Opinion
NO. 2015-CA-001561-MR
05-05-2017
JOYCE LANE APPELLANT v. THOMAS J. GRADY, INDIVIDUALLY AND SEGAL, STEWART, CULTER, LINDSAY, JANES, AND BERRY, PLLC APPELLEE
BRIEFS FOR APPELLANT: Joyce Lane, Pro se Pineville, Kentucky BRIEF FOR APPELLEE: Andrea Hunt J. Allan Cobb Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 05-CI-009582 OPINION
AFFIRMING
** ** ** ** **
BEFORE: MAZE, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Joyce Lane appeals from the denial of her motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 seeking to set aside a 2009 order of dismissal and a 2013 order denying her prior CR 60.02 motion. Because her CR 60.02 was untimely, we affirm.
This is an action filed against Thomas Grady and members of his law firm. It is one of two legal malpractice actions filed by Lane arising from representation she received in pursuit of her claim in the United States District Court against the Bell County School Board for violations of the Americans with Disabilities Act and Civil Rights Act and for the tort of outrage.
As a result of various rulings in the legal malpractice actions, Lane previously filed four appeals. Lane v. Richards (Richards III) 2012-CA-002125-MR, 2014 WL 356597 (Ky. App. 2014); Lane v. Richards, (Richards II) 2010-CA-000414-MR, 2012 WL 3628888 (Ky. App. 2012); Lane v. Grady (Grady I), 2010-CA-000648-MR, 2011 WL 5599570 (Ky. App. 2011); and Lane v. Richards (Richards I), 256 S.W.3d 581 (Ky. App. 2008). To understand the lengthy history of this case, we cite to the facts from those opinions as necessary to the current appeal.
Richards III followed this Court's opinion in Lane v. Richards, 2010-CA-000414-MR, 2012 WL 3628888 (Ky. App. 2012), where we reversed and remanded an order dismissing Lane's action against Richards for failure to prosecute. --------
Lane retained [Hugh Montgomery] Richards in April of 1998 to represent her in an action in federal district court against the Bell County School Board for various violations of federal law. The district court dismissed her claim on February 11, 2002. Lane then retained H. Wayne Roberts to represent her in her appeal to the Court of Appeals for the Sixth Circuit. The court dismissed that appeal on August 12, 2003.
On September 12, 2003, Roberts wrote a letter to Lane informing her of the dismissal. Roberts further stated in his letter that he would not continue to represent her in
the prosecution of any further proceedings because he believed an appeal to the United States Supreme Court would be futile. Furthermore, he correctly informed her that she had ninety days from August 12, 2003, to file the writ of certiorari with that court. Also, Roberts expressed his view that Lane had a malpractice claim against Richards. Finally, he expressed what proved to be a conservative and cautious view that Lane had one year from August 12, 2003, to file such a claim.
Without Roberts to represent her in her pursuit of relief before the United States Supreme Court, Lane retained Thomas Grady in October 2003 to do so. Shortly after she paid him a $7,000 retainer, Grady told Lane verbally that he had timely filed the writ and that she should expect a ruling from the Supreme Court between April and December 2004. On March 23, 2004, Grady wrote to Lane stating, "[a]s soon as I hear from the Supreme Court I will let you know." The record shows that on July 28, 2004, Lane wrote either to Grady or his firm. Five months later, on December 28, 2004, one of the firm's partners responded.
Id. at 583. After receipt of Grady's partner's letter, Lane retained Bobby G. Wombles to represent her in a legal malpractice against Richards and Grady.Mr. Grady's service with this firm has been terminated . . . . Mr. Grady prepared a Writ of Certiorari in the Supreme Court but never filed it.
The trial court granted summary judgment to Richards based on the statute of limitations and Lane appealed. This Court concluded the statute of limitations did not commence to run until Lane discovered the accrual of her cause of action when she received the December 2004 letter from Grady's law firm informing her of Grady's failure to file the writ. Therefore, her complaint was not barred. Id. at 585.
While Richards I was pending, the action against Grady did not progress and the trial court sua sponte issued a show cause order as to the reason for the delay. Lane requested that the trial court retain the case on the docket until she learned the outcome of Richards I.
On February 22, 2008, the trial court set another show cause hearing as to why the case against Grady should not be dismissed. Lane responded by filing a motion for summary judgment to which Grady responded. The trial court did not rule on that motion.
On June 13, 2008, Richards I was decided. Between June 2008 and November 2009, Lane took no action to prosecute her claim against Grady. A summary of the events following this Court's decision in Richards I was set forth in Grady I as follows:
Eventually, on or about November 5, 2009, Grady filed a motion to have Lane's claims dismissed with prejudice for lack of prosecution. A hearing was scheduled for November 9, 2009. At the hearing, no one appeared on Lane's behalf. The trial court took the motion under consideration and gave Lane 20 days to respond. The 20 days expired without response from Lane or her counsel. On December 7, 2009, the trial court entered an order dismissing Lane's claims with prejudice. No appeal was filed from the December 7, 2009 order dismissing the suit with prejudice.
