Rlb Properties, Ltd. v. Seiller Waterman, LLC

AND
2018-SC-000558-DG
SEILLER WATERMAN, LLC; PAMELA M. APPELLANTS/CROSS-APPELLEES
GREENWELL; GORDON C. ROSE; AND
PAUL J. HERSHBERG
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2017-CA-000024-MR
JEFFERSON CIRCUIT COURT NO. 16-CI-002522
RLB PROPERTIES, LTD. APPELLEE/ CROSS-APPELLANT
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING IN PART, REVERSING IN PART, AND REINSTATING
RLB Properties, Ltd. filed a complaint against the law firm of Seiller
Waterman, LLC and three of its attorneys based upon their allegedly wrongful
acts undertaken on behalf of the firm’s clients, Skyshield Roof and Restoration,
LLC and Jacob Blanton. The challenged actions included the filing of an
invalid materialman’s and mechanic’s lien against commercial property owned
by RLB Properties and the subsequent filing of a third-party complaint against
»
RLB Properties. RLB Properties’ complaint against Seiller Waterman alleged
wrongful use of civil proceedings and abuse of civil process; civil conspiracy;
slander of title; violation of KRS1 434.155 by filing an illegal lien; negligence;
and negligent supervision. The Jefferson Circuit Court dismissed all of these
claims either for failure to state a claim upon which relief can be granted or for
failure to file timely under the applicable statute of limitations. The Court of
Appeals affirmed the dismissals, except for the slander of title, civil conspiracy,
and KRS 434.155 violation claims, finding that KRS 413.245 would not time
bar the claims if malice were proven.
On discretionary review, we affirm in part and reverse in part. We affirm
the Court of Appeals’ decision that a professional negligence action may not be
brought against an attorney by a party who is neither the client nor an
intended third-party beneficiary of the attorney’s work. We further affirm that
when pleading wrongful use of civil proceedings against an attorney or law
firm, neither earning attorney fees nor filing a claim seeking damages on behalf
of a client is an improper purpose allegation sufficient to survive a motion to
dismiss. Finally, we reverse the Court of Appeals’ decision that KRS 413.245,
the one-year statute of limitations applicable to the rendering of professional
services, does not apply to claims against attorneys when malice is alleged.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying contract dispute regarding building repairs
Skyshield Roof and Restoration, LLC (Skyshield), an Indiana limited
liability company, engaged Seiller Waterman to represent it in various matters
1 Kentucky Revised Statute.
2
on or about March 10, 2014. Around that same date, Pamela M. Greenwell, a
member of the law firm, prepared and eventually executed and filed with the
Kentucky Secretary of State, a Certificate of Authority, authorizing Skyshield to
lawfully transact business in Kentucky.2 The genesis of the present action was
a contract dispute between Skyshield and RLB Properties (RLB) regarding
repairs to a commercial property.
The Marmaduke Building, a property owned by RLB in downtown
Louisville, suffered wind damage in 2012 and water damage in 2014. RLB
entered into a contract with Skyshield to repair the building. Sol Azteca’s
Louisville, Inc. (Sol Azteca), a tenant in the building, also contracted with
Skyshield and Jacob Blanton, Skyshield’s sole member, to repair damage to the
Sol Azteca restaurant caused by frozen water pipes. In June 2014, Sol Azteca
filed suit against Skyshield and Blanton alleging, among other things, that
Skyshield and Blanton breached the contract by failing to perform repairs in a
good and workmanlike manner and by failing to complete repairs. Sol Azteca’s
complaint further alleged that RLB had already paid Skyshield hundreds of
thousands of dollars to repair the building.
On August 5, 2014, Skyshield filed a $1,500,000 materialman’s and
mechanic’s lien against the Marmaduke Building in the Jefferson County
Clerk’s Office for labor rendered and materials actually furnished after
2 In the Certificate, Greenwell agreed that S W Agent, LLC would serve as the
service of process agent for Skyshield. S W Agent, LLC is a Kentucky limited liability
company whose members and managers are also members of or attorneys associated
with Seiller Waterman, including Greenwell.
