GREGORY W. MARLOW v. KENNETH A. CONNELLY, JR.
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RENDERED:
OCTOBER 21, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001448-MR
GREGORY W. MARLOW
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 01-CI-007444
v.
KENNETH A. CONNELLY, JR.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Gregory W. Marlow, pro se, has appealed from an
order of the Jefferson Circuit Court entered on June 21, 2004,
which granted summary judgment in a legal malpractice lawsuit to
Kenneth A. Connelly, Jr., based on the action being barred by
the one-year statute of limitations in KRS 1 413.245.
Having
concluded that Greg has failed to produce any evidence to
support his claim that Connelly breached his duty to Greg and
1
Kentucky Revised Statutes.
that Connelly is entitled to a summary judgment as a matter of
law, although for a different reason, we affirm. 2
On April 29, 1996, Mary K. Marlow died testate and by
her will she bequeathed her estate equally to her three
children, Greg, George M. Marlow, and Marcia C. Eastridge.
The
probate court on May 16, 1996, appointed George executor of
Mary’s estate pursuant to the terms of her will.
A $70,000 bond
was set without surety, pursuant to the terms of Mary’s will.
In May 1996 George, as the executor for the estate, hired
Connelly for legal representation on behalf of the estate.
Based on Connelly’s advice, George opened an estate
checking account at PNC Bank in July 1996.
George paid several
of the estate’s debts from the checking account, including
utility and telephone bills.
He also issued checks in the
amount of $2,500.00 each to Greg, Marcia, and himself, as
partial distribution of the estate’s assets.
In October 1996 an estate inventory was filed with the
probate court listing assets of $61,822.38.
Connelly mailed a
letter to George on November 18, 1996, requesting George contact
him when all the estate checks had cleared so the estate could
be finalized.
In the meantime, both Greg and Marcia contacted
2
Kentucky Farm Bureau Mutual Insurance Co. v. Gray, 814 S.W.2d 928, 930
(Ky.App. 1991) (stating that “an appellate [ ] court may affirm the trial
court for any reason sustainable by the record”).
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Connelly regarding the status of the estate, both stating that
they had been unable to get in contact with George.
In February 1997 after being unsuccessful in his
attempts to contact George, Connelly called George’s father, who
stated that he did not know George’s whereabouts at that time.
Connelly immediately filed a motion with the probate court
requesting that the estate’s bank account be frozen.
An order
freezing the account was entered on March 3, 1997, and Connelly
hand-delivered the order to PNC Bank on that day.
On March 10,
1997, Connelly was notified that the estate account balance was
zero.
It was discovered that George and his wife had written
checks payable to “cash,” and had fraudulently endorsed and
cashed checks made payable to Greg and Marcia.
On October 10, 2001, Greg filed a complaint alleging
legal negligence against Connelly.
The complaint alleged that
Connelly “was hired to, and was responsible for the legal,
complete and successful settling of the estate of Mary K.
Marlow[,]” and that he “refused or neglected to discharge his
compensated duties, thereby rendering ineffective assistance,
and representation below the professional norm.”
Following
discovery by both parties, Connelly filed a motion for summary
judgment on May 21, 2004, arguing that Greg’s claim was barred
and should be dismissed because (1) the suit was not filed
within the required one year statute of limitations; (2)
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Connelly owed Greg no legal duty; and (3) Greg is unable to
prove that Connelly breached any duty.
14, 2004.
Greg responded on June
The trial court granted summary judgment in favor of
Connelly on June 21, 2004.
This appeal followed.
The standard of review governing an appeal of summary
judgment is well-settled.
We must determine whether the trial
court erred in concluding that there was no genuine issue as to
any material fact and that the moving party was entitled to a
judgment as a matter of law. 3
Summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” 4
In Paintsville Hospital Co. v.
Rose, 5 the Supreme Court of Kentucky held that for summary
judgment to be proper the movant must show that the adverse
party cannot prevail under any circumstances.
The Court has
also stated that “the proper function of summary judgment is to
terminate litigation when, as a matter of law, it appears that
it would be impossible for the respondent to produce evidence at
3
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996).
