THOMAS STEPHENS v. TIMOTHY DENISON
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RENDERED:
NOVEMBER 5, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002109-MR
THOMAS STEPHENS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 98-CI-006737
TIMOTHY DENISON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, MINTON, AND TAYLOR, JUDGES.
BUCKINGHAM, JUDGE:
Thomas Stephens was convicted of obtaining a
controlled substance by fraud and of being a first-degree
persistent felony offender (PFO I) and was sentenced to twenty
years in prison following a jury trial in the Bullitt Circuit
Court.
He claims that his predicament was caused by the legal
malpractice of the attorney representing him, Timothy Denison.
Stephens filed a malpractice claim against Denison in the
Jefferson Circuit Court, but the court granted Denison’s summary
judgment motion.
We affirm.
A Bullitt County grand jury initially indicted
Stephens for the offense of obtaining a controlled substance by
fraud.
It later indicted him for PFO I.
represent him on the charges.
He retained Denison to
Stephens was convicted on both
counts after a jury trial in October 1997 and was sentenced to
an enhanced term of twenty years in prison.
His conviction was
upheld on direct appeal by the Kentucky Supreme Court in an
unpublished opinion.
While Stephens’s direct appeal was pending before the
supreme court, he filed a civil suit in the Jefferson Circuit
Court against Denison claiming malpractice.
Stephens asserted
that Denison failed to notify him that the Commonwealth had made
a plea offer under which he could have pled guilty to the
obtaining a controlled substance by fraud charge and received a
two-year sentence, with the Commonwealth agreeing not to bring
the PFO charge.
Stephens alleged that he was not informed of
this offer until it was too late to accept it.
Further, he
claimed that Denison was under the influence of cocaine during
the trial.
The circuit court awarded summary judgment in
Denison’s favor in an opinion and order entered on July 19,
2000.
The court reasoned that Stephens’s claim was barred by
the applicable statute of limitation.
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However, this court
reversed the judgment and remanded the case to the circuit
court.
See Stephens v. Denison, Ky. App., 64 S.W.3d 297 (2001).
Denison subsequently filed a renewed motion for
summary judgment.
He argued that Stephens’s failure to identify
an expert witness to support his claim and his failure to obtain
postconviction relief barred any claim of legal malpractice.
Stephens filed a response arguing that no expert testimony was
necessary to support his claim and that his failure to obtain
postconviction relief did not bar his claim because the issue
was the length of his sentence, not his innocence.
On September 9, 2003, the circuit court entered an
order granting Denison’s renewed summary judgment motion.
The
court reasoned that expert testimony was necessary to prove
Stephens’s claim of legal malpractice and that Stephens had
failed to identify any expert witness.
The court did not
address Denison’s argument that Stephens’s failure to obtain
postconviction relief also barred the claim.
This appeal by
Stephens followed.
Stephens argues on appeal that the circuit court erred
in granting Denison’s renewed summary judgment motion based on
Stephens’s lack of an expert witness to support his claim.
He
maintains that expert witness testimony was not necessary in
order for a jury to determine whether Denison failed to inform
him of the plea offer while it was still in effect and whether
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such alleged failure helped prove the elements necessary to
support a legal malpractice claim.
Thus, he contends that this
court should reverse the judgment and remand the case for trial.
In order to support a claim of legal malpractice, a
plaintiff must prove “1) that there was an employment
relationship with the defendant/attorney; 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 the attorney’s negligence was the proximate cause of
damage to the client.”
Marrs v. Kelly, Ky., 95 S.W.3d 856, 860
(2003), quoting Stephens, 64 S.W.3d at 298-99.
Because there is
no question that there was an employment relationship with
Denison and Stephens, the issue is whether expert witness
testimony was necessary for Stephens to prove that Denison
neglected his duty to exercise ordinary care and that Denison’s
negligence was the proximate cause of damage to Stephens.
The question of whether expert testimony is always
required in legal malpractice actions is apparently one of first
impression in Kentucky.
Kentucky has adopted an exception that
allows medical malpractice claims to proceed without expert
testimony where the negligence is so apparent that a layperson
with general knowledge would have no difficulty recognizing it.
See Jarboe v. Harting, Ky., 397 S.W.2d 775, 778 (1965); Harmon
v. Rust, Ky., 420 S.W.2d 563, 564 (1967); Maggard v. McKelvey,
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Ky. App., 627 S.W.2d 44, 49 (1981).
A similar result has been
reached in dental malpractice actions.
See Butts v. Watts, Ky.,
290 S.W.2d 777, 779 (1956).
Because Kentucky courts allow medical and dental
malpractice claims to proceed absent expert testimony where the
negligence is so apparent that a layperson with general
knowledge would have no difficulty recognizing it, we see no
reason why such a rule should not be extended to legal
malpractice claims.
Stephens’s allegation that Denison failed
to communicate a plea offer to him until such time as it could
no longer be accepted would fall within the aforementioned
exception.
Thus, his failure to identify an expert witness is
not, by itself, fatal to his claim.
Therefore, we conclude that
the circuit court erred in granting summary judgment in favor of
Denison based solely on Stephens’s failure to identify an expert
witness.
