katherine K. Yunker
Richard G. Segal
Louisville, Kentucky
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