GEORGE R. O'BRYAN V. DWIGHT V. CAVE
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RENDERED : SEPTEMBER 21, 2006
-TQ-13, E,P,
,SixprEme Courf of R
2005-SC-000118-DG & 2004-SC-000
GEORGE R . O'BRYAN
V.
APPELLANT/CROSS-APPELLEE
ON REVIEW FROM COURT OF APPEALS
NO. 2002-CA-2601-MR
JEFFERSON CIRCUIT COURT, NO. 00-CI-007402
DWIGHT V. CAVE
APPELLEE/CROSS-APPELLANT
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
Appellant, George R. O'Bryan, appeals from a judgment of the Court of
Appeals, which reversed the judgment of the Jefferson Circuit Court and
remanded the summary judgment entered therein . The Jefferson Circuit Court
had held, inter alia, that beneficiaries of a will, prepared by O'Bryan at his client's
request, failed to offer any proof to refute the defendant attorney's testimony that
he advised the client of the possibility that his surviving wife may renounce the
will . Finding that summary judgment was appropriate in this instance and for the
reasons set forth herein, we reverse the judgment of the Court of Appeals and
reinstate the judgment of the Jefferson Circuit Court with regard to the motion for
summary judgment.
FACTS
In July 1997, Claude Cave ("Claude") and his wife of fifteen years, Doris,
met with Appellant, George R. O'Bryan, an attorney, in regard to a will and a
deed. This July meeting was the first of only two meetings between Claude and
O'Bryan . During the initial meeting, Claude requested that O'Bryan prepare a will
and a deed, which would give Doris a joint interest with the right of survivorship in
Claude's home in Louisville, Kentucky. O'Bryan contends that he advised
Claude that execution of the deed with the right of survivorship would cause the
property to pass directly to Doris without having to go through the will, and thus,
Doris could later renounce her interest in the will and take other interests there
under pursuant to her dower rights. According to O'Bryan's testimony, Claude
acknowledged this advice, but insisted that O'Bryan go ahead and draw both the
will and deed because he wanted there to be no question concerning Doris's
ownership of the home when he died .
A month later, on August 12, 1997, Claude returned to O'Bryan's office
and executed the deed and will prepared by O'Bryan at Claude's request . On its
face, the deed set forth Claude's "love and affection" for Doris as consideration
for the survivorship interest in his home . Claude also executed the will, which
devised and bequeathed all of his real estate to Doris, but the residuary of his
estate to his sisters, Dorothy Ming, Della Burress and Dora Landrum, and his
nephews, Leroy Kilby and the Appellee, Dwight Cave, "to be divided equally
among them, to share and share alike."
Claude died in August 1999, and on August 30, 1999, the will was
submitted to probate . Doris, however, on January 28, 2000, executed and
recorded a release under KRS 392 .080, renouncing her interest in Claude's will
and claiming her dower interest. O'Bryan claims he never represented Doris, nor
advised her of her renunciation right. O'Bryan did, however, prepare the
renunciation.
On October 10, 2002, Cave filed a legal malpractice suit against O'Bryan,
alleging that O'Bryan was negligent in drafting the will and deed in that the
conveyance created the opportunity to thwart the stated intention of the will . In
support of his complaint, Cave asserted that O'Bryan failed to advise Claude of
Doris's right to renounce the will and the effect of the survivorship deed, the
results of which Cave claims deprived him of approximately $14,000.
O'Bryan then filed a motion for summary judgment on July 17, 2002,
arguing that (1) the record contained no evidence of any failure on his part to
advise Claude of Doris's possible renunciation rights, and (2) that Cave provided
no expert testimony that O'Bryan breached any standard of care . In fact, in
granting O'Bryan's motion for summary judgment, the Jefferson Circuit Court
found, in pertinent part, that Cave presented no evidence to refute O'Bryan's
assertion that he gave such advice but it was ignored . Cave's motion to set
aside the summary judgment was denied by the trial court, and he subsequently
appealed to the Court of Appeals.
In its opinion, the Court of Appeals, believing that the facts of the
transactions themselves provided sufficient circumstantial evidence to create a
material issue of fact as to whether the appropriate advice was given, reversed
the circuit court, despite the fact that the Cave was unable to produce any direct
evidence in support of his claim that O'Bryan did not advise Claude of the fact
that Doris could renounce the will . We granted O'Bryan's motion for
discretionary review to address his claims of error by the Court of Appeals . We
now reverse the Court of Appeals .
ANALYSIS
Although O'Bryan alleges several errors on the part of the Court of
Appeals, we find only one dispositive of this case, viz. : whether summary
judgment was appropriate in this instance . We find it was.
The standard for summary judgments in Kentucky is well-known.
Summary judgment is appropriate when "'as a matter of law, it appears that it
would be impossible for the respondent to produce evidence at the trial
warranting a judgment in his favor and against the movant."' Steelvest, Inc . v.
