CONNIE MARSHALL v. ARTHUR SAMUEL
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RENDERED:
APRIL 28, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000147-MR
CONNIE MARSHALL
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 03-CI-000550
v.
ARTHUR SAMUEL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HENRY, AND VANMETER, JUDGES.
VANMETER, JUDGE:
Connie Marshall appeals pro se from a summary
judgment entered by the Jefferson Circuit Court in an attorney
malpractice action against appellee Arthur Samuel.
For the
reasons stated hereafter, we affirm.
It is undisputed that Marshall’s daughter was unable
to consistently provide proper care for her three young
children, and that the children moved back and forth between
their mother’s home, Marshall’s home and foster care over a
period of several years.
The children were committed to the
custody of the Cabinet for Families and Children (the Cabinet)
in September 1997, and parental rights eventually were
terminated.
Meanwhile, Marshall’s petition seeking permanent
custody was dismissed in January 2002 on the ground that she
lacked standing because she was not the children’s de facto
custodian.
Samuel then withdrew from his representation of
Marshall.
Marshall filed this action in January 2003, asserting
that Samuel committed legal malpractice while representing her.
Samuel filed an answer denying the allegations and raising the
defense of limitations, and he subsequently sought a judgment on
the pleadings.
Marshall in turn sought a default judgment and
damages against Samuel.
After finding that Marshall’s complaint
was not timely filed, the trial court granted a judgment on the
pleadings for Samuel.
On appeal, this court disagreed as to the
issue of timeliness, and the matter was vacated and remanded to
the trial court for further proceedings.
On remand, Marshall sought summary judgment, default
judgment, and damages against Samuel based on the following
allegations:
1. The Defendant, Arthur Samuels1 did not
file an answer to the Plaintiff’s
Complaint. To merely state that he
denies the allegations is not a
sufficient answer to the Complaint filed
1
Throughout the proceedings, Samuel’s surname was misspelled by Marshall as
“Samuels.”
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January 21, 2003. Arthur’s 20 days to
file an answer to the complaint ended on
February 12, 2003, therefore the
Plaintiff is entitled to Default
Judgment.
2. Arthur did not abide by rule KRS 413.40
[sic] which is a rule that he has cited
as a defense.
3. Violation of SCR.130-1.3 Failure to act
with reasonable diligence and promptness
in representing a client.
4. Violation of SCR3.130-1.4(a) Failure to
keep a client reasonably informed about
the status of a matter. Arthur Samuels
did not inform Connie Marshall that he
would not be in court to represent her
until the day after the date we were
suppose[d] to be in court, when Connie
Marshall went to court Arthur Samuels was
no where to be found.
5. Conduct involving dishonesty, fraud,
deceit, dual representation and
misrepresentation. Arthur Samuel
represented Connie Marshall and her
daughter at the same time and we were in
opposition of one another at this time[]
(see exhibits in the case regarding
dishonesty, fraud, deceit, dual
representation and misrepresentation).
6. Violation SCR3.130-1.5(a) accepting a fee
from a client and thereafter failing to
render legal services justifying the fee.
Arthur Samuels did not provide an
itemized list of his charges and did not
immediately file for custody of Connie
Marshall’s grandchildren.
7. Arthur Samuels did not respond to the
Motion for Summary Judgment in the Court
of Appeals.
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8. Arthur Samuels did not respond to the
Motion to Supplement the Record in the
Court of Appeals.
Samuel in turn filed his own motion for summary
judgment, responding to Marshall’s motion as follows:
1.
The Plaintiff states in her Motion for
Summary Judgment that no Answer was
filed. An Answer was filed as the record
will show.
2.
The Plaintiff states KRS 413.40 [sic] was
not followed. KRS 413.40 [sic] deals
with continual claim of land after
fifteen years of adverse possession.
3.
