WILLIAM L. CLEMENTS v. THEODORE H. LAVIT
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RENDERED: NOVEMBER 8, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001829-MR
WILLIAM L. CLEMENTS
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 96-CI-00150
v.
THEODORE H. LAVIT
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
William L. Clements appeals from a judgment of the
Casey Circuit Court dismissing his complaint against Theodore H.
Lavit for legal malpractice.
The trial court concluded that
Clements’s defective service of the summons on Lavit did not toll
the one-year statute of limitations, and thus Clements’s causes
of action were untimely.
We find that Clements’s errors in
obtaining the issuance of a valid summons did not amount to bad
faith which would render his claims untimely.
We further find
that the trial court prematurely dismissed the professional
negligence claim which arose from Lavit’s representation of
Clements in a civil case.
However, we agree with the trial court
that Clements’s admission of guilt in the underlying criminal
case precludes his claims against Lavit arising from that case.
Hence, we affirm in part, reverse in part, and remand for further
proceedings.
On September 9, 1996, Clements filed a complaint
against Lavit in the Casey Circuit Court.
Clements alleged that
Lavit had negligently provided legal representation to him in two
separate proceedings: one civil and one criminal.
The complaint
and summons were delivered to Lavit’s office in Lebanon, Marion
County, Kentucky, and the return-receipt card was signed by
Margaret Smith at that address.
On September 30, 1996, Lavit
filed an answer which, among other things, objected to personal
jurisdiction and venue in the Casey Circuit Court.
Lavit
asserted that the service of process was defective because he was
not served in the county where the action was brought, as
required by KRS 452.480 and 452.485.
In addition, Lavit filed a
counterclaim against Clements, seeking payment for legal services
rendered.
On November 8, 1996, Lavit filed a motion to quash the
summons and to dismiss the complaint based upon the defective
service of process.
In an order entered on January 13, 1997, the
trial court granted the motion to quash the summons, but denied
the motion to dismiss.
The court noted that venue would be
proper in Casey County if Lavit were personally served there.
Shortly thereafter, Clements had the Marion County Sheriff
personally serve Lavit at Lavit’s office in Marion County.
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Lavit
again moved to quash the summons, citing the defective service
under KRS 452.480 and 452.485.
The trial court granted the
motion by order entered July 22, 1997.
Clements filed a motion to reconsider that order.
At
the hearing on February 23, 1998, Clements’s attorney moved to
transfer the case to Marion Circuit Court.
The trial court
granted the motion over Lavit’s objection.
However, the Marion
Circuit Court agreed with Lavit that, under the version of KRS
452.010 which was then in effect, the Casey Circuit Court could
not order a change of venue over Lavit’s objection.1
By order
entered on September 11, 1998, the Marion Circuit Court dismissed
the transferred action and returned the case file to the Casey
Circuit Court.
On November 20, 1998, Lavit was personally served in
Casey County with Clements’s summons and complaint.
In May of
1999, Lavit filed a motion to dismiss, alleging that the
defective service did not toll the statute of limitations and as
a result, Clements’s causes of action were now untimely.2
In
addition, Lavit argued that Clements had failed to state causes
of action for the professional negligence claims, noting that
Clements failed to appeal from the dismissal of his civil action,
and he admitted his guilt in the criminal matter.
The trial
1
Effective July 14, 2000, KRS 452.105 now permits a court which lacks venue to transfer
the case to a court with proper venue, even over the objection of one of the parties.
2
KRS 413.245 requires any cause of action arising from the negligent performance of
professional services to be brought within one 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.
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court denied the motion to dismiss on July 2, 1999.
However, two
years later Lavit filed a renewed motion to dismiss based upon
the same grounds, which the trial court granted on July 23, 2001.
The trial court later denied Clements’s CR 59.05 motion to set
aside the order dismissing, and this appeal followed.
