Opinion
NO. 2018-CA-001130-MR
01-10-2020
JAMESHA D. CHARLESTON APPELLANT v. VINCENT F. MALLON APPELLEE
BRIEF FOR APPELLANT: Bethanni Forbush-Moss Louisville, Kentucky BRIEF FOR APPELLEE: Monica Shahayda Shepherdsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 17-CI-003101 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES. CLAYTON, CHIEF JUDGE: Jamesha D. Charleston appeals from the Jefferson Circuit Court's dismissal of her pro se legal malpractice suit against Vincent F. Mallon for Charleston's failure to comply with Kentucky Rule of Civil Procedure (CR) 4.01 and for failing to properly serve Mallon within the one-year statute of limitation's governing legal malpractice claims. Upon review of the record and applicable law, we affirm.
BACKGROUND
On June 16, 2017, Charleston filed a pro se complaint alleging legal malpractice against her former attorney, Mallon, and centering around Mallon's termination of his representation of Charleston. Charleston had initially requested Mallon's help in instituting a medical malpractice suit against Charleston's dentist. The parties signed a contract on October 30, 2015, which included the following language:
If, after investigation, Attorney deems, in his sole discretion, that the possibility of recovery is remote or that this case is otherwise not worth pursuing, then Attorney may terminate this contract, with notice to client, and Attorney shall have no further duty to represent client thereafter.To ensure that Charleston's potential medical malpractice claims were preserved, Mallon helped Charleston prepare a pro se complaint, which Charleston filed on April 21, 2016, while Mallon investigated the merits of Charleston's potential dental malpractice claim.
Based on the opinion of an expert retained by Mallon, Mallon ultimately found Charleston's suit to be without merit, and on July 13, 2016, Mallon sent Charleston a letter stating that he could not represent her and encouraging her to find a different lawyer if she so chose. Charleston's complaint in the underlying medical malpractice suit was ultimately dismissed on July 20, 2016 upon the defendant's motion for summary judgment.
Charleston's June 2017 complaint against Mallon stated that she was ". . . seeking damages due to malpractice, (legal) negligence, pain and suffering, lost wages and or any future damages as a result of Mr. Vincent F. Mallon failing to uphold his contract in medical malpractice suit I was pursing [sic]." While Charleston filed the complaint with the clerk on June 16, 2017, the clerk did not mail the complaint and summons to Mallon but rather returned them to Charleston. Thereafter, Charleston's only attempt at service was to mail via certified mail a copy of the summons and an incomplete copy of the complaint to Mallon on October 16, 2017.
Mallon filed a motion to dismiss on September 1, 2017, alleging that Charleston's mailing of the incomplete complaint did not constitute proper service under CR 4.01, which required that service by certified mail be effectuated by the circuit court clerk. Mallon further argued in a memorandum in support of his motion to dismiss that Charleston had failed to proceed with service in good faith as required by CR 3.01. The trial court eventually granted Mallon's motion to dismiss by an order entered June 13, 2018.
During the approximately nine months between Mallon's filing of his motion to dismiss and the trial court's order granting Mallon's motion to dismiss, the parties were before the trial court on various occasions to address the motion. On one occasion, the trial court encouraged Charleston to seek legal advice regarding the insufficiency of process and scheduled a status conference. At the status conference, Charleston indicated she was seeking representation and asked for a continuance. Thereafter, on October 18, 2017, Charleston appeared with an attorney, Shameka O'Neil. By written order entered on October 18, 2017, the trial court noted that O'Neil "was appearing for today only," and the court set a November 15, 2017 date for the hearing. Subsequently, on such hearing date, Charleston again appeared without counsel. Because Charleston was without counsel, the trial court declined to hold a formal hearing, as the trial court believed that Charleston was still being represented by O'Neil and was uncomfortable proceeding without Charleston's counsel. Rather, the trial court indicated at that point that Mallon's motion to dismiss would be taken under advisement, and in the interim strongly encouraged Charleston to contact her lawyer.
Between the time that Mallon filed the motion to dismiss for inadequate service on September 1, 2017, and the trial court's entry of the order granting Mallon's motion on June 13, 2018, Charleston made no further attempts at serving Mallon, nor did she ever respond to Mallon's motion to dismiss. As a result, the trial court granted the motion to dismiss based on Charleston's insufficient service of process and on the additional grounds that the one-year statute of limitations period for the filing of a legal malpractice claim had passed. At no point did the trial court hear evidence related to Charleston's malpractice claim against Mallon, nor did the trial court make any evidentiary findings. Charleston subsequently filed the instant appeal through counsel.