On December 29, 2009, Lane filed a motion pursuant to CR 60.02 to set aside the dismissal based upon a letter that her attorney, Mr. Wombles, had written to defense counsel stating that he was under a disability, fighting a diagnosis of early Alzheimer's, and intended to withdraw from the case. A hearing was held on January 25, 2010, at which Mr. Wombles described his disability and the trial court agreed to relieve him as counsel. The court also denied the CR 60.02 motion without prejudice so that Lane could obtain new counsel and submit a new motion.Grady I, 2011 WL 5599570 at 2. Lane did not retain new counsel and did not file a new CR 60.02 motion. Instead, she appealed the March 3, 2010 order, which she now contends was upon the advice of Wombles.
On February 12, 2010, Mr. Wombles, who was no longer Lane's counsel of record, filed a number of motions with the court related to Lane's case, none of which specifically challenged the trial court's denial of the CR 60.02 motion. On March 3, 2010, the trial court denied all of the motions because Mr. Wombles lacked standing to proceed as he was no longer counsel for Lane.
In Grady I, this Court held that the "March 3, 2010 order [was] the only order appealed timely as prescribed by CR 73.02 and [was] therefore the only order" properly before this Court. Id. Because "[t]hat order only dealt with the motions brought by Mr. Wombles after he had withdrawn from the case[,]" we did not consider whether the trial court properly denied her CR 60.02 motion. Id. However, we reminded Lane that her CR 60.02 motion was denied without prejudice. Id.
One year after this Court decided Grady I, on November 15, 2012, Lane moved to set aside the 2009 order of dismissal on the basis of CR 60.02 (a), (b), (d), (e) and (f) claiming mistake, excusable neglect, and newly discovered evidence and extraordinary circumstances. That motion was denied on the basis it was filed more than one year after the 2009 order and relief was not available under CR 60.02 (d) or (f). The May 17, 2013 order directed "cc" to Lane and counsel for Grady.
Lane did not appeal the May 17, 2013 order. However, on April 24, 2015, she again filed a CR 60.02 motion claiming extraordinary circumstances warranted setting aside the trial court's order of December 9, 2009, and May 17, 2013. Among her allegations was that she did not receive that 2013 opinion and order until she inquired about it in January 2015 and did not receive a copy until February 3, 2015.
The trial court denied Lane's motion for three distinct reasons. First, it ruled that the motion was untimely even under the more lenient provision of CR 60.02(f) because she had known of the underlying facts, including Womble's Alzheimer's disease, as early as 2009. Second, Lane's motion attempted to re-litigate issues considered in her three prior CR 60.02 motions. Third, her arguments all fall under other subsections of CR 60.02 precluding the application of subsection (f). Although the trial court concluded by expressing empathy for Lane and understanding of her frustration with the legal representation she received, it found that there were no extraordinary circumstances to warrant disturbing its prior final orders.
As the recitation of the facts reveal, this case involves numerous instances of alleged malpractice against three attorneys. Like the trial court, we understand Lane's frustration with the representation received but, as we noted in Richards III, "[t]he law demands the exercise of due diligence by the client as well as her attorney." Richards III, 2014 WL 356597 at 3. Due diligence requires compliance with the time limitations imposed by CR 60.02.
CR 60.02 (emphasis added) provides:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.
Lane's motion was not brought within one year of either the 2009 or 2013 order and, therefore, if relief is available at all, it must be under CR 60.02 (d) or (f). Although those subsections do not impose a one year limitation, any motion must be filed within a reasonable time. Because the finality of judgments is of utmost importance to our judicial system, CR 60.02(f) is reserved for only the most unusual of circumstances. Cawood v. Cawood, 329 S.W.2d 569 (Ky. 1959).
"What constitutes a reasonable time in which to move to vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion of the trial court." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). A trial court's direction is said to be abused only if the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
A summary of the trail of CR 60.02 motions filed by Lane reveal the unreasonable amount of time that has passed since the entry of the 2009 order and the 2013 order about which she complains. In 2010, the trial court ruled on Lane's first CR 60.02 motion to set aside the 2009 order of dismissal. In addition to allowing Wombles to withdraw as counsel of record because of his mental health, the trial court denied the CR 60.02 motion but permitted Lane to retain new counsel and file a new CR 60.02 motion. However, apparently on the advice of Wombles, who at this point Lane knew suffered from Alzheimer's disease and was no longer counsel of record, Lane did not file a new CR 60.02 motion but appealed a later order dealing with motions filed by Wombles.
Even after her appeal was decided in Grady I where we emphasized the denial of her first CR 60.02 motion was without prejudice, Lane did not file a second CR 60.02 motion until November 15, 2012. The trial court ruled that her motion was untimely and she did not appeal. Lane's latest CR 60.02 motion seeking again to set aside the 2009 order and the May 17, 2013 order was not filed until April 24, 2015. Under the circumstances, the trial court did not abuse its discretion in denying the motion as untimely. Although we believe the trial court's alternative grounds for denying the motion would also require that we affirm, further discussion is unnecessary.
Finally, Lane improperly requests that this Court grant her summary judgment on her initial claims filed and decided in the federal action against the Bell County School Board. Grady's motion to strike those portions of her appellate reply brief requesting such relief was passed to the panel hearing the case on the merits. While we chose not to strike those portions of the brief, Lane's request is not proper for various reasons, including that this Court has jurisdiction over appeals from decisions of lower courts in this Commonwealth, not those from federal courts. Kentucky Revised Statute 22A.020.
Based on the foregoing the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Joyce Lane, Pro se
Pineville, Kentucky BRIEF FOR APPELLEE: Andrea Hunt
J. Allan Cobb
Louisville, Kentucky