B. PATRICK, not in his individual capacity but as the Independent Executor of the will and estate of NORMA B. PATRICK deceased, Plaintiff,
PAUL K. CROLEY, Defendant.
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
Plaintiff, Casey Brock Patrick, claims that Defendant is liable for negligently preparing a defective affidavit of descent and defective deed. [R. 1 at 9]. For the reasons set forth below, the Court now holds that the motion for summary judgment regarding liability [R. 53] shall be GRANTED. The Court declines to rule on the motions for summary judgment on grounds of damages [R. 54] or statute of limitations and/or the laches doctrine [R. 55] as they are moot.
This dispute arises out of a real estate transaction in 2000 involving a property located at 403 Pine Street, Williamsburg, KY. [R. 53-2 at 2]. Norma Patrick, now deceased, was the buyer of the Pine Street property. [ Id. ]. Patrick's interest is now represented by the Plaintiff, Casey Brock Patrick, not in his individual capacity but as the Independent Executor of the will and estate of Norma Patrick. [R. 56 at 1]. Defendant, Paul Croley, was retained by a seller, Lola Douglas in this transaction to represent her interests as well as the other seller, Joie Bryant. [R. 53-2 at 2]. Croley was retained to prepare an affidavit of descent for Ms. Douglas' sister, Eliza Tolliver, and to draft a deed concerning the anticipated conveyance of the property for $35, 000. [R. 53-2 at 2]. Croley drafted the documents and expressly dislaimed "[t]his instrument prepared without title examination" on the face of the deed. [ Id. ].
On January 6, 2000, Bryant signed the deed and on January 10, 2001 Douglas signed the deed and served as affiant for the affidavit of descent. [ Id. ]. Attorney William Cox prepared a Memorandum of Abstract in preparation for the transaction. [R. 53-2 at 2-3]. A title opinion, dated January 22, 2001 approved the title for purposes of Plaintiff's loan with Community Trust Bank. [R. 53-2 at 3; R. 53-5]. On February 1, 2001, Norma Patrick executed a warranty deed for the Pine Street property and signed a mortgage for said property which also had been prepared by Attorney William Cox. [R.53-2; R. 53-6].
Ten years later, on June 28, 2011, Ms. Patrick entered into a real estate contract to sell the Pine Street property to Marie Cornelius for $80, 000. [R. 21 at 8, Exhibit E]. After entering into this sales contract, a title examination was conducted where it was discovered that issues existed with the property's title. [R. 53-2 at 4]. Ms. Patrick alleges that a defective affidavit and deed had been prepared by Mr. Croley. [R. 21 at 8]. Marie Cornelius cancelled the land contract on the basis of this title opinion. This dispute specifically revolves around the allegedly defective affidavit of descent that Croley prepared on behalf of the original sellers.
Plaintiff alleges that Defendant is liable pursuant to Section 413.245, Actions for professional service malpractice, of the Kentucky Revised Statutes. Now pending before the Court are three summary judgment motions filed by the Plaintiff contesting liability, damages and, finally, the statute of limitations and laches doctrines.
When sitting in diversity, a federal court applies the substantive law of the state in which it sits. Hayes v. Equitable Energy Resourcs Co., 266 F.3d 560, 566 (6th Cir. 2001) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). However, when considering the issue of summary judgment, a federal court applies the standards of Fed.R.Civ.P. 56 rather than "Kentucky's summary judgment standard as expressed in Steelvest, Inc. v. Scansteel Serv. Ctr. Inc., 807 S.W.2d 476 (Ky. 1991)." Gafford v. Gen. Elec. Co. 997 F.2d 150, 165 (6th Cir. 1993). Under Rule 56, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. A fact's materiality is determined by the substantive law, and a dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
In deciding a motion for summary judgment, the Court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The burden is initially on the moving party to inform "the district court of the basis of its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of a material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may make this showing by demonstrating the absence of evidence to support one of the essential elements of the nonmoving party's claim. Id. at 322-25. Once this burden is met, the nonmoving party, "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56. Further, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Instead, "the non-moving party has an affirmative duty to direct the Court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact." In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).
Mr. Croley argues in his Reply to Plaintiff's Response to Defendant's Motions for Summary Judgment [R. 57] that the Plaintiff's Response to his Motion for Summary Judgment [R. 53] is inadequate. [R. 57]. As stated in the above procedural explanation of the Summary Judgment standard:
the nonmoving party, "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56. Further, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Instead, "the non-moving party has an affirmative duty to direct the Court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact." In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).
In this case, Patrick's total response [R. 56] to Croley's three Motions for Summary Judgment [R. 53, 54, 55] was 14 pages long. As Croley points out, the first seven of these 14 pages were nearly word for word recitations of Patrick's Complaint and Amended Complaint. [R. 57, 56, 12, 21]. Patrick responds to the arguments presented in Defendant's Motion for Summary Judgment on Liability grounds [R. 53] with only one, ten line, paragraph. [R. 56 at 9, Para. 16]. While length of response is certainly not determinative of its quality, Patrick does have a duty to put forth specific facts showing that genuine issues exist for trial. Fed.R.Civ.P. 56.
In the one paragraph addressing the liability issue [R. 56 at 9, Para. 16] Patrick cites only two cases in support of his position. The rule explicated in these two citations was preemptively addressed by Croley in his Motion for Summary Judgment on the issue of Liability [R. 53]. The remaining five lines of the response in this paragraph are argument not supported by evidence in the record.
The Court need not rule on the sufficiency of this response as it is a matter of law that controls here. As explained next, Croley owed no duty to Patrick and, thus, cannot be liable for legal negligence.
In Kentucky, the Plaintiff has the burden of proving the following elements in a ...