JIMMY PATTERSON v. JOHN K. MILLS, OF MILLS & MILLS, PSI
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RENDERED: July 17, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-2841-MR
JIMMY PATTERSON
v.
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
CIVIL ACTION NO. 96-CI-000002
JOHN K. MILLS, OF
MILLS & MILLS, PSI
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
BUCKINGHAM, EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Jimmy Patterson ("Patterson") has filed this
appeal challenging the Knox Circuit Court's order entered
October 1, 1996, dismissing his complaint against John K. Mills
("Mills") on the basis that the action was time-barred.
We
conclude the applicable statute of limitations does bar this
claim.
Accordingly, the judgment is affirmed.
Patterson filed suit against Mills on January 2, 1996.
Patterson's claims stem from Mills' appointment as guardian ad
litem for Patterson in a dissolution of marriage action.
At the
time of the filing of the dissolution action in January, 1991,
Patterson was serving a twenty-five (25) year sentence in the
penitentiary for murder.
Pursuant to CR 17.04 Mills was
appointed guardian ad litem for Patterson.
Mills and Patterson
corresponded by letter on several occasions concerning the
dissolution petition.
As a consequence of this correspondence,
Mills filed an answer and report of guardian ad litem on
Patterson's behalf in which he requested that the court grant
visitation rights with his minor son to Patterson, grant custody
of the child to Patterson's sister, and for distribution of
marital property after an evidentiary hearing.
However, when the
trial court entered its decree of dissolution of marriage on
December 18, 1991, it declared that "the visitation rights of
Respondent [Patterson] are held open until such time as he is no
longer incarcerated."
The trial court also did not resolve the
issues of child support or property distribution.
No appeal of
this order was filed.
By written correspondence in February, 1992, Mills
notified Patterson that he no longer represented him.
On
February 28, 1992, Mills was appointed district judge, thus
terminating his legal practice at that time.
There was no
additional correspondence between Patterson and Mills after
February, 1992, and in Patterson's deposition he admitted that he
no longer considered Mills his attorney after that date.
On April 12, 1993, Patterson filed a pro se motion to
modify the dissolution decree and grant him visitation rights
with his minor son.
Patterson alleged that the five (5) visits
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he had with his son since December, 1991, were inadequate and he
sought a modification to twenty-four visits per year.
Patterson
relied primarily on KRS 403.320(1) which states in part that a
non-custodial parent is entitled to "reasonable visitation unless
the court finds after a hearing that the visitation would
seriously endanger the child's physical, mental or emotional
health."
(Emphasis added).
When the trial court failed to rule
on his motion, Patterson filed a second motion requesting similar
relief on August 4, 1994.
On August 11, 1994, the trial court
granted Patterson's motion for visitation.
However, the trial
court subsequently rescinded that order, again finding that the
visitation issue would only be addressed once Patterson was no
longer incarcerated.
As a result of the trial court's refusal to address the
merits of his motion, Patterson filed a petition for writ of
mandamus in the Court of Appeals on December 5, 1994.
This
original action sought an order to compel the Knox Circuit Court
to schedule a hearing on the visitation issue and to have his
court appointed guardian ad litem represent him until the issue
of visitation was resolved.
On January 19, 1995, the Court of
Appeals issued an order granting CR 76.36 relief in part.
Pursuant to Smith v. Smith, Ky. App., 869 S.W.2d 5 (1994), the
Court held that Patterson had natural and statutory rights to
visit with his child and that a non-custodial parent may not be
deprived of the right to visit without a hearing.
The Court also
found Patterson to be entitled to representation by a guardian ad
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litem until final disposition in the circuit court.
v. Boggs, Ky. App., 859 S.W.2d 662 (1993).
See Davidson
The ultimate result
of Patterson's motion for visitation was that the trial court
granted him telephone visitation with his son twice a month and
personal visitation every tenth Sunday of every year.
This order
was entered August 1, 1996.
As previously stated, Patterson filed his legal
malpractice action against Mills on January 2, 1996.
The trial
court, by order entered October 1, 1996, granted Mills' motion
for summary judgment finding that "a cause of action for legal
malpractice does not exist due to the expiration of the statute
of limitations."
The trial court denied Patterson's CR 59 motion
and this appeal followed.
On appeal, Patterson admits that a legal malpractice
claim is governed by KRS 413.245 which, in part, states:
...a civil action, whether brought in tort or
contract, arising out of any act or omission
in rendering, or failing to render,
professional services for others shall be
brought within one (1) year from the date of
the occurrence or from the date when the
cause of action was, or reasonably should
have been discovered by the party injured.
