THOMAS HENSLEY v. WARREN SCOVILLE, PSC; WARREN SCOVILLE; AND UNKNOWN DEFENDANTS
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RENDERED:
AUGUST 25, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002157-MR
THOMAS HENSLEY
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 94-CI-00041
v.
WARREN SCOVILLE, PSC; WARREN SCOVILLE;
AND UNKNOWN DEFENDANTS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, Thomas Hensley, appeals from a
summary judgment dismissing his legal malpractice action against
Warren Scoville.
As we agree that there is no genuine issue of
material fact and that appellee is entitled to judgment as a
matter of law, we affirm the judgment of the Laurel Circuit
Court.
On December 31, 1991, Snowden Baker, Jr. and Jeffrey
Payne were shot while at the residence of appellant.
as a result of his wounds, but Payne recovered.
Baker died
On February 21,
1992, appellant was indicted for murder, assault in the first
degree, and persistent felony offender in the second degree.
Appellant's trial commenced on January 19, 1993.
Appellant was
represented at trial by retained counsel, Warren Scoville.
The
jury found appellant guilty of murder and first-degree assault.
On February 12, 1993, appellant was sentenced in accordance with
the jury's recommendation, to 50 years for murder and 20 years
for first-degree assault, with the sentences to run
consecutively.
Appellant's conviction was affirmed by the
Kentucky Supreme Court on February 25, 1994.
On January 22, 1994, appellant filed a civil complaint
in Laurel Circuit Court against his attorney Warren Scoville on
grounds of negligence, malpractice, misrepresentation, fraud, and
violation of his civil and constitutional rights.
Appellant also
named as unknown defendants those insurance companies or
corporations which provided Scoville with malpractice insurance.
Appellant sought a jury trial, and actual, punitive, and
compensatory damages.
The complaint was dismissed on April 26,
1994 for insufficient service of process, but was ordered
reinstated by this Court on August 11, 1995.
set for September 8, 1997.
A trial date was
After several motions for
continuances filed by Scoville, trial was again set for
September 15, 1999.
On July 21, 1999, Scoville filed a motion
for summary judgment, with a supporting affidavit from attorney
William Gary Crabtree.
Crabtree, an experienced trial attorney,
stated that he had reviewed the complete record, including the
trial transcript, and concluded that, in his expert opinion,
Scoville's representation met the standard of care and did not
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depart from the quality of professional conduct customarily
provided by members of the legal profession.
On August 2, 1999,
appellant filed a response to Scoville's motion, including as
exhibits post-trial questionnaires from several of the trial
jurors.
On August 13, 1999, the court entered an order granting
Scoville's motion, and dismissing appellant's complaint.
The
court stated that the affidavit by Crabtree established that
Scoville met the standard of care.
The court acknowledged the
questionnaires directed to trial jurors filed by appellant, but
stated that these questionnaires did not constitute expert
opinion to controvert that of Crabtree and create an issue of
fact.
The court further noted, citing Ray v. Stone, Ky. App.,
952 S.W.2d 220 (1997), that Hensley cannot maintain an action
against Scoville until such time as he has proven his innocence
of the underlying criminal charges.
On August 23, 1999 appellant filed a motion pursuant
to CR 59.05, requesting the court set aside or vacate the
August 13, 1999 order and allow appellant to amend his complaint
to include a new claim that Scoville had never informed him of
the Commonwealth's offer of a plea bargain.
The motion was
denied on August 24, 1999, and this appeal followed.
On appeal, appellant argues that the court erred in
granting Scoville's motion for summary judgment and dismissing
appellant's complaint.
Appellant contends that Scoville
"prosecuted [him] more than the Commonwealth's attorney did",
lied, and then altered or helped to alter the trial tape and
transcript.
Among the instances of malpractice cited by
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appellant are allegations that Scoville made various statements
at the trial which were "devastating" to appellant's case, such
as, "This is America, this is Kentucky, everybody has a right to
their day in court, somebody has to represent people like Thomas
Hensley and Stephanie Baker, and I hope you won't hold this
against me."
Appellant alleges that these remarks are not
contained on the audiotapes or in the transcript of the trial
because the trial tapes were altered by Scoville.
The standard of review of a trial court’s granting of
summary judgment is “whether the trial court correctly found that
there were no genuine issues as to any material fact and that the
moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 780 (1996).
We are
to view the record in the light most favorable to the party
opposing the motion and resolve all doubts in its favor.
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476, 480 (1991).
In a suit against an attorney for malpractice, the
plaintiff must prove:
(1) that the attorney was employed by the
plaintiff; (2) that the attorney neglected his duty to exercise
the ordinary care of a reasonably competent attorney acting in
the same or similar circumstances; and (3) that such negligence
resulted in and was the substantially contributing factor in the
loss to the plaintiff.
Daugherty v. Runner, Ky. App., 581 S.W.2d
12, 16 (1978), citing Maryland Casualty Co. v. Price, 231 F. 397
(4th Cir. 1916).
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We agree with the trial court that summary judgment was
proper.
A party opposing a properly supported summary judgment
motion cannot defeat it without presenting at least some
affirmative evidence showing that there is a genuine issue of
material fact for trial.
