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Pete v. Anderson

Supreme Court of Kentucky

November 21, 2013

Mickiel PETE, et al., Appellants
Michael ANDERSON, Jr., et al., Appellees.

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[Copyrighted Material Omitted]

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Scott Allen Davidson, James David Ballinger, Louisville, for Appellants.

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David Bradley Mour, Zachary Leroy Taylor, Louisville, for Appellees.


ABRAMSON, Justice.

Michael Anderson, Jr. and Malik Anderson filed a professional negligence action against attorney Mickiel Pete, the law firm of Cochran, Cherry, Givens, Smith, Sistrunk & Sams, P.C., and attorney Dennis Burke (collectively " Pete" ), claiming the attorneys were negligent in executing their professional duties following the death of the Andersons' father. The Jefferson Circuit Court granted Pete's motion for summary judgment on the grounds that Michael, Jr. and Malik, minors at the time of their father's death, lacked standing to sue for professional negligence because they did not have an attorney-client relationship with Pete. The Court of Appeals reversed, holding that summary judgment was inappropriate because there was a genuine issue of material fact as to the existence of the alleged attorney-client relationship. The Court of Appeals further held that, in any event, Pete owed professional duties to Michael, Jr. and Malik, who were statutorily-identified beneficiaries of the underlying wrongful death claim. For the reasons discussed fully herein, we affirm.


On October 17, 2001, Michael Anderson was killed when the van that he was driving struck a retaining wall, partially ejecting Anderson from the vehicle. The van, which was owned by Anderson's employer, was equipped with a pedestal-style driver's seat with a locking mechanism that allowed the operator to position the seat. This mechanism was apparently malfunctioning on the day of the fatal accident.

Anderson was survived by his wife Elizabeth and four children, including two minor sons, Michael, Jr. and Malik. Attorney Mickiel Pete was retained to pursue an action against Dixie Warehouse Services, LLC (" Dixie" ), the company charged with maintaining the van involved in Anderson's accident. Pete filed a wrongful death claim, naming Elizabeth as personal representative of Anderson's estate (" the estate" ), and also filed a loss of consortium claim on Elizabeth's behalf, but did not file a loss of parental consortium claim on behalf of Anderson's children. The Jefferson Circuit Court eventually dismissed the suit after Dixie successfully excluded two of the plaintiffs' expert witnesses on Daubert grounds, leaving no evidence of a causal connection between Dixie's conduct and Anderson's death.[1] Pete did not appeal the trial court's decision.[2]

Two years later, Malik, by and through Elizabeth, and Michael, Jr., now of the age of majority, filed a professional negligence action against Pete alleging negligence, gross negligence and breach of fiduciary duty, as well as negligent or fraudulent misrepresentations. Pete moved for summary judgment arguing that there was no attorney-client relationship between Pete and the children, and that any other claims of the estate were barred by the statute of limitations. The trial court granted Pete's motion, finding that Michael, Jr. and Malik were not in privity with Pete, and thus lacked standing to sue for professional negligence.

In a unanimous decision reversing the trial court, the Court of Appeals found that there was a material factual issue in dispute,

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namely, whether Malik and Michael, Jr. were actually represented by Pete, or were led to believe that they were being represented by him. In addition to finding that summary judgment was premature, the Court of Appeals held that even if there was no privity, the children were owed professional duties because they were the intended beneficiaries of the underlying wrongful death action. We accepted discretionary review and now affirm the Court of Appeals.


I. The Trial Court Erred in Granting Summary Judgment Because There Are Issues of Material Fact Regarding the Attorney-Client Relationship.

Kentucky Revised Statute (" KRS" ) 413.245 provides that an action for professional malpractice " shall be brought within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured." Elizabeth failed to bring a malpractice action against Pete on her own behalf within the one-year statute of limitations. However, KRS 413.245 further provides: " Time shall not commence against a party under legal disability until removal of his disability." Michael, Jr. and Malik were minors when the alleged malpractice occurred. Therefore, the tolling provision of KRS 413.245 would allow them to timely bring any claim against Pete within one year of achieving the age of majority. Of course, a party may pursue a malpractice action against an attorney only if that party has standing to do so by virtue of being owed professional duties by the attorney. Marrs v. Kelly, 95 S.W.3d 856 (Ky.2003).