ANALYSIS
a. Standard of Review
While Mallon filed a motion to dismiss Charleston's complaint for insufficiency of process, Mallon thereafter filed a memorandum which included exhibits that constituted matters outside the pleadings, including an affidavit from Mallon. Further, in its order the trial court stated that it considered Mallon's memorandum in reaching its decision. Where matters outside the pleadings are considered on a motion to dismiss for failure to state a claim, the motion must be treated as one for summary judgment. Ferguson v. Oates, 314 S.W.2d 518, 521 (Ky. 1958). Accordingly, we have treated the judgment as a summary judgment and undertake a review in accordance with the summary judgment standard of review.
In reviewing a grant of summary judgment, our inquiry focuses on "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." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03. Further, "[a]n appellate court need not defer to the trial court's decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved." Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004) (citations omitted).
b. Charleston's Claims of Alleged Error
Turning to Charleston's specific claims of error, Charleston first argues on appeal that, because her legal malpractice claim against Mallon stemmed from Mallon's alleged breach of the contract signed by the parties in October 2015, the dispute is therefore governed by the fifteen-year statute of limitations for breach of contract under Kentucky Revised Statutes (KRS) 413.090. The express language of the Kentucky statute governing actions for professional service malpractice, KRS 413.245, specifically states:
a civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others 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.(Emphasis added). Because Mallon's alleged breach of contract originated from the performance or lack of performance of professional services, the applicable statute of limitations is therefore KRS 413.245. See Matherly Land Surveying, Inc. v. Gardiner Park Development, LLC, 230 S.W.3d 586, 590 (Ky. 2007).
The only other argument contained in Charleston's brief is that her due process rights were violated because she was not afforded the opportunity to be meaningfully heard regarding Mallon's motion to dismiss. Although Charleston argues the general principles of due process, we assume that she is referring to procedural due process rather than substantive due process. As explained by the Kentucky Supreme Court in Miller v. Johnson Controls, Inc.:
The term "due process" has two meanings in American jurisprudence: (1) substantive due process, which is based on the idea that some rights are so fundamental that the government must have an exceedingly important reason to regulate them, if at all, such as the right to free speech or to vote; and (2) procedural due process, which requires the government to follow known and established procedures, and not to act arbitrarily or unfairly in regulating life, liberty or property.296 S.W.3d 392, 397 (Ky. 2009).
Further, in order to succeed in establishing a Fourteenth Amendment procedural due process claim, a party must demonstrate:
(1) that he enjoyed a protected "liberty" or "property" interest within the meaning of the Due Process Clause, and (2) that he was denied the process due him under the circumstances.Marksberry v. Chandler, 126 S.W.3d 747, 749 (Ky. App. 2003), as modified on reh'g (Jan. 30, 2004) (citations omitted).
In this case, Charleston does not identify the specific property or liberty interest that she claims was abridged in order for procedural due process to attach. While Charleston cites the case Reynolds v. Cochran to bolster her position, Reynolds was related to the necessity of holding an evidentiary hearing before divesting an individual of a liberty right, a protected interest which is wholly inapplicable in this case. 365 U.S. 525, 81 S.Ct. 723, 5 L.Ed.2d 754 (1961). Charleston's liberty was clearly not at issue in this situation, and any money damages Charleston might have received as a result of the legal malpractice suit were "a mere subjective expectancy" of entitlement and not protected by procedural due process. Lipson v. University of Louisville, 556 S.W.3d 18, 31 (Ky. App. 2018) (quoting Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972)). On the contrary, a trial court's dismissal of a complaint based on lack of proper service or a statute of limitations issue does not rise to the denial of a constitutionally-protected right.
Moreover, Charleston had ample opportunity to file a written response to Mallon's motion setting forth her arguments and support for her position and has failed to indicate on appeal any additional arguments she would have made at a hearing that she was precluded from making in a written pleading. Simply stated, not only has Charleston failed to identify the specific property or liberty interest that she claims was abridged, but the trial court afforded Charleston almost nine months' time to present her arguments in opposition to Mallon's motion to dismiss.
We discern no error in the proceedings warranting Charleston the relief she seeks, and therefore affirm the Jefferson Circuit Court's order.
ALL CONCUR. BRIEF FOR APPELLANT: Bethanni Forbush-Moss
Louisville, Kentucky BRIEF FOR APPELLEE: Monica Shahayda
Shepherdsville, Kentucky