Patterson claims that the limitations of action in this case was
"tolled from running because the issue of visitation was reserved
until such time as appellant [Patterson] is no longer
incarcerated.
Thus, that litigation was not concluded on
December 18, 1991, as posited by Mills."
(Emphasis in original).
Patterson cites the cases of Michels v. Sklavos, Ky., 869 S.W.2d
728 (1994) and Alagia, Day, Trautwein & Smith v. Broadbent, Ky.,
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882 S.W.2d 121 (1994), for the proposition that pursuant to
KRS 413.245 the one (1) year does not begin to run until final
outcome of a case is decided.
The rationale for this holding is
that one cannot determine if one has suffered injury until the
case becomes final.
The Supreme Court reaffirmed this principle in Meade
County Bank v. Wheatly, Ky., 910 S.W.2d 233 (1995) (held that
statute of limitations did not begin to run until date of
foreclosure sale on property because that was the date bank
realized legally compensable damages).
In Barker v. Miller, Ky.
App., 918 S.W.2d 749 (1996), the Court of Appeals reviewed the
history of cases dealing with KRS 413.245.
The Court held:
We agree with the appellees that this case is
controlled by the "occurrence rule" set forth
in Hibbard1 and its progeny. Any damages
Barker suffered as a result of any alleged
malpractice of one or more of the appellees
became fixed and non-speculative on the day
the Kentucky Supreme Court denied
discretionary review. Any occurrence
happened as the finality date of the
litigation.
Barker v. Miller, 918 S.W.2d at 751.
In the case sub judice, the trial court granted summary
judgment because it found that Patterson had not filed the
malpractice action until January 2, 1996.
The court reasoned
that the divorce was final December 11, 1991, and Patterson knew
or should have discovered within one year thereafter whether he
had suffered any injury as a result of Mills' representation.
1
Hibbard v. Taylor, Ky., 837 S.W.2d 500 (1992)
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Patterson was put on notice that the court had held his
visitation rights in abeyance until he was no longer
incarcerated.
We agree that Patterson is foreclosed from
proceeding in this matter due to his failure to timely file his
cause of action.
Whether we utilize the December 11, 1991 date
of divorce, or the February 1992 date when Mills informed, and
Patterson acknowledged, that his legal representation had
terminated, or the April 12, 1993 date when Patterson filed his
pro se motion to modify decree and grant visitation rights does
not matter.
Under these scenarios, Patterson failed to timely
comply with KRS 413.245 and is thus precluded from seeking relief
in a legal malpractice claim.
The original divorce action was concluded on
December 11, 1991.
No appeal was prosecuted nor did Patterson
request additional services from Mills.
Mills' representation of
Patterson was subsequently terminated without further contact
between the parties.
From the record it appears that Patterson
was able to visit with his son through a voluntarily arrangement.
When he wanted additional visitation he pursued filing his own
motion and argued that he was entitled to a hearing.
Obviously,
by this date (April 12, 1993) he knew or had discovered what he
now claims to be the cause of his alleged injury.
The "discovery
rule" as applied to civil actions filed in a court of law, tolls
the running of the statute of limitations only where the cause of
action is not reasonably discoverable until the plaintiff knows
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or in the exercise of reasonable care should know, that the
injury has occurred.
Michels, supra at 732.
Patterson argues that the filing of the writ of
mandamus tolls the statute until such time as that case was
finally resolved.
However, such a writ is an original proceeding
in the appellate court and thus clearly distinguishes this case
from those cases cited by Patterson.
Summary judgment was
appropriate in this case in that there was no genuine issue as to
any material fact and the moving party was entitled to judgment
as a matter of law.
Old Mason's House v. Mitchell, Ky. App., 892
S.W.2d 304 (1995); Steelvest, Inc. v. Scansteel Service Center,
Inc., Ky., 807 S.W.2d 476 (1991).
Patterson could not possibly
strengthen his case at trial and, as such, Mills would be
entitled ultimately and inevitably to a directed verdict.
Mason's House, supra.
Old
Additionally, it should be pointed out in
this case as it was in Meade County Bank, supra, at 234, 235
"that in legal negligence, as in any negligence case, there must
have been a 'negligent act or omission and legally cognizable
damages.'
(Citations omitted).
Without damages, there is no
ripened claim."
Having decided that Patterson failed to comply with KRS
413.245 in filing his legal malpractice action, his second
argument as to the arbitrariness of the trial court's order
regarding his response to the summary judgment motion is deemed
moot.
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For the foregoing reasons, we affirm the Knox Circuit
Court order dismissing Patterson's untimely filed action.
ALL CONCUR.
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BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Jimmy Patterson
Central City, KY
D. Randall Jewell
Barbourville, KY
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