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Azmat v. Bauer

Supreme Court of Kentucky

September 27, 2018


          CORRECTED: APRIL 18, 2019


          COUNSEL FOR APPELLANT: Dina L. Abby

          COUNSEL FOR APPELLEES: Daniel Garland Brown Scott Randall Redding David Bryan Gazak James Eric Smith Gazak Brown, PSC



         Sameena Azmat appeals from an opinion of the Court of Appeals which upheld the Hardin Circuit Court's dismissal of the case. The dismissal arises from an action brought by Sameena as mother and "next friend" of her son, Nausher Azmat.[1] This Court granted discretionary review to address the important issues presented. Because we find error in the courts below, we reverse and remand the case to the Hardin Circuit Court for further proceedings.


         Sameena gave birth to Nausher on July 5, 1997. Dr. George Bauer at Elizabeth town Physicians for Women, P.S.C., provided Sameena with prenatal care. Sameena was concerned that she did not seem to be gaining weight similarly to other pregnant women, but Dr. Bauer informed her that her child would be small because Sameena was a petite woman.

         After Sameena had completed her regular prenatal appointments, the child was scheduled to be delivered on July 5, 1997. However, on July 3, 1997, Sameena noticed a decrease in fetal movement. Dr. Bauer performed an ultrasound and noted that everything was normal. When Sameena arrived for her child to be delivered on July 5, she was told the baby was in distress and a caesarian section would be performed.

         Nausher was born blue and suffered cardiac arrest post-delivery. His birth history included hypoxia, aspiration of meconium, Intrauterine Growth Restriction, a "paucity" of amniotic fluid, two cardiac arrests, a 14-day hospital stay, perinatal asphyxia, intubation for the first week of life, Persistent Pulmonary Hypertension of the Newborn (PPHN), cardiorespiratory arrest with CPR required, and coagulopathy of such severity that he was not a candidate for ECMO.[2]

         Sameena brought suit, by and through counsel, on March 27, 2012, as mother and next friend of Nausher, against Dr. Bauer and Elizabethtown Physicians for Women, P.S.C. Sameena alleged that Nausher's developmental delays were caused by Dr. Bauer's negligence in Sameena's prenatal care and Nausher's delivery. Discovery commenced thereafter. Although numerous, the circuit court proceedings are all relevant to this matter, thus we outline them below.

         The circuit court entered a Pretrial Order on May 2, 2013 setting a date for jury trial as well as deadlines for the parties' expert witness disclosures. In October 2013, Azmat's attorney filed a motion for an extension to file expert disclosures and a request to reschedule the trial date. The justification for the motion and the extension was that Nausher was to undergo genetic testing. Dr. Bauer had no objection to Azmat's request for an extension, and the trial court granted the motion and entered a new Pretrial Order.

         In December 2013, the parties jointly filed a motion for a new trial date. The circuit court granted the motion and rescheduled the jury trial.[3] On April 16, 2014, Azmat's counsel moved to withdraw from the case and also requested a 90-day continuance of all deadlines. Counsel cited irreconcilable differences and a breakdown in communication as grounds for withdrawal. Counsel also told the court that he had advised Sameena of his intention to withdraw and sent her a copy of the motion via certified mail. The record does not purport to show Sameena's presence at this hearing. Neither counsel nor the court directed any questions towards Sameena nor otherwise acknowledged her presence, so this Court cannot conclusively determine if Sameena was present.[4] The trial court granted counsel's motion to withdraw by order entered on April 24, 2014, and continued deadlines for 60 days for Sameena to find replacement counsel, or she would be deemed to proceed pro se.

         On April 28, 2014, Sameena filed expert disclosures. It appears that the disclosures had already been prepared by prior counsel, but Sameena signed the documents and filed them. On June 20, 2014, Sameena wrote a letter to the judge requesting additional time to find counsel. On July 2, 2014, Dr. Bauer filed his expert disclosures and objection to Azmat's request for additional time to find replacement counsel. Dr. Bauer pointed out that Sameena filed her expert disclosures pro se and such filing was an effective entry of appearance as a pro se litigant.

