Opinion
NO. 2016-CA-000662-MR
05-18-2018
CHRISTOPHER RUFF APPELLANT v. ADELE BURT BROWN APPELLEE
BRIEF FOR APPELLANT: Robin C. Thorogood Lexington, Kentucky BRIEF FOR APPELLEE: Edward E. Dove Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 15-CI-00956 OPINION
AFFIRMING
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BEFORE: CLAYTON, J. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Christopher Ruff appeals from the Fayette Circuit Court's order granting summary judgment to his divorce attorney, Adele Burt Brown, on the basis that Ruff's malpractice claim was time barred as having been filed more than one year after his cause of action was discovered.
According to Ruff, Dominic Deshaw Ruff (mother) and Ruff were high school sweethearts in Kentucky. When mother's child was born in 2006, Ruff believed child was his and consented to being named as her father on the birth certificate. They subsequently broke up after Ruff became suspicious about child's paternity. Ruff had DNA testing performed in April 2008, and learned that he was not child's biological father.
Ruff and mother later reunited and married in 2009. Ruff was in the Navy and they lived in Hawaii where he was stationed. Child lived in Kentucky with mother's grandmother, who was granted custody of child in a separate proceeding.
In October 2010, Ruff filed for dissolution in Kentucky. Despite knowing child was not his, Ruff, who was represented by Brown, repeatedly represented to the family court in court documents that child was born of the marriage. In the agreed property settlement, which was drafted by Brown, Ruff agreed to pay mother $400 a month in child support and was to have reasonable visitation when his duty schedule permitted. The property settlement was incorporated into the decree of dissolution which was entered on November 30, 2011. Brown's representation of Ruff concluded at this time.
Ruff paid child support from the time of the dissolution through October 2013. In December 2013, the Fayette County Attorney filed an intervening petition in the dissolution action to enforce the child support order, which stated that Ruff is the father of child and has a duty to provide child support. The motion to intervene was granted on March 4, 2014.
Ruff obtained new counsel to represent him in the dissolution action. In Ruff's answer, which he verified on February 7, 2014, and filed on March 20, 2014, he raised the issue of paternity for the first time, stating he was proven not to be child's father in the 2008 paternity test.
While certain documents from the dissolution were made part of the record, Ruff's answer to the intervening petition is not part of the record. Our understanding of the contents of this answer come from the family court's October 9, 2014 findings of fact, conclusions of law and order, Brown's motion for summary judgment and the appellee's brief.
Ruff moved for a modification or suspension of his child support obligation in the dissolution action because he was not child's father. The family court in its findings of fact, conclusions of law and order entered on October 9, 2014, and its order denying Ruff's motion to alter or amend entered on November 12, 2014, determined although there was no paternity by estoppel, the property settlement was enforceable as a contract because Ruff knew he was not child's biological father before entering into the property settlement agreement and received the consideration of being able to get a divorce and have visitation and could enforce his right to visitation. Ruff did not appeal.
On March 17, 2015, Ruff filed a separate action against Brown. He claimed she was professionally negligent in fulfilling her duty of care toward him where: (1) he informed Brown that child was born before the marriage, he was excluded from being child's biological father through DNA testing, he had not adopted child and he did not want to pay child support for child, but Brown failed to inform him that he had no legal obligation to pay child support for child under these circumstances; (2) she failed to file a timely motion for default where mother failed to answer for more than seven months; (3) she failed to act with reasonable diligence and promptness in representing him, failed to promptly comply with his reasonable requests for information and to keep him reasonably informed about the status of the case; and (4) she failed to zealously advocate for his best interests by counseling him to agree to mother's demands and agree to pay child support. Ruff also claimed Brown breached her fiduciary duty by not subordinating her own interests and the interests of mother to Ruff's interests when she advocated for a settlement that benefited herself or mother rather than pursuing a hearing or mediation of the matter.
Sometime after filing the complaint in the malpractice action, Ruff filed a Kentucky Rules of Civil Procedure (CR) 60.02(e) motion to vacate in the dissolution action. The family court denied this motion and Ruff did not appeal.
On December 29, 2015, Brown filed a motion for summary judgment in the malpractice action. Brown argued Ruff, as the admitted father in numerous legal documents in the dissolution case was, despite paternity testing, obligated to support child and estopped from denying paternity. Brown also argued Ruff's claims for legal malpractice were governed by a one-year statute of limitations. Brown argued any malpractice must have occurred between when Brown was retained until the entry of the decree in 2011 and his malpractice action accrued either when Ruff learned he was not the father or when he learned the county attorney sought to intervene or was allowed to intervene, and all these dates fell outside of the statute of limitations.
On appeal, Brown argues the latest date by which Ruff discovered the alleged malpractice was when Ruff signed his verified response to the county attorney's complaint to intervene in the dissolution case.
In Ruff's response to the motion for summary judgment, he asked that the circuit court take judicial notice of the family court's ruling that equitable estoppel did not apply to establish he was the father of child. He argued that he did not discover his claim until the October 9, 2014, order of the family court. Ruff recounted the facts that demonstrated malpractice. Ruff also noted that mother disclosed to the family court the identity of child's father, who is a professional football player and in a much better financial position to support child than Ruff.
