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Kendall v. Godbey

Court of Appeals of Kentucky

December 15, 2017

ANDRIA KENDALL APPELLANT
v.
MARK E. GODBEY, ZACHARY D. SMITH, AND GODBEY & ASSOCIATES APPELLEES

         APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHLEEN LAPE, JUDGE ACTION NO. 12-CI-02511

          ROBERT L. POOLE COVINGTON, KENTUCKY BRIEF FOR APPELLANT

          JOSEPH W. BORCHELT CINCINNATI, OHIO BRIEF FOR APPELLEES

          BEFORE: KRAMER, CHIEF JUDGE; CLAYTON, AND TAYLOR, JUDGES.

          OPINION

          CLAYTON, JUDGE:

         In a legal malpractice action, Andria Kendall appeals the Kenton Circuit Court's grant of summary judgment in favor of Mark E. Godbey, Zachary D. Smith, and Godbey & Associates ("Godbey"), and its denial of the motion to vacate the summary judgment. Kendell maintained that Godbey committed legal malpractice by missing the statute of limitations while representing her in a negligence action.

         After a careful review of the record and the arguments, we reverse and remand because the grant of summary judgment was improper.

         BACKGROUND

         On October 10, 2010, Kendall was raped and sexually assaulted by Mohamud Abukar, a taxi cab driver for Community Yellow Cab ("Community Cab").[1] In December 2010, she hired Mark Godbey and his law firm to represent her in a civil suit arising out of the sexual assault. But no civil suit was ever filed. Further, Godbey, who is an Ohio attorney, ostensibly informed Kendall that he was licensed to practice law in Kentucky when he was not.

         Approximately two years later, after Godbey had failed to file the suit, Kendall sued him and his law firm for legal malpractice. She contended that because Godbey failed to file a lawsuit against the cab driver, the cab company, or other potentially liable parties within applicable statute of limitations, he breached his contract with her and committed legal malpractice. Kendall also argued that Godbey fraudulently induced her to enter into a contract for legal representation by claiming that he was licensed to practice law in Kentucky. Lastly, she claimed that Godbey & Associates was vicariously liable for the actions of Mark E. Godbey and Zachary D. Smith.

         During the pendency of the malpractice matter, Godbey filed a motion for summary judgment arguing that because Kendall would not have prevailed in the original action, he and his associates were not liable for legal malpractice. Godbey believed he was entitled to summary judgment because for Kendall to succeed in a legal malpractice matter, under Kentucky's suit-within-a-suit approach, she must establish that the original negligence action would have been successful. Godbey asserted that Kendall would not have been able to establish negligence on the part of Community Cab, and thus, Godbey was not liable for legal malpractice.

         On February 15, 2016, the trial court granted summary judgment in favor of Godbey. The trial court maintained that the crux of the underlying negligence was based on the theory of negligent hiring and retention. Since Abukar apparently had no criminal history or record, the sexual assault was not foreseeable by his employer, and therefore, Community Cab would not have been liable for Abukar's actions. Hence, the trial court held that the lawyers' failure to file a timely law suit would not have resulted in an award of damages and no legal malpractice occurred. Kendall filed a motion to vacate the summary judgment, which the trial court also denied. Kendall now appeals from these two decisions.

         STANDARD OF REVIEW

         The standard of review on appeal when a trial court grants a motion for summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001), citing Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03.

         The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Lewis, 56 S.W.3d at 436. Moreover, because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and reviews the issue de novo. Id. Having determined the standard of review, we turn to the case at hand.

         ANALYSIS

         Kendall appeals the grant of summary judgment in favor of Godbey in the legal malpractice action. She argues that the trial court erred in holding that the heightened standard of care for common carriers did not apply; that even under the ordinary standard of care, the trial court erred since foreseeability is a question of material fact for a jury to decide; and finally, that the trial court erred in its failure to address the statute of limitations issue. Godbey counters that under the "suit-within-a-suit" approach to legal malpractice in Kentucky, Kendall could not sustain her burden of proof because the cab company could not reasonably foresee that its driver would sexually assault a female passenger, and therefore, the grant of summary judgment was proper.

         In its grant of summary judgment to Godbey, the trial court found that Abukar's assault was a willful, malicious assault outside the scope of his employment. Furthermore, it clarified that the liability was not predicated upon by a breach of the cab company's failure to safely transport its passengers but rather a breach of the cab company's duty of care to properly hire and retain employees. In addition, the trial court held that because criminal activity was not foreseeable by the cab company since Abukar's record was apparently clean, the cab company did not breach its duty of care, and hence, was not negligent. Accordingly, the trial court decided that the underlying suit would not have been successful, and Godbey's negligence was not the proximate cause of Kendall's damages.

         Legal malpractice cases require a specific methodology. Under Kentucky law, a plaintiff in a legal malpractice action has the burden of proving that an employment relationship existed with the defendant/attorney; that the attorney neglected the duty to exercise the ordinary care of a reasonably competent attorney in the same or similar circumstances; and, that the attorney's ...


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