It is well-established that an action for professional
negligence is transitory.3
Therefore, the action may be brought
in the county in which the defendant resides or is summoned.4
In
its order of January 13, 1997, the trial court noted that Lavit
regularly practiced in Casey County, and both of the underlying
actions were tried in Casey County.
However, KRS 452.485
prohibits any judgment from being entered in a transitory action
against a single defendant unless the defendant is summoned in
the county where the action is brought, or unless he resides in
the county where the action is brought, or unless he files a
defense to the action before objecting to the jurisdiction of the
court.
Because Lavit did not reside in Casey County, the trial
court could not exercise personal jurisdiction unless he was
personally served there or unless he waived any objection to
personal jurisdiction.
As noted by the trial court, a civil action is deemed
to commence upon the filing of a complaint with the court and the
issuance of the summons in good faith.5
the summons was issued in good faith.
The question is whether
The trial court agreed
3
Wood v. Downing's Administrator, 110 Ky. 656, 62 S.W. 487, 489 (1901).
4
KRS 452.480.
5
KRS 413.250; CR 3.01.
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that Clements had filed his complaint within one year after his
causes of action accrued.
However, the court concluded neither
of the first two summons had been issued in good faith because
they could not have led to valid service.
The court also noted
that there was a delay of nearly sixteen months between the
quashing of the second summons and Lavit’s actual service in
Casey County.
Consequently, the court determined that the one-
year statute of limitations had not been tolled, and Clements’s
action was now untimely.
We disagree.
The issuance of a summons does not commence an action
unless accompanied by an intent that the summons be served in due
course.6
But mere negligence in the execution and issuance of a
summons will not bar a cause of action.7
If, when the summons
was issued, the plaintiff had a bona fide, unequivocal intention
of having it served presently or in due course or without
abandonment, the summons was issued in good faith.8
In support of its conclusion that the summons had not
been issued in good faith, the trial court cited Brock v. Turner
Fuel Co.,9 as holding that a delay of six months in obtaining an
issuance of a second summons was destructive of good faith in the
issuing of process necessary for the commencement of an action so
6
Whittinghill v. Smith, Ky. App., 562 S.W.2d 649, 650 (1977).
7
Jones v. Baptist Healthcare System, Inc., Ky. App., 964 S.W.2d 805, 807 (1997).
8
Roehrig v. Merchant's & Businessmen's Mutual Insurance Co., Ky., 391 S.W.2d 369,
371 (1965).
9
296 Ky. 729, 178 S.W.2d 427 (1944).
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as to toll limitations statutes.10
However, in Brock, although
the summons was issued prior to expiration of the limitations
period, the plaintiff's attorney held it until after the
limitations period had passed.
There was no evidence of any
attempt to serve the first summons.11
In contrast, other cases
have held that a party’s failure to follow the precise statutory
method for service of summons did not amount to bad faith.12
In this case, Clements and his trial counsel exercised
less than perfect diligence in attempting to serve Lavit.
While
the procedures for service in a transitory action are unique (and
one could argue outdated), they are clearly set out in the
applicable statutes.
Nevertheless, there was no evidence which
supports a conclusion that either Clements or his trial counsel
did not intend to immediately commence the action against
10
Id. at 429.
11
See also Graham v. Harlin, Parker & Rudloff, Ky. App., 664 S.W.2d 945 (1983) and
Whittinghill v. Smith, supra, both holding that causing a summons to be issued by the clerk
conditionally is not causing it to be issued in good faith.