Steelvest, 807 S.W.2d at 482.
Appellant offered no evidence sufficient to counter the affidavit
of Crabtree that Scoville's representation met the standard of
care.
The post-trial questionnaires offered by appellant are
inadmissable speculation, unproven facts, and distortions which
cannot be used to impeach a jury verdict.
See Howard v.
Commonwealth, Ky., 240 S.W.2d 616 (1951); McQueen v.
Commonwealth, Ky., 721 S.W.2d 694 (1986) cert. denied, 481 U.S.
1059, 105 S. Ct. 2203, 95 L. Ed. 2d 858 (1987), which holds such
interviews incompetent evidence to establish grounds for a new
trial except to establish that a verdict was made by lot.
Further, appellant has offered no evidence to meet the
third prong of the test, that Scoville's negligence resulted in
and was the substantially contributing factor in the loss to
appellant.
Daugherty, 581 S.W.2d at 16.
With regard to attorney
malpractice in a criminal case, in Ray v. Stone, Ky. App., 952
S.W.2d 220, 224 (1997), this Court stated:
Before it can be demonstrated that the
attorney's actions were the proximate cause
of his damages, the plaintiff must establish
his innocence. "If a criminal defendant
obtains post-conviction relief and proves by
a preponderance of the evidence that he is
innocent of the underlying offense, he has
then satisfied this prerequisite and may be
able to prove his attorney's malpractice was
the proximate cause of his injuries." Peeler
v. Hughes & Luce, 868 S.W.2d 823, 832, aff'd,
909 S.W.2d 494 (Tex. 1995).
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Appellant has been unsuccessful in his attempts to
obtain post-conviction relief, and has not established his
innocence.
Id.
On September 30, 1997, appellant filed a motion
in Laurel Circuit Court to vacate judgment pursuant to RCr 11.42,
alleging ineffective assistance of counsel.
An evidentiary
hearing was held on April 15, 1999, and the motion denied by the
court on May 20, 1999.
This Court affirmed the decision of the
Laurel Circuit Court in an unpublished opinion, 1999-CA-001694MR, rendered on May 5, 2000.
Appellant further argues that the court erred in
finding that Scoville committed no constitutional and civil
rights violations.
Appellant argues that Scoville denied
appellant the right to a fair trial and a meaningful appeal, and
violated his right to liberty.
Appellant contends that Scoville
was a state actor because he represented appellant in the
courtroom, and because of the affidavit he filed contradicting
appellant's RCr 11.42 motion.
The trial court found that
Scoville was acting as a private party, and not as a state actor,
as Scoville was a private attorney retained by appellant to whom
appellant paid a fee.
In Capital Area Right to Life, Inc. v.
Downtown Frankfort, Inc., Ky., 862 S.W.2d 297, 298-299 (1993),
cert. denied, 511 U.S. 1126, 114 S. Ct. 2132, 128 L. Ed. 2d 863
(1994) and 511 U.S. 1135, 14 S. Ct. 2153, 128 L. Ed. 2d 878
(1994), the Kentucky Supreme Court concluded that whether a
private entity is a state actor must be determined by considering
the aggregate of all relevant factors, such as whether the entity
is performing a traditionally public function, whether the state
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exercises coercive or significant power over the entity, and
whether the state and the private entity are intertwined in a
symbiotic relationship.
The actions of Scoville in representing
appellant in the courtroom and filing an affidavit in response to
appellant's RCr 11.42 motion, considered in light of the
aggregate of relevant factors, clearly does not compel a finding
of state responsibility.
Id.
Accordingly, the trial court
correctly found that Scoville was acting as a private party and
not as a state actor as could give rise to constitutional or
civil rights claims.
Appellant's final argument is that the court erred in
denying his CR 59.05 motion to set aside or vacate its summary
judgment.
Appellant filed his civil complaint against Scoville
on January 22, 1994, but contends that he was not aware until the
April 15, 1999 evidentiary hearing on his RCr 11.42 motion, that
the Commonwealth had offered a plea bargain.
Appellant alleged
in his CR 59.05 motion that Scoville had never informed him of
the Commonwealth's offer.
Appellant argues that regardless of
whether summary judgment was warranted on his initial claim, that
because of the new claim presented in his CR 59.05 motion, the
summary judgment should be set aside and appellant allowed to
amend his complaint to include the new claim.
CR 59.01(g) does give the trial court discretion to
grant a new trial on the basis of newly discovered evidence.
However, in exercising its discretion, the trial court has
standards and where the new evidence is not controlling or
doesn't demand a different verdict, the trial court has not
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abused its discretion in denying said motion.
Thomas v. Surf
Pools, Inc., Ky. App., 602 S.W.2d 437 (1980); Gibbs v.
Commonwealth, Ky. App., 723 S.W.2d 871 (1986).
When the evidence
is not so decisive, it doesn't compel a new trial.
Id.
If the
appellant was not aware of a plea bargain, that fact alone would
not justify a new trial on the malpractice claim.
For the foregoing reasons, the judgment of the Laurel
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas Hensley, Pro Se
West Liberty, Kentucky
R. William Tooms
London, Kentucky
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