Opinion
2023-CA-1248-MR
09-13-2024
DAVID A. WEINBERG APPELLANT v. LOU ELLA SMITH APPELLEE
BRIEFS FOR APPELLANT: David A. Weinberg, pro se Lexington, Kentucky BRIEF FOR APPELLEE: Sam R. Collins Hazard, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KNOTT CIRCUIT COURT HONORABLE ALISON C. WELLS, SPECIAL JUDGE ACTION NO. 22-CI-00218
BRIEFS FOR APPELLANT:
David A. Weinberg, pro se
Lexington, Kentucky
BRIEF FOR APPELLEE:
Sam R. Collins
Hazard, Kentucky
BEFORE: CETRULO, GOODWINE, AND KAREM, JUDGES.
OPINION
GOODWINE, JUDGE:
David A. Weinberg ("Weinberg"), an attorney proceeding pro se, appeals from a Knott Circuit Court order granting summary judgment in favor of Lou Ella Smith ("Smith") on Weinberg's claim for attorney's fees. After careful review, we affirm.
On December 14, 2022, Weinberg filed a complaint in the Knott Circuit Court alleging Lou Ella retained him to represent her brother in a Knott District Court guardianship case (22-H-0032-10) and failed to pay his fee. Weinberg alleged he and Lou Ella agreed to a set fee of $6,250.00. He alleged Lou Ella paid $300, but failed to pay the balance of $5,950.00. Ultimately, the circuit court granted Lou Ella's motion for summary judgment based on its in camera review of the guardianship case record.
In its order granting summary judgment, the circuit court made the following findings of fact: Rebecca Gayheart daughter of James Edward Gayheart filed a petition for guardianship over her father. Record (R.) at 118. Rebecca "was named as an emergency guardian for all purposes." Id. Weinberg filed a motion in the guardianship case asking the district court to allow him to represent James. Weinberg attached an affidavit in support:
[James] expressed his fear that his girls would try to have him declared incompetent and take over his financial and daily affairs. He did not want this to happen and [James] told me in unequivocal terms that he wanted me to stand up and fight for him and object to any proceedings they would file. He thought that his sister, Lou Ella Smith, was handling his finances appropriately and wanted her to continue to do so. I gave him my word that I would do this. Not only did he express this here to me on this occasion but almost every time we were together personally or talked on the phone.R. at 118-19.
The district court held a hearing in the guardianship case on June 9, 2022. Weinberg appeared and again asked the district court to allow him to represent James. "At that hearing, though not under oath, Mr. Weinberg represented that Mr. Gayheart had been emphatic since his wife's death that he didn't want his girls taking over his life. Mr. Weinberg made clear that he had not spoken with Mr. Gayheart since the guardianship proceeding was instituted." R. at 119 (emphasis added). At the same hearing, the district court "made clear that Mr. Gayheart was represented by court appointed counsel." Id.
Lou Ella was also present at the hearing as she was served with a subpoena and a request to turn over various items of property belonging to James. She did not state that she was represented by anyone, and Weinberg did not speak on her behalf.
Additionally, the district court refused to consider Weinberg's motion for removal of the emergency guardian. Instead, the court stated it would address whether guardianship was needed and who the guardian would be at trial.
On July 7, 2022, the district court held a guardianship bench trial. The court entered a disability judgment finding James wholly disabled in managing his personal affairs and financial resources and appointed Rebecca Gayheart as his guardian. Notably, neither Weinberg nor Lou Ella was present at the trial. Id.
In its order granting summary judgment, the circuit court also found Weinberg did not indicate he had any relationship with Lou Ella during the hearing he appeared at during the guardianship proceeding, and there was no judicial finding that Weinberg represented Lou Ella.
Based on these findings, the circuit court found there was no genuine issue of material fact and granted Lou Ella's summary judgment motion. This appeal followed.
On appeal, Weinberg argues the circuit court erred in granting summary judgment in favor of Lou Ella. CR 56.03 provides summary judgment is appropriate when no genuine issue of material fact exists, and the moving party is therefore entitled to judgment as a matter of law. Summary judgment may be granted when "as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotation marks omitted). "While the Court in Steelvest used the word 'impossible' in describing the strict standard for summary judgment, the Supreme Court later stated that that word was 'used in a practical sense, not in an absolute sense.'" Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (quoting Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992)).
Kentucky Rules of Civil Procedure.
Whether summary judgment is appropriate is a legal question involving no factual findings, so a trial court's grant of summary judgment is reviewed de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71 (Ky. 2010). Under de novo review, we owe no deference to the trial court's application of the law to the established facts. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004).
Weinberg argues he created a genuine issue of fact by filing his own affidavit to support his response to Lou Ella's motion for summary judgment. His argument on appeal is confusing and overlooks the fact that he submitted contradictory affidavits to the district court and circuit court. It is well established that "an affidavit which merely contradicts earlier testimony cannot be submitted for the purpose of attempting to create a genuine issue of material fact." Lipsteuer v. CSX Transp., Inc., 37 S.W.3d 732, 736 (Ky. 2000).
Based on our review, the district court did not permit Weinberg to represent James during the guardianship proceedings, so whether he made an agreement with Lou Ella to pay his fee is immaterial. Instead, he merely filed a motion and appeared at a district court hearing asking to be allowed to represent James. Weinberg's district court affidavit stated that James wanted Weinberg to represent him, and Lou Ella handled his finances. At the hearing, Weinberg also stated he had not spoken with Gayheart since the guardianship petition was filed. Additionally, James was represented by appointed counsel.
In his affidavit submitted to the circuit court, Weinberg asserts that Lou Ella retained him to represent James during the guardianship proceedings. Weinberg never mentioned this arrangement during the district court proceedings, and he never produced a written agreement. Thus, as Weinberg merely attempted to create a genuine issue of material fact by submitting a self-serving affidavit contradicting a prior self-serving affidavit, the circuit court correctly granted summary judgment in favor of Lou Ella.
For the foregoing reasons, we affirm the judgment of the Knott Circuit Court.
ALL CONCUR.