12
See also Jones v. Baptist Healthcare System, Inc., supra (Secretary of State provided
incorrect name for the defendant’s agent for service of process); Crowe v. Miller, Ky., 467
S.W.2d 330, 333 (1971) (Plaintiff’s mistake as to the proper method of service of process upon
an unmarried defendant, over eighteen but less than twenty-one years of age did not amount to
bad faith); Roehrig v. Merchants & Businessmen's Mut. Ins. Co., supra, (Plaintiff’s attempt to
serve process on a foreign corporation through the incorrect agent did not amount to bad faith);
Commonwealth, Dept. of Highways v. Parker, Ky., 394 S.W.2d 899 (1965) (Plaintiff’s mistake
in seeking to obtain service upon the Workmen's Compensation Board by having summons
served on the Attorney General did not amount to bad faith); and Hausman's Adm'r v. Poehlman,
314 Ky. 453, 236 S.W.2d 259 (1951) (Although plaintiff’s counsel should have exercised greater
diligence in discovering the defendant’s correct address, the Court held that the mistake did not
warrant a finding that the summons had not issued in good faith).
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Lavit.13
Lavit received actual notice of the filing of the
action.
The summons was delivered to Lavit’s correct office
address in Marion County, and Lavit was personally (albeit
improperly) served with the second summons.
After the second
summons was quashed, Clements filed a motion to transfer the case
to Marion County -- a motion which the Casey Circuit Court
granted.
Finally, less than two months after the case was
returned to Casey County, Clements obtained personal service of
the summons on Lavit in Casey County.
Neither the trial court
nor Lavit refer to any evidence in the record that Clements could
have obtained personal service on Lavit in Casey County prior to
November 1998.
Consequently, the statute of limitations was
tolled when Clements filed his initial complaint, and his causes
of action remain timely.
In its order dismissing, the trial court recognized
that its ruling finding Clements’s action untimely rendered moot
the other issues raised in Lavit’s motion to dismiss.
Nonetheless, the trial court found that Clements was collaterally
estopped from claiming professional negligence with regard to
either of the underlying cases because Clements failed to appeal
from the adverse judgments.
While the trial court addressed the
sufficiency of Clements’s claims on a motion to dismiss, it
considered matters outside of the pleadings.
13
Accordingly, the
See also Louisville & Nashville Railroad Co. v. Little, 264 Ky. 579, 95 S.W.2d 253,
255 (1936).
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motion should have been treated as a summary judgment motion
pursuant to CR 56.02.14
The standard of review on appeal from a summary
judgment is whether the trial court correctly determined 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.15
Summary judgment may be granted only if it appears impossible for
the non-moving party to produce evidence at trial warranting a
judgment in his favor after the record has been reviewed by the
court in a light most favorable to the party opposing the motion
for summary judgment--with all doubt having been resolved in his
favor.16
Since factual findings are not at issue, the ruling of
the trial court is given no deference.17
The trial court ruled that both of Clements causes of
action were barred “by principles of collateral estoppel or res
judicata.”
However, if these doctrines were applicable, no party
alleging negligence by an attorney could ever recover.
The
adverse judgment would invariably preclude re-litigation of the
underlying cases.
Rather, to prevail in a professional
negligence action against an attorney, a plaintiff is required to
prove:
1) that there was an employment relationship with the
defendant/attorney;
2) that the attorney neglected his duty to
14
CR 12.03.
15
Scifres v. Kraft, Ky. App., 916 S.W.2d 779 (1996) (citing CR 56.03).
16
Steelvest v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 483 (1991).
17
Scifres v. Kraft, 916 S.W.2d at 781 (citing Goldsmith v. Allied Bldg. Components,
Inc., Ky., 833 S.W.2d 378, 381 (1992)).
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exercise the ordinary care of a reasonably competent attorney
acting in the same or similar circumstances; and 3) that the
attorney's negligence was the proximate cause of damage to the
client.18
Based upon this standard, we find that summary
judgment was appropriate as to the claim arising from the
criminal matter, but not as to the claim arising from the civil
action.
In Commonwealth of Kentucky v. William L. Clements,19
Clements was charged with fourth-degree assault of his fifteenyear-old daughter.20
Clements asserts that he hired Lavit to
represent him in the action.
represent Clements.
Lavit denies that he agreed to
In any event, Clements appeared for trial on
September 22, 1995, without counsel.
Testifying on his own
behalf, Clements admitted that he struck his daughter three times
with his belt, but he asserted that his actions were justified in
reasonably disciplining the child.