The Plaintiff states that reasonable
diligence and promptness of
representation did not occur in the
custody case . . . . After the Petition
for Permanent Custody was filed, the
Cabinet . . . filed a Motion to Dismiss
on or about August 14, 2001. (See
Affidavit, Ex. M) In the latter part of
September, 2001 an Affidavit was filed in
support of the Petition and a request for
visitation. On or about October 17, 2001
a Witness and Exhibit List was filed on
behalf of the Petitioner. (See
Affidavit, Ex. M.) On or about November
7, 2001 a Memorandum in support of the
Petition was filed. On or about November
15, 2001 the Cabinet filed its Memorandum
in support of its Motion to Dismiss.
(See Affidavit, Ex. M) On Motion Hour,
January 14, 2002 a motion was presented
to the Court for visitation. The Court
at that time indicated it did not wish to
make any rulings in the case until it had
addressed the Cabinet’s Motion to
Dismiss. (See Affidavit, Ex. M) The
Court entered an Order dismissing the
Petition for Permanent Custody on January
18, 2002. The Plaintiff was notified by
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certified mail on January 23, 2002.
Affidavit, Ex. M)
(See
4.
On the Motion Hour for visitation, the
Court informed me that it would not
consider any motions until it ruled on
the Cabinet’s Motion to Dismiss. Because
of a hearing in Federal Court before the
Motion Hour, I went to the court about
fifteen minutes before Motion Hour to
tell the clerk to hold my motion until
the end of the docket because of the
Federal Court hearing. Judge Bowles was
on the bench and he told me he was not
going to rule on the Motion for the
reason stated above and it was not
necessary to come back. The Motion was
to set a date for a hearing on
visitation. (See Affidavit, pp 4-5)
5.
At one time the Cabinet brought a nonsupport action against Plaintiff’s
daughter in the Plaintiff’s name since at
that time Plaintiff had custody of her
daughter’s children. At no time does the
record indicate that I represented
Plaintiff and her daughter at the same
time. (See Affidavit, pp. 4-7 and Exs.
A-L)
6.
Legal services were provided as indicated
by the record. As to the fees, receipts
were always given and the fee was stated
before services were rendered. (See
Affidavit, p. 5)
7.
The Motion for Summary Judgment in the
Court of Appeals was inappropriate and
required no response.
8.
The Motion to Supplement The Record in
the Court of Appeals did not require a
response.
Samuel also filed a lengthy affidavit which addressed Marshall’s
complaints in specific detail.
Marshall responded but did not
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disclose any additional substantive facts for the court’s
consideration.
The trial court denied Marshall’s motion and
granted Samuel’s motion for summary judgment.
This appeal
followed.
On appeal, Marshall attempts to provide the court with
additional reasons that Samuel’s motion for summary judgment
should have been denied.
In her one-page Statement of Points
and Authorities, she cites to six subsections of the Kentucky
Rules of Professional Conduct,2 and she alleges that Samuel
failed to timely answer her original complaint against him.
Marshall then summarizes the underlying events in her two-page
statement of the case, asserting: that Samuel failed to timely
file a custody petition; that he failed to timely act regarding
abuse, visitation or custody issues; that he failed to attend or
to inform her that he would not attend a scheduled court
appearance regarding the pending visitation motion; that he
incurred a conflict of interest by representing both Marshall
and her daughter; and that he demonstrated willful negligence by
failing to timely reply to various court filings.
Next,
Marshall asserts in her one-page argument that:
The voice mail message (exhibit A[3])
left the day after court by Arthur Samuels
2
SCR 3.130.
3
Marshall’s transcript of the alleged recorded message, which was not
included in the record below.
-6-
on January 15, 2002, exhibit A is proof that
Arthur Samuels did not keep Connie Marshall
informed of the status of her case, as it
was left on her voice mail January 15, 2002,
the day after court. Exhibit E[4] proves
that dual representation was committed by
Arthur Samuels. The Statement of Points and
Authorities shows evidence that Arthur
Samuels did not follow the rule that he is
sworn to follow by the Kentucky Bar.
Arthur Samuels represented the
Appellant, Connie Marshall and did not mail
any information regarding the Court Order to
dismiss the Case to the Appellant, Connie
Marshall Until January 23, 2002 and withdrew
from the case the same day (see exhibit
J[5]). Also, this court agreed in their
Order Entered October 1, 2004 that Connie
Marshall’s Complaint was timely filed. The
Appellant states that Arthur Samuels did not
file an answer within the twenty days
allotted by the court and did not ask for
any additional time to file, therefore, the
Appellant filed a Default Judgment.
