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Estate of Mabel C. Moloney Appellant v. John D'arcy Becker Appellee

April 19, 2013

ESTATE OF MABEL C. MOLONEY APPELLANT
v.
JOHN D'ARCY BECKER APPELLEE



APPEAL FROM BRACKEN CIRCUIT COURT HONORABLE LEWIS D. NICHOLLS, JUDGE ACTION NO. 04-CI-00091

The opinion of the court was delivered by: Vanmeter, Judge:

RENDERED: APRIL 19, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING

BEFORE: NICKELL, TAYLOR, AND VANMETER, JUDGES.

The Estate of Mabel C. Moloney ("Estate") appeals from the Bracken Circuit Court judgment, as well as its order denying the Estate's motion for a judgment notwithstanding the verdict (JNOV), resulting in the dismissal of its complaint alleging negligence against John Becker. For the following reasons, we affirm.

John is a financial planner who performed services for Mabel Moloney. Though not a licensed attorney, in 1995, John prepared a Qualified Personal Residence Trust ("QPRT") for a 181-acre farm on which Mabel resided. Although the QPRT was prepared, title to the farm was apparently never transferred to the trust. Mabel subsequently moved her assets to Fifth Third Bank, and her financial relationship with John ended. In 1999, Fifth Third advised Mabel, Ann Thomas, Mabel's daughter and power of attorney, and Ann's grandson, Lytle, who worked at the bank, that the QPRT was defective. Ann and Lytle claimed to further consult with a tax and estate planning attorney, who informed them that the QPRT was indeed defective and could not be cured.

Mabel died in 2003. Since the QPRT was defective, the farm was included in Mabel's estate and subjected to federal estate taxes totaling $142,901. The Estate filed the underlying action against John alleging he was negligent in setting up the defective QPRT causing damages equaling the amount paid in federal estate taxes on the farm. The Estate moved for a directed verdict, which the trial court denied. Following the presentation of all the evidence, the jury returned a verdict finding John to have violated his duty of care owed to Mabel, but determined that his actions did not cause injury to the Estate. The Estate filed for a JNOV, which the trial court denied. This appeal followed.

On appeal, the Estate argues the trial court erred by denying its motions for a directed verdict and JNOV because the evidence demonstrated that John engaged in the unauthorized practice of law, prohibited by KRS*fn1 524.130, and thus, he was negligent per se. We disagree.

The standard of review regarding a motion for a directed verdict or JNOV has been described as a difficult one for an appellant to meet. Peters v. Wooten, 297 S.W.3d 55, 65 (Ky. App. 2009). Our court in Taylor v. Kennedy, 700 S.W.2d 415 (Ky. App. 1985) described it as follows:

In ruling on either a motion for a directed verdict or a motion for a [JNOV], a trial court is under a duty to consider the evidence in the strongest possible light in favor of the party opposing the motion. Furthermore, it is required to give the opposing party the advantage of every fair and reasonable inference which can be drawn from the evidence. And, it is precluded from entering either a directed verdict or [JNOV] unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.

Id. at 416 (citation omitted). We may not disturb the ruling unless the decision is clearly erroneous. Peters, 297 S.W.3d at 65 (citation omitted). As such, a denial of a directed verdict or JNOV "should only be reversed on appeal when it is shown that the verdict was palpably or flagrantly against the evidence such that it indicates the jury reached the verdict as a result of passion or prejudice." Id. (citation omitted).

Here, since the jury found John's actions to have violated the standard of care, whether he engaged in the unauthorized practice of law is immaterial. A claim of negligence per se merely substitutes the common law standard of care with a statutory standard of care. Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. App. 2008) (quoting Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921, 926-27 (Ky. 1994)). Whether John violated his common law standard of care or the statutorily-imposed standard of care found in KRS 524.130 is immaterial since "the violation 'must be a substantial factor in causing the result.'" Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999) (quoting Britton v. Wooten, 817 S.W.2d 443, 447 (Ky. 1991)). The issue in the underlying case is whether substantial evidence supported ...


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