The trial court, sitting
without a jury, concluded that Clements had used excessive force
and found him guilty of fourth-degree assault.
In a related
proceeding, Clements stipulated that the child had been abused
within the meaning of KRS 600.020(1).
On appeal, Clements concedes that he was guilty of the
charge against him, but he contends that his innocence or guilt
is irrelevant to his claims against Lavit.
We disagree.
If
Lavit had agreed to represent Clements, his failure to appear for
18
Daugherty v. Runner, Ky. App., 581 S.W.2d 12, 16 (1978).
19
Casey District Court, Action No. 1995-D-00091-001.
20
Fourth-degree assault is a class A misdemeanor. KRS 508.030.
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the trial clearly would have been a breach of his duty to
exercise the ordinary care of a reasonably competent attorney
acting in the same or similar circumstances.
Nevertheless,
Clements’s admission that the evidence supported his conviction
precludes any finding that his justification defense would have
prevailed.21
Consequently, this trial court properly dismissed
this claim.
In William L. Clements v. Shelter Insurance Company,22
Clements filed a complaint against his motor vehicle insurance
carrier seeking to recover benefits allegedly due under the
policy.
The carrier denied coverage based upon alleged
misrepresentations in Clements’s original application for
insurance.
The Shelter case was dismissed for lack of
prosecution on August 30, 1995, and the order dismissing became
final on September 25, 1995.
Lavit contends that Clements failed
to cooperate in the discovery process, while Clements asserts
that Lavit failed to diligently pursue the matter.
Clements admits he failed to appeal from the dismissal
of this action despite Lavit’s recommendation that he do so.
Lavit argues that Clements’s failure to appeal precludes any
recovery for professional negligence.
We disagree.
Clements was
21
Ray v. Stone, Ky. App., 952 S.W.2d 220, 223 (1997). If Clements had alleged that he
had paid a retainer to Lavit for the representation but Lavit failed to provide any services, then
Clements’s innocence or guilt on the underlying charge would not preclude his claim. But such a
claim would be one for breach of contract rather than tort.
22
Casey Circuit Court, Action No. 89-CI-00153. This action was originally filed in
Marion Circuit Court, but was later transferred to the Casey Circuit Court.
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not required to appeal from the dismissal of his civil action if
Lavit’s negligence rendered an appeal futile.
Under CR 41.02, a trial court has the discretion to
dismiss an action with prejudice for failure of the plaintiff to
prosecute or to comply with the orders of the court.23
Because
of the grave consequences of a dismissal with prejudice, a trial
court should grant such a dismissal only in the most extreme
cases.24
Yet while the court’s decisions in such matters will be
subject to close scrutiny on appeal, a trial court’s discretion
will not be disturbed except for abuse.25
It is by no means
clear from the record that the circumstances surrounding the
dismissal of the civil case could have warranted a finding of
abuse of discretion.
Furthermore, Lavit’s alleged negligence
would not have been a factor in determining whether the trial
court abused its discretion in dismissing the action.26
We
conclude that there were genuine issues of material fact which
rendered summary judgment on this claim inappropriate.
Accordingly, the judgment of the Casey Circuit Court is
affirmed in part, reversed in part, and this case is remanded for
further proceedings on the merits of Clements’s claim against
Lavit arising from the dismissal of the civil action.
23
See also CR 77.02.
24
Polk v. Wimsatt, Ky. App., 689 S.W.2d 363, 364-65 (1985).
25
Id. at 365. See also Thompson v. Kentucky Power Co., Ky. App., 551 S.W.2d 815, 816
26
See Vanhook v. Stanford-Lincoln City Rescue Squad, Ky. App., 678 S.W.2d 797, 799
(1977).
(1984).
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Martin N. Kute
Louisville, Kentucky
Jerry L. Foster
Liberty, Kentucky
Philip C. Kimball
Louisville, Kentucky
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