Pete argues that the trial court correctly granted summary judgment after determining that Michael, Jr. and Malik, having no attorney-client relationship with Pete, lacked standing to bring the professional malpractice claim. As noted, the Court of Appeals reversed, concluding that a material fact issue existed regarding whether Pete shared an attorney-client relationship with the two minor Anderson children, therefore rendering summary judgment premature.

The standard of review of a summary judgment is whether the trial court correctly found that there was no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Norton Hospitals, Inc. v. Peyton, 381 S.W.3d 286 (Ky.2012). We will uphold a summary judgment only if after viewing the evidence in the light most favorable to the party opposing the motion, we conclude that party " could not prevail under any circumstances." Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). Where, as here, factual findings are not at issue, we review the legal conclusions of the lower courts de novo. Branham v. Stewart, 307 S.W.3d 94 (Ky.2010).

Michael, Jr. and Malik maintain that the trial court ignored a genuine issue of material fact in granting Pete's motion for summary judgment. They claim that Elizabeth's affidavit concerning Pete's legal representation demonstrates that she reasonably believed that Pete was representing not only her own interests, but the interests of her minor children as well. Elizabeth's affidavit states in part as follows:

7. In or around the summer of 2004, Mr. Pete met with me and my children, Michael and Malik, in person at my home to discuss the loss my children suffered as the result of the death of their father, Mr. Anderson.

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8. On several occasions during the course of Defendants' representation in the Prior Action, Mr. Pete explained to me that a trust fund would be created for the benefit of my children, including Michael and Malik, should there be recovery of money from Dixie Warehouse Services in connection with the Prior Action.
9. Because of the course of my dealings and communications with Defendants, I understood that Defendants were representing me, my children, and my husband's, Mr. Anderson, estate in the Prior Action.
10. Specifically, I understood that Defendants were representing any claims my children, including Michael and Malik, may have had against Dixie Warehouse Services in the Prior Action.

Pete argues that the Court of Appeals erred because these facts are irrelevant, given that the question of duty is a legal one for the court to decide. However, " [a] plaintiff in a legal malpractice case has the burden of proving 1) that there was an employment relationship with the defendant/attorney; 2) that the attorney neglected his duty to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances; and (3) that the attorney's negligence was the proximate cause of damage to the client." Marrs, 95 S.W.3d at 860 ( quoting Stephens v. Denison, 64 S.W.3d 297, 298-99 (Ky.App.2001)). The contractual relationship between an attorney and client may be " either expressed or implied by the conduct of the parties." Daugherty v. Runner, 581 S.W.2d 12, 16 (Ky.App.1978). Indeed, an attorney-client relationship may be created as a result of a party's " reasonable belief or expectation," based on the attorney's conduct, that the attorney has endeavored to undertake representation. Lovell v. Winchester, 941 S.W.2d 466, 468 (Ky.1997); Am. Continental Ins. Co. v. Weber & Rose, P.S.C., 997 S.W.2d 12 (Ky.App.1998). Therefore, whether a party had a " reasonable belief or expectation" relating to the attorney's representation of that party's legal interests is a question of fact. See Marrs, 95 S.W.3d 856; Lovell, 941 S.W.2d 466.

In viewing the evidence in the light most favorable to Michael, Jr. and Malik, we may accept the facts presented in their mother's affidavit as true. Elizabeth testified that she believed " that Defendants were representing any claims my children, including Michael and Malik" had against Dixie. [3] Therefore, the reasonableness of Elizabeth's belief presents a genuine issue of material fact, uncontroverted at the time summary judgment was entered. Without record of a contract, memoranda, or other facts establishing the scope of the relationship,[4] it is plausible that Pete's conduct left Elizabeth with the reasonable understanding that he would pursue her minor sons' claims as well as her own. Of course, it may be revealed through discovery on remand that this was not the case, but the factual question of whether Elizabeth held a " reasonable belief or expectation" concerning Pete's representation precludes summary judgment. Steelvest, Inc., 807 S.W.2d at 480. Consequently, we affirm the Court of Appeals' reversal and remand of the trial court's summary judgment ruling on the issue of Pete's representation of Michael, Jr. and

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Malik regarding any claims they had arising from their father's death.

II. The Attorneys Owed Duties to the Children Who Were the Real Parties in Interest to the ...

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