The Jefferson Circuit Court, Div. 12
granted Arthur Samuels Judgment on the
Pleadings and this Kentucky Court of Appeals
cited that the court erred and on October 1,
2004 remanded this case back to the
Jefferson Circuit Court, Div. 12 (Case No.
2003-CA-001412-MR) stating the following:
“The basis of a motion for a judgment
on the pleadings is to test the legal
sufficiency of a claim or defense.
City of Pioneer Village v. Bullitt Co.,
Ky., 104 S.W.3d 757 (2003). When a
party moves for a judgment on the
pleadings, he admits for the purposes
of his motion the truth of the
nonmovants’ allegations of fact and all
4
A Calendar Court Order from a prior proceeding.
5
Samuel’s letter to Marshall, which informed her of his withdrawal from her
case and provided information regarding further steps which she could take in
the custody proceeding.
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fair inferences that can flow from
those facts.
Finally, Marshall’s one-page conclusion describes her
determination to continue fighting for her right to go to court
and to seek custody of her grandchildren.
She requests this
court to award her a judgment and damages against Samuel, as
well as court costs and interest.
Although Marshall’s arguments throughout these
proceedings have been intertwined with her recitation of facts
and arguments regarding her efforts to obtain custody of her
grandchildren, the fact is that the matter now before us
pertains only to whether the trial court properly granted
summary judgment as to the malpractice claim against Samuel.
CR
56.03 provides that summary judgment shall be granted only 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.
All doubts must be resolved against the movant.6
However, if the
movant’s uncontroverted affidavits clearly disclose facts
showing the absence of a genuine issue of material fact, the
6
Gullett v. McCormick, 421 S.W.2d 352 (Ky. 1967).
-8-
opposing party must, by affidavit or otherwise, show that
evidence does in fact exist to justify a trial on the issues.7
After carefully reviewing the record of the matter now
before us, we are unable to find that there is any genuine issue
of material fact as to whether Samuel breached any duty owed to
Marshall.
First, we note that there is no merit to Marshall’s
claim that Samuel did not file a timely response below, as pages
4-5 of the circuit court record plainly show that within twenty
days8 of Marshall’s complaint, Samuel filed an answer denying the
allegations and seeking dismissal of the complaint.
Next, the record shows that Samuel’s responses to
Marshall’s claims below clearly refute the existence of any
genuine issues of material fact, and Marshall failed to counter
those responses with additional evidence to support her claims.
Samuel made specific references to the record and to his actions
to demonstrate that he filed Marshall’s complaint as soon as she
authorized him to do so, and that she remained informed of the
proceedings through personal contacts and her own appearances in
court.
Although Marshall complains that she timely appeared in
court for a scheduled visitation hearing only to learn that the
matter already had been resolved, Samuel satisfactorily
explained that the hearing in fact was intended only for
7
Continental Casualty Co. v. Belknap Hardware and Manufacturing Co., 281
S.W.2d 914 (Ky. 1955).
8
CR 12.01.
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scheduling purposes rather than as a visitation hearing, and
that the court earlier that day had advised him that no
visitation hearing would be scheduled at that time since a
custody proceeding currently was pending.
Moreover, Samuel’s
one-day delay in notifying Marshall of the court’s action
clearly did not amount to a failure to promptly communicate with
her.
Further, Samuel’s failure to respond to unauthorized
pleadings, such as Marshall’s motion requesting this court to
grant summary judgment on appeal, does not in any way justify
sanctions against him.
Finally, we are not persuaded by the
claim that Samuel improperly engaged in dual representation of
Marshall and her daughter.
Although Samuel has represented both
women at various times, Marshall has provided nothing to
contradict his showing that the various proceedings were
unrelated to one another and not violative of his ethical and
professional responsibilities.
The court’s summary judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Connie Marshall, pro se
Louisville, Kentucky
Arthur R. Samuel
Louisville, Kentucky
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