Scansteel Service Center. Inc . , 807 S.W.2d 476, 483 (Ky. 1991) (quoting
Paintsville Hospital Co. v. Rose , 683 S .W.2d 255, 256 (Ky. 1985)) . In using the
word "impossible" in Steelvest , we have acknowledged that it "is used in a
practical sense, not in an absolute sense." Perkins v. Hausladen , 828 S .W.2d
652, 654 (Ky. 1992) . Furthermore, the party opposing summary judgment
"cannot rely on the hope that the trier of fact will disbelieve the movant's denial of
a disputed fact, but must present affirmative evidence in order to defeat a
properly supported motion for summary judgment." Steelvest , 807 S.W.2d at 481
(internal quotations omitted) (citation omitted) .
This Court has noted that if litigants do indeed have valid issues to try, we
will not deny them the right of trial merely for expediency and efficiency. Id. at
483. However, this Court has also recognized that "the original purpose of
summary judgment procedure is to expedite the disposition of cases and to avoid
unnecessary trials where no genuine issues of material fact are raised." Id. at
482 (emphasis added) (citations omitted) . We acknowledge that the burden is on
the movant to convince the court, by evidence of record, of the absence of any
genuine issues of material fact.
In this case, Cave's only support for his complaint before the trial court
was the mere supposition, based upon the failed estate plan due to Doris's
renunciation, that O'Bryan did not advise Claude of the possibility that Doris
could renounce her interest in the will under KRS 392.080 . Yet, O'Bryan testified
that he did advise Claude of the risks involved in creating a deed with joint
survivorship in light of Claude's bequest to Doris and others, including Cave, in
his will . O'Bryan has aptly noted that, other than this supposition, Cave has not
produced any evidence to otherwise support his claim of negligence .
In reversing the circuit court's granting of the summary judgment, the
Court of Appeals obviously believed that all that was necessary to create an
issue of material fact was simply the notion that no attorney would have drafted
the deed, inconsistent as it was with the plan under the will once Doris effected
the renunciation, without first consulting his client . However, the fact that an
attorney drafts a deed that becomes inconsistent with a will is as much evidence
that the client was informed but opted to forego the advice because of the priority
of his own desires, as it is that he was not so informed . To conclude otherwise
would be sheer speculation and, without other evidence, would be insufficient.
This Court has often stated that "speculation and supposition are insufficient to
justify a submission of a case to the jury, and that the question should be taken
from the jury when the evidence is so unsatisfactory as to require a resort to
surmise and speculation ." Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W .2d
953, 955 (Ky. 1951) .
Cave's testimony before the trial court indicated that not only was he not
present when O'Bryan consulted with Claude, but that he also did not know the
substance of the conversation . Indeed, during oral argument, Cave insisted that
the will spoke for itself as the only evidence needed to overcome O'Bryan's
motion for summary judgment.
Furthermore, we note the Court of Appeals was likewise pressed to find
any evidence in the record to support Cave's claims . The court opined, for
example, that Cave would have an expert witness testify as to the standard of
care owed by attorneys in estate planning, the consequences of joint ownership
of real property with the right of survivorship, and the risk that a spouse may
renounce a will. Further, the court states that O'Bryan "seems to argue that he
only prepared the documents" or was "merely the scrivener of documents who
acted at the direction of a client ." However, none of these examples could be
considered in support of Cave's claims of negligence or in opposing a motion for
summary judgment, as the former refers to the appropriate legal standard without
evidence of a breach of such duty, while the latter merely refers to O'Bryan's
testimony without acknowledgment of the fact that he testified he gave the
advice. Moreover, the Court of Appeals agrees that the estate plan expressed in
Claude's will was ultimately frustrated by Doris.
Finally, the Court of Appeals notes that Cave was never given the
opportunity to depose Doris. However, the record reveals that O'Bryan offered to
give Cave's counsel Doris's address. Foregoing the opportunity to take a
deposition of a witness could hardly be considered to support an argument
opposing a motion for summary judgment.
Simply stated, O'Bryan met his burden of proving the absence of genuine
issues of material fact, despite the Court of Appeals' characterization of
O'Bryan's proof as "self-serving ." Cave, on the other hand, failed to produce any
evidence, except speculation, upon which the trier of fact might reasonably find
judgment in his favor.
CONCLUSION
Accordingly, and for the reasons expressed herein, we reverse the
judgment of the Court of Appeals and hold that summary judgment was
appropriate in this case .
All concur .
COUNSEL FOR APPELLANT :
Eugene L. Mosley
Mosley, Sauer & Townes, PLLC
One Riverfront Plaza
401 W. Main St., Ste. 1900
Louisville, Kentucky 40202
Michael Thomas Underwood
Mosley, Sauer & Townes, PLLC
One Riverfront Plaza
401 W. Main St., Ste . 1900
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE:
David S . Sprawls
UAW-Ford Legal Services Plan
1939 Goldsmith Ln., Ste . 117
Louisville, Kentucky 40218-2006
'Melissa L. Rodden
UAW-Ford Legal Services Plan
1939 Goldsmith Ln., Ste. 117
Louisville, Kentucky 40218-2006
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