Although we have concluded that the circuit court
erred in granting Denison’s summary judgment motion based on
Stephens’s failure to have an expert witness to support his
claim, we nevertheless believe the court, for a different
reason, correctly granted the motion.1
Although the court did
not address Denison’s argument that Stephens was required to
1
An appellate court may affirm a trial court for any reason sustainable in
the record. See Kentucky Farm Bureau Mut. Ins. Co. v. Gray, Ky. App., 814
S.W.2d 928, 930 (1991).
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obtain postconviction relief as a prerequisite to bringing his
malpractice claim, we believe the argument has merit.
In Ray v.
Stone, Ky. App., 952 S.W.2d 220 (1997), this court addressed the
issue in a case involving facts similar to those in this case.
In the Ray case, Ray pled guilty to the charge of trafficking in
a controlled substance (cocaine) and was sentenced to nine years
in prison pursuant to a plea agreement with the Commonwealth.
DUI and PFO I charges were dismissed under that agreement.
Ray’s postconviction motions to have the judgment vacated or set
aside were unsuccessful.
Ray alleged that the attorney representing him
negligently performed his professional duties and
responsibilities, and Ray filed a civil action in the circuit
court alleging legal malpractice.
to grant him summary judgment.
The attorney moved the court
The circuit court granted the
motion, and Ray appealed.
On appeal this court affirmed the circuit court’s
summary judgment and stated that “[t]here being no fact question
concerning his innocence, public policy compels us to conclude
that any acts or omissions by attorney Stone are not the cause
of Ray’s alleged damages.
Instead, Ray must accept as the sole,
proximate, and producing cause of the indictment, conviction,
and resultant incarceration, his own unlawful conduct.”
224.
Id. at
This court further stated that it supported the public
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policy that prohibits financial gain resulting directly or
indirectly from criminal acts.
Id.
Quoting In re Laspy’s Estate, 409 S.W.2d 725, 728 (Mo.
App. 1966), this court reasoned that allowing Ray to maintain a
malpractice action against his attorney would allow him “to
profit . . . or take advantage of his own wrong, or to found a
claim upon his iniquity or to acquire property by his own
crime.”
952 S.W.2d at 224.
This court further explained that
“[b]efore it can be demonstrated that the attorney’s actions
were the proximate cause of his damages, the plaintiff must
establish his innocence.”
Id.
Finally, based on Ray’s guilty
plea and the lack of a fact issue concerning his innocence, the
court reasoned that the attorney was entitled to summary
judgment.
Id. at 225.
A case with facts similar to those in this case was
before the Ohio Supreme Court in Krahn v. Kinney, 538 N.E.2d
1058 (Ohio 1989).
In that case Krahn’s attorney did not
communicate a plea offer by the prosecutor to dismiss Krahn’s
charges in return for her willingness to testify against another
of her attorney’s clients.
As a result, Krahn later pled guilty
to a misdemeanor offense pursuant to her attorney’s advice and
without the benefit of knowing the plea offer.
Krahn then
retained another attorney and filed a civil action against her
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first attorney for legal malpractice arising from his
representation of her in the criminal case.
The case eventually came before the Ohio Supreme
Court, which affirmed a lower appellate court’s reversal of a
summary judgment in favor of the attorney.
Quoting from the
lower appellate court, the Ohio Supreme Court reasoned that
Krahn’s injury “is not a bungled opportunity for vindication,
but a lost opportunity to minimize her criminal record.”
1061.
Id. at
The court reasoned that the situation was similar to that
in civil cases where the attorney fails to disclose a settlement
offer.
Id.
The court concluded that “a plaintiff need not
allege a reversal of his or her conviction in order to state a
cause of action for legal malpractice arising from
representation in a criminal proceeding.”
Id.
Despite the holding of the Ohio Supreme Court in the
Krahn case, a majority of states that have addressed the issue
have concluded that postconviction relief is a prerequisite to
maintaining a legal malpractice action arising out of criminal
representation.
2003).2
See Canaan v. Bartee, 72 P.3d 911, 914 (Kan.
In the Canaan case, the Kansas Supreme Court stated that
many courts have cited equitable principles, such as a concern
2
The court in the Canaan case cited numerous opinions from other
jurisdictions that held that a plaintiff must show exoneration by
postconviction relief before maintaining a cause of action for legal
malpractice. See id. at 915-16.
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that a defendant should not be allowed to profit from his or her
illegal conduct and that it is improper to shift the burden of
responsibility for the crime away from the criminal and to his
attorney, as a justification for the exoneration rule.
916.
Id. at
Further, the court held that “without exoneration, it
cannot be said that the attorney’s actions were the proximate
cause of the guilty criminal’s injury.”
Id.
The court
concluded that unless the defendant obtained relief from his
conviction or sentence, then his own actions are presumed to be
the proximate cause of his injury.
Id.
We agree with the principles discussed by the Kansas
Supreme Court in the Canaan case and followed by a panel of this
court in the Ray case.
Therefore, because Stephens has not
obtained exoneration from his conviction and sentence through
postconviction relief, he may not maintain a cause of action
against Denison for legal malpractice.
In short, the circuit
court properly awarded summary judgment in Denison’s favor
because there was no genuine issue of material fact in this
regard.
See Kentucky Rules of Civil Procedure (CR) 56.03.
The judgment of the Jefferson Circuit Court is
affirmed.
MINTON, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas Stephens, Pro Se
Marion Adjustment Center
St. Mary, Kentucky
Paul S. Gold
Louisville, Kentucky
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