4
Kentucky Rules of Civil Procedure (CR) 56.03.
5
683 S.W.2d 255, 256 (Ky. 1985).
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the trial warranting a judgment in his favor.” 6
There is no
requirement that the appellate court defer to the trial court
since factual findings are not at issue. 7
“The record must be
viewed in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be resolved in
his favor” [citation omitted]. 8
Furthermore, “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.” 9
The action filed by Greg is governed by KRS 413.245,
which provides a one-year statute of limitations for
professional negligence claims, in pertinent part, as follows:
[A] civil action . . . 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.
The trial court determined this action was barred because it was
not filed within one year of its accrual.
6
Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
7
Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378, 381 (Ky.
1992).
8
9
Steelvest, 807 S.W.2d at 480.
Id. at 482.
1995).
See also Philipps, Kentucky Practice, CR 56.03, p. 321 (5th ed.
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Connelly contends the statute of limitations began to
run in 1997 after Greg discovered the estate account balance was
zero, or, at the latest, in 1999 when the probate court removed
George as executor and appointed attorney Chris Meinhart as a
public administrator to oversee the estate. 10
However, Greg
contends that the statute of limitations did not begin to run
until August 2003, when the estate was finalized.
In the context of a legal negligence claim, the
discovery provision of the statute of limitations has been
interpreted to mean that an injury is discovered (and that,
therefore, the statute of limitations begins to run) only when
the legal harm has become “definite and non-speculative” or
“when the underlying case is final.” 11
In Pedigo, 12 where the
party alleging legal negligence settled her underlying breast
implant claim before filing suit, our Supreme Court reviewed
relevant case law and stated the rule as follows:
A professional negligence claim does
not accrue until there has been a negligent
act and until reasonably ascertainable
10
Connelly states in his brief that his only client was George, and once
George was removed as executor Connelly had no client to represent.
Therefore, Connelly contends that his involvement in the case ended on June
1, 1999, with the appointment of a public administrator and that the statute
of limitations expired on June 1, 2000. This argument goes only to the
“continuous representation rule” discussed in Alagia, Day, Trautwein & Smith
v. Broadbent, 882 S.W.2d 121, 125-26 (Ky. 1994), and does not defeat Greg’s
claim when the “occurrence rule” is applied. See infra.
11
Pedigo v. Breen, ___ S.W.3d ___, *3 (Ky. 2005) (citing Alagia, supra).
12
___ S.W.3d at *2.
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damages are incurred. 13 When professional
negligence occurs during the course of
formal litigation, we have held that the
injury becomes definite and non-speculative
when the underlying case is final. 14 Until
the underlying case is final and nonappealable, the statute of limitations is
tolled because no cognizable claim has yet
accrued. 15
Similarly, in Meade County Bank v. Wheatley, 16 where a
bank brought a legal negligence claim against an attorney whose
title examination of property, upon which the bank relied in
making what it believed to be a first mortgage, failed to
disclose a prior recorded mortgage, our Supreme Court held the
statute of limitations did not begin to run until the date of
the foreclosure sale on property because that was the date the
bank realized legally cognizable damages.
The Court noted its
recent decision in Alagia, Day, Trautwein & Smith v. Broadbent, 17
and stated as follows:
As in this case, it was contended that there
could be no occurrence until damages arising
out of the negligent act became fixed and
non-speculative. We agreed. “Not until
damages were fixed by the final compromise
with the IRS was there an occurrence of the
type required to commence the running of the
13
See Faris v. Stone, 103 S.W.3d 1, 5 (Ky. 2003).
14
Id.; Hibbard v. Taylor, 837 S.W.2d 500 (Ky. 1992) (holding that damages
from underlying cause of action became fixed and non-speculative on the date
the Supreme Court denied discretionary review).
15
See Barker v. Miller, 918 S.W.2d 749, 751 (Ky.App. 1996).
16
910 S.W.2d 233 (Ky. 1995).
17
882 S.W.2d 121 (Ky. 1994).
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statute.” [Broadbent] at 126. We concluded
in Broadbent with the reminder that in legal
negligence, as in any negligence case, there
must have been a “negligent act or omission
and legally cognizable damages.” Id.
