BURTON (BOBBY E.) VS. HELMERS (JOHN H.), ET AL.
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RENDERED: NOVEMBER 20, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001470-MR
BOBBY E. BURTON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 07-CI-005002
JOHN H. HELMERS, JR.;
LELAND R. HOWARD, II;
AND HELMERS DEMUTH
& WALTON, PLC
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, MOORE, AND VANMETER, JUDGES.
VANMETER, JUDGE: Bobby E. Burton (Burton) appeals pro se from an order of
the Jefferson Circuit Court granting appellees’ motion for summary judgment. For
the following reasons, we affirm.
Burton filed malpractice claims against a succession of attorneys who
represented him in a divorce action. Three of the original defendants previously
were granted summary judgment. After summary judgment was granted to the
remaining three defendants, John H. Helmers, Jr., Leland R. Howard, II, and
Helmers Demuth & Walton, PLC (collectively referred to hereinafter as appellees),
this appeal followed.
Burton alleged that appellees committed malpractice in two instances:
(1) by failing to move to set aside an agreed order, allegedly executed without
Burton’s authorization by a prior attorney, which nullified a marital settlement
agreement between Burton and his former spouse and (2) by failing either to file a
post-judgment qualified domestic relations order (QDRO) or to object to the
QDRO submitted by opposing counsel.
With respect to the agreed order, its enforceability was resolved by a
panel of this court in September 2004.1 At that time, the trial court’s order denying
Burton’s motion to set aside the agreed order was affirmed. Thus, the statute of
limitations for any malpractice claim relating to the enforceability of the agreed
order began to run upon entry of this court’s decision in 2004. Pursuant to KRS2
413.245, the statute of limitations for a legal malpractice action is one year.3 As
1
Appeal No. 2003-CA-000812 and Cross-Appeal No. 2003-CA-000942 (September 17, 2004).
2
Kentucky Revised Statutes.
“KRS 413.245 provides that actions for professional malpractice be brought within one year
from the date of occurrence or from the date that the cause of action was, or reasonably should
have been, discovered by the party so injured.” Conway v. Huff, 644 S.W.2d 333, 334 (Ky.
1982).
3
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Burton did not file the present malpractice claim relating to the agreed order until
2007, the trial court correctly noted that Burton’s claim is barred by the one-year
statute of limitations.
With respect to the QDRO claim, the trial court ultimately granted
appellees’ motion for summary judgment as a result of Burton’s failure to retain
and disclose expert testimony, as previously ordered by the court. The court
determined that expert testimony was necessary because the QDRO issues were
highly technical with respect to liability and damages, and were not “so apparent
that a layperson with general knowledge would have no difficulty recognizing it.”
Stephens v. Denison, 150 S.W.3d 80, 82 (Ky.App. 2004). The court allowed
Burton 45 days to retain and disclose expert testimony and to otherwise comply
with CR4 26.02, even though the deadline for disclosing an expert had passed.
After Burton failed to do so, the court granted appellees’ motion for summary
judgment as a matter of law.
In order for summary judgment to have been properly granted, “[t]he
circuit court must have found (1) that there was no genuine issue of material fact,
and (2) that appellee was entitled to judgment as a matter of law.” Sexton v.
Taylor County, 692 S.W.2d 808, 809-10 (Ky.App. 1985). “A ‘trial court’s ruling
with regard to the necessity of an expert witness [is] within the court’s sound
discretion.’” Nalley v. Banis, 240 S.W.3d 658, 661 (Ky.App. 2007) (quoting
Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 681 (Ky. 2005)). Absent
4
Kentucky Rules of Civil Procedure.
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an abuse of discretion, we will not disturb the trial court’s ruling. See Baptist
Healthcare Sys. Inc., 177 S.W.3d at 680-81.
On appeal, Burton argues that the trial court abused its discretion by
requiring expert testimony to prove his claim of legal malpractice.5 Here, the trial
court articulated its concerns about a jury’s ability to determine whether liability
exists, and then to calculate any alleged damages, without the assistance of expert
testimony. In particular, the court reasoned that in order to determine whether
appellees’ action or inaction fell below the requisite standard of care, a jury would
need to understand the components of a QDRO and whether appellees’ failure to
file a QDRO and/or object to components of opposing counsel’s QDRO was
incorrect or prejudicial to Burton. If a jury did find liability, it would then need to
compute the damages allegedly flowing therefrom.