         On July 3, 2014, Dr. Bauer moved to compel Sameena to provide dates for experts to be deposed, or, in the alternative, to exclude Sameena's experts. On July 10, 2014, Sameena moved for more time to find an attorney.[5] On July 17, 2014, the trial court entered an order compelling Sameena to provide dates for her experts to give depositions. On July 28, 2014, Sameena refiled her motion for an extension of time.

         On July 31, 2014, Sameena sent defense counsel an email giving date ranges for depositions based on her experts' availability. Also, on July 31, 2014, the defense moved to exclude experts for failure to disclose dates for depositions and for summary judgment. The defense argued that because the possible dates for depositions were after the scheduled trial date, Sameena had not effectively complied with the court's order, and exclusion was warranted. If the experts were excluded, defense argued they would be entitled to judgment as a matter of law because a plaintiff in a medical malpractice case must provide expert testimony as part of the prima facie case.

         On August 8, 2014, the trial court denied Sameena's motion for an extension of time. On August 18, 2014, Sameena responded to defense's motion to exclude experts and summary judgment. By order entered September 4, 2014, the trial court rescheduled the trial for March 30, 2015, ordered that depositions be scheduled before March 2, 2015, and that the parties mediate before March 16, 2015. The trial court further indicated that there was no finding that Sameena had deliberately disregarded the court's prior orders.

         On September 9, 2014, Dr. Bauer moved to strike Sameena's experts alleging Sameena had engaged in the unauthorized practice of law. The defense argued that Sameena, as "next friend," had no claims in the case, thus she could not proceed pro se on behalf of Nausher. The trial court set forth a briefing schedule on the issue of the unauthorized practice of law. Sameena did not file a response and Dr. Bauer submitted his reply brief on October 17, 2014.

         On November 10, 2014, the trial court entered an order finding that Sameena had engaged in the unauthorized practice of law and stated that Sameena's experts would be stricken unless she found an attorney within 30 days. On January 26, 2015, an order was entered striking Sameena's expert witnesses. On February 13, 2015, the trial court entered an order dismissing the case with prejudice.

         On March 13, 2015, Sameena secured counsel to file her notice of appeal from the grant of summary judgment to Dr. Bauer. The Court of Appeals affirmed, holding that Sameena did engage in the unauthorized practice of law, thus it was proper for the trial court to strike her pleadings and grant summary judgment to Dr. Bauer. Sameena, without counsel, filed a motion for discretionary review with this Court. Dr. Bauer moved to strike and dismiss the motion because it was not filed by counsel. This Court passed Dr. Bauer's motion to the consideration of the merits of the motion for discretionary review. Because we granted discretionary review, any challenge to the motion or to this appeal being properly before this Court is rendered moot.[6]

         II. ANALYSIS

         "Actions involving unmarried infants or persons of unsound mind shall be brought by the party's guardian or committee, but if there is none, or such guardian or committee is unwilling or unable to act, a next friend may bring the action." Kentucky Rules of Civil Procedure (CR) 17.03(1). "[T]he 'next friend' device is a procedural one by which a minor's claim is brought into court and a person acting as such is only a nominal party with no unilateral statutory or other authority to settle the minor's claim." Jones By and Through Jones v. Cowan, 729 S.W.2d 188, 190 (Ky. App. 1987). A next friend is the minor's agent, merely bringing an action on the minor's behalf. "[T]he minor is the real party in interest in any lawsuit filed on the minor's behalf by the minor's next friend." Branham v. Stewart, 307 S.W.3d 94, 97-98 (Ky. 2010). The attorney "has an attorney-client relationship with, and owes professional duties to, the minor." Id. at 99 (emphasis added).

         None of the alleged errors are preserved for review. Nonetheless, this Court can review the claims under the palpable error standard.

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

CR 61.02.

         A. The trial court erred in permitting Azmat's attorney to withdraw.

         There are certain instances in which counsel is required to decline or terminate the representation of a client. Supreme Court Rules (SCR) 31.30(1.16)(a)(1)(2)and(3). There are also instances where a lawyer may be able to withdraw from representing a client if:

(1) Withdrawal can be accomplished without material adverse effect on the interests of the client; or
(2) The client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; or
(3) The client has used the lawyer's services to perpetrate a crime or fraud; or
(4) The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a ...

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