Without damages, there is no ripened claim.
In the present case, the time allowed
began to run as of the date of the
foreclosure sale. Prior to that date,
Appellants had only a fear that they would
suffer a loss on the property. Their fear
was not realized as damages until the sale
of the property in June of 1992. At that
time, what was merely probable became fact,
and thus commenced the running of the
statute. The May, 1991, appraisal which
showed the property’s value as being
substantially less than the debts against
it, was irrelevant as to certainty of
damages. At that point, appellant was
merely made aware that it might have
insufficient collateral on its loan. There
was no certainty of damages, as is required
by Broadbent.
Thus, in order for Greg’s claim to be dismissed based
on the statute of limitations, we would have to conclude that
his damages became fixed and non-speculative before the estate
was settled.
Since we believe this to be a close question and
since we conclude that none of our precedent is directly on
point, we choose instead to affirm the trial court on a ground
that we conclude is abundantly clear:
Greg’s failure to produce
any evidence of Connelly’s breach of duty.
In Greg’s answers to Connelly’s first set of
interrogatories, he identified Meinhart as a possible witness
stating that he “has knowledge of usual protocol and practice of
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attorneys in representing wills and estates.”
However, when
Connelly filed his motion for summary judgment, he filed in
support an affidavit from Meinhart.
In the affidavit Meinhart
contended that Connelly owed Greg no duty and that, even if he
did owe such a duty, he did not breach that duty.
Meinhart’s
affidavit stated, in part, as follows:
3.
Based upon my training, knowledge and
experience as a licensed and actively
practicing attorney in the Louisville,
Kentucky area, I am knowledgeable about
the standard of practice and standard
of care in this geographic region for a
non-executor non-trustee attorney who
assists an executor-client with the
administration of an estate.
. . .
6.
On or about May 24, 1999, the Court
removed George Michael Marlow as
Executor over Mary K. Marlow’s estate
and appointed me Public Administrator
is his place. When I assumed
responsibility for the handling of the
estate, I spoke with attorney Ken
Connelly about the circumstances
involving the estate and reviewed the
underlying file. I am familiar with
the facts concerning Mr. Connelly’s
handling of the estate and of Mr.
Marlow’s theft of the estate assets.
7.
Based upon my conversations with Mr.
Connelly, my conversations with the
Commonwealth Attorney (who criminally
prosecuted Mr. Marlow), my knowledge of
the situation gained from my own
handling of the estate, my legal
education, my training and my
experience in handling estates, it is
my opinion that Mr. Connelly did not
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deviate from the requisite standard of
care in assisting Mr. Marlow administer
the estate. It is also my opinion that
Mr. Connelly did not breach any duty
that may have been owed to Gregory
Marlow, who is the Plaintiff and an
heir of the estate. It is my
professional opinion that Mr. Connelly
took all actions that were reasonably
appropriate to take in the situation
and did not commit legal malpractice.
8.
The record reflects that Mr. Connelly
was not a co-executor or trustee of the
estate and was not a co-signor on the
estate bank account. His role was
limited to providing Mr. Marlow, the
executor, with assistance and guidance
in handling the estate paperwork and
filings. Mr. Connelly had no control
over the assets of the estate bank
account, was not involved in the
issuance of checks from the estate bank
account, and had no duty to supervise
the issuance of said checks by Mr.
Marlow.
Greg filed a response to Connelly’s motion for summary
judgment which failed to refute the claims made in Meinhart’s
affidavit.
To defeat a properly supported motion for summary
judgment, the non-moving party must present “at least some
affirmative evidence showing that there is a genuine issue of
material fact for trial.” 18
Greg having failed to do so,
Connelly was entitled to summary judgment as a matter of law.
Accordingly, while we do so for different grounds, we
affirm the Jefferson Circuit Court’s summary judgment.
18
Steelvest, 807 S.W.2d at 480.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory Marlow, Pro Se
Eddyville, Kentucky
Edward H. Stopher
Raymond G. Smith
Tiara B. Sliverblatt
Louisville, Kentucky
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