Since a QDRO directs the division of pension and retirement benefits,
a computation of the value received, versus what Burton would have received but
for appellees’ alleged negligence, would be necessary. The court determined that
this calculation would not be simple as, at a minimum, accounting methods for
present and future worth would be needed. For that reason, the court held that
expert testimony was required. This ruling was not an abuse of its discretion. 6
5
We find it imperative to note that Burton maintains not that the court erred by granting
summary judgment based solely on his failure to meet the allotted 45-day deadline to retain and
disclose expert testimony, but that he does not need an expert to defeat summary judgment or for
his case in chief at trial. “Accordingly, cases such as Baptist Healthcare Sys. Inc., 177 S.W.3d
676, Poe v. Rice, 706 S.W.2d 5 (Ky.App. 1986), and Ward v. Housman, 809 S.W.2d 717
(Ky.App. 1991) are inapplicable[.]” Nalley, 240 S.W.3d at 661.
6
In a similar vein, Burton claims that two prior appeals, Appeal No. 2005-CA-000489 and
Appeal No. 2005-CA-001288, toll the statute of limitations with respect to the QDRO claim.
This argument is misplaced. The trial court did not bar the QDRO claim on statute of limitations
-4-
See Nalley, 240 S.W.3d at 661; Baptist Healthcare Sys. Inc., 177 S.W.3d at 68081.
Further, Burton claims that the court abused its discretion in handling
his pro se pleadings generally, and his request for admissions in particular.7 We
disagree.
The court stayed discovery following Burton’s initial request for
admissions, as motions to dismiss other defendants were pending and the scope of
discovery remained unclear. Appellees timely answered Burton’s request for
admissions once the stay was lifted, but Burton moved for a hearing to address the
matter. At the scheduled hearing, the court decided instead to hear the pending
motions for summary judgment, since the trial date was fast-approaching. In the
subsequent opinion granting appellees’ motion for summary judgment, the court
noted “[t]his opinion will dispose of all pending motions[,]” presumably including
those pertaining to the request for admissions.
The court’s stay of discovery and allowance of time for appellees to
respond to Burton’s request for admissions did not constitute an abuse of the
court’s discretion pursuant to CR 36.01(2), which “clearly vests the trial judge with
discretion to shorten or lengthen the time limit for responding to requests for
admission.” Berrier v. Bizer, 57 S.W.3d 271, 278 (Ky. 2001). Burton also claims
grounds; ultimately, the court granted appellees’ motion for summary judgment because Burton
failed to retain and disclose expert testimony as ordered.
7
We note that Burton failed to cite to the record, or to provide citations of authority, as required
by CR 76.12, in support of his claim that the court generally abused its discretion in handling his
pro se pleadings.
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that the court failed to hear and/or rule on his motion for partial summary
judgment; however, the court’s order clearly disposed of all pending motions.
Finally, Burton asserts that the court erred by denying his motion to
strike the affidavit of opposing counsel, who essentially opined that appellees did
not deviate from the standard of care expected of a reasonable attorney. Burton
argues further that the court should have scheduled a hearing to address his motion,
rather than disposing of the motion in the summary judgment.
Apparently the affidavit was filed in compliance with CR 56.03,
which expressly allows affidavits to be considered in connection with a motion for
summary judgment. Discretion to strike “from any pleading any insufficient
defense or any sham, redundant, immaterial, impertinent or scandalous matter” is
conferred upon the court by CR 12.06. However, Burton has neither shown that he
preserved this issue below, nor that legal authority supports his claim that he was
entitled to a hearing on his motion to strike. Thus, this issue is not properly before
us for review.8
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
8
Moreover, the record does not reflect that the court in any way relied upon the affidavit of
opposing counsel in ruling on the parties’ motions for summary judgment. Thus, even if the
court did err by denying Burton’s motion to strike, such error was harmless.
-6-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Bobby E. Burton, Pro se
Louisville, Kentucky
James P. Grohmann
Louisville, Kentucky
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