Father expanded on the grounds for malpractice listed in his complaint: (1) the dissolution petition stated there was a minor child born of the marriage, child was three-years-old when they married and he was excluded from being the father; (2) the petition stated he and mother both resided within the Commonwealth within the past 180 days, which was incorrect; (3) the property settlement awarded mother child support even though child was in another person's custody; (4) child never knew Ruff to be her father and never lived with Ruff and mother while they were married and living in Hawaii; (5) Ruff told Brown he had orders from his chain of command to get divorced as soon as possible but Brown was derelict in failing to move for a judgment by default when mother did not respond, he had to fly to Kentucky to get Brown to work on his case, and Brown drafted a settlement agreement that was not favorable to him; and (6) despite informing Brown that child was not of the marriage and he had DNA proof child was not his, Brown failed to counsel him that he had no legal obligation to support child and discovery revealed Brown insisted in emails that Ruff would be forced to pay child support because his name was on the birth certificate and if he wanted a divorce he would have to pay child support. --------
On January 8, 2016, the circuit court held a hearing on the motion. On April 13, 2016, a written order was entered granting Brown's motion for summary judgment on the basis that Ruff's claims were time-barred.
Ruff argues he did not discover or have notice of Brown's malpractice until October 9, 2014, when the family court's findings of fact, conclusions of law and order, were entered. Before that time, he believed paying child support was voluntary and contingent on his ability to see child. He also argues there are genuine issues of material fact as to whether Brown misadvised Ruff as to his rights and obligations under the law and these issues preclude summary judgment before substantive discovery.
Whether an action is barred by the statute of limitation is a pure legal issue which we review de novo. Hill v. State Farm Ins. Co., 390 S.W.3d 153, 155 (Ky.App. 2012).
Kentucky Revised Statutes (KRS) 413.245 provides in relevant part as follows:
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.In Victory Cmty. Bank v. Socol, 524 S.W.3d 24, 27 (Ky.App. 2017) (quoting Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60 (Ky. 2010)), the Court interpreted identical wording in KRS 413.140(3) regarding discovery of a cause of action as being "essentially a codification of the common law 'discovery rule,' which provides that 'a cause of action will not accrue until the plaintiff discovers (or in the exercise of reasonable diligence should have discovered) not only that he has been injured, but also that this injury may have been caused by the defendant's conduct.'" See Blanton v. Cooper Indus., Inc., 99 F.Supp.2d 797, 802 (E.D. Ky. 2000) (explaining Kentucky's "discovery rule focuses not on when a plaintiff has actual knowledge of a legal cause of action, but whether a plaintiff acquired knowledge of existing facts sufficient to put the party on inquiry.").
Ruff analogizes his situation to that which occurred in Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121, 125-26 (Ky. 1994), and claims its holding that the statute of limitations was tolled until "[u]ntil the legal harm became fixed and non-speculative" means that he did not discover the malpractice until the entry of the family court's October 9, 2014 order, as confirmed by the November 12, 2014 order. He argues that until that time, he did not know he would suffer appreciable harm because if the family court had set aside the property settlement agreement his damages for malpractice would have been non-existent or substantially reduced, and after their entry he knew his responsibility to pay child support was not linked to whether he received visitation.
We disagree with Ruff that the holding in Alagia applies to control when he discovered Brown's malpractice. In Faris v. Stone, 103 S.W.3d 1, 5 (Ky. 2003), the Court distinguished the situation in Alagia, where the malpractice arose from legal work that was not part of formal litigation, from the situation before it where there was an underlying court case. In the later situation, the statute of limitations period begins when a client learns his case was negligently practiced. Faris, 103 S.W.3d at 5.
Certainty that the case was negligently practiced is not necessary for the cause of action to accrue. In Conway v. Huff, 644 S.W.2d 333, 334 (Ky. 1982), the action accrued when the wife in a divorce case spoke to another attorney and "discovered that she may have been poorly or inadequately represented[.]"
Arguably, if any malpractice occurred, Ruff should have discovered it when he was ordered to pay child support when the dissolution case became final, as the family court's judgment after the county attorney intervened was merely an enforcement of the dissolution decree. See Hibbard v. Taylor, 837 S.W.2d 500, 502 (Ky. 1992). However, assuming Ruff believed that he was voluntarily paying child support rather than obligated to do so by court order, and Brown's alleged malpractice lay in allowing this obligation to be court-ordered, Ruff was on notice that his obligation was not voluntary when the county attorney intervened in the dissolution action.
At some point after that, Ruff obtained new counsel who advised him that his lack of paternity was a defense to being ordered to pay child support. This was sufficient to put Ruff on notice that he may have been poorly or inadequately represented by Brown allowing him to enter into an agreement in which he became legally obligated to pay child support despite the fact that he was not child's father. Ruff's verification of his answer on February 7, 2014, in which he raised his lack of paternity as a defense, shows that he had knowledge by that time. Because this was more than one year before Ruff filed his malpractice action on March 17, 2015, the circuit court did not err in ruling this action is barred as having been filed more than one year after Ruff discovered the alleged malpractice. No additional discovery would change when Ruff discovered the alleged malpractice.
Accordingly, we affirm the Fayette Circuit Court's order granting summary judgment to Brown on the basis that Ruff's malpractice claim was time-barred.
ALL CONCUR. BRIEF FOR APPELLANT: Robin C. Thorogood
Lexington, Kentucky BRIEF FOR APPELLEE: Edward E. Dove
Lexington, Kentucky