3
provision for all just credits and set-offs. The lien, attested to by Blanton, was
prepared by Gordon C. Rose, an attorney associated with Seiller Waterman,
and was lodged for record by the law firm. On August 12, 2014, Greenwell and
Paul J. Hershberg, another attorney with Seiller Waterman, filed a verified
third-party complaint against RLB on behalf of Skyshield in the suit initiated
by Sol Azteca. The complaint alleged RLB owed Skyshield a substantial
amount for services performed under the parties’ contract.
RLB retained counsel and filed a response to the third-party complaint,
denying that RLB owed Skyshield any money. RLB also filed a counterclaim
against Skyshield and Blanton, alleging 1) breach of contract, 2) defective
workmanship, 3) strict liability, 4) fraud, 5) fraud in the inducement, 6)
conversion of entrusted money, 7) conversion of property, 8) unjust
enrichment, and 9) slander of title.
On January 29, 2015, RLB’s counsel wrote a letter to Seiller Waterman
advising that the lien was satisfied at the time it was filed, stating that it was
invalid on its face, and demanding that it be immediately released. Seiller
Waterman did not respond to the letter on Skyshield/Blanton’s behalf. On
March 6, 2015, RLB’s counsel filed a motion in the lawsuit to dissolve the
materialman’s and mechanic’s lien.
Less than a week later, on March 12, 2015, Seiller Waterman filed a
motion to withdraw as counsel for Skyshield and Blanton, citing irreconcilable
differences with its clients. The trial court orally granted Seiller Waterman’s
motion on March 16, 2015, and further granted Skyshield and Blanton thirty
4
days in which to obtain new counsel. For reasons that are not apparent in the
record, the trial court’s written order was not entered by the clerk until May 29,
2015. Neither Seiller Waterman nor anyone else acting on behalf of Skyshield
and Blanton ever responded to RLB’s motion to dissolve the materialman’s and
mechanic’s lien.
On May 29, 2015, the trial court entered its order granting the motion to
dissolve the lien, stating:
The Materialman’s and Mechanic’s Lien Statement (“Lien
Statement”) recorded against the Marmaduke Building by
SkyShield Roof and Restoration, LLC (“SkyShield”) on August 5,
2014 is invalid on its face because SkyShield cannot substantiate
that the balance remaining due for labor rendered, and materials
actually furnished, after provisions for all just credits and set-offs,
is $1.5 million, or any amount. Therefore, the Court orders that
the lien is dissolved.
At the time the Lien Statement was filed on August 5, 2014,
the underlying lien had been satisfied because RLB paid money to
SkyShield in excess of the amount of labor performed and
materials provided, plus expenses. SkyShield was given proper
notice that the lien was satisfied and should be released no later
than January 29, 2015 when counsel for RLB sent a letter to that
effect to counsel for Sky Shield. Accordingly, the Court hereby
directs and authorizes the Jefferson County Master Commissioner
to execute and file with the Jefferson County Clerk a release of the
lien.
Several weeks later, the trial court ordered Skyshield and Blanton to pay RLB
the attorney fees it incurred as a result of the filing of the motion to dissolve
the lien.
After a hearing and finding Skyshield and Blanton in default, the trial
court entered a July 31, 2015 judgment against them and in favor of RLB on
RLB’s counterclaim and dismissed Skyshield’s third-party complaint with
5
prejudice. The trial court awarded RLB $924,767.39 in compensatory
damages, $2,000,000 in punitive damages, $68,257.29 for attorney fees, and
$63,400 in statutory fees under KRS 382.365 for Skyshield’s and Blanton’s
failure to timely release the materialman’s and mechanic’s lien.3
Compensatory damages consisted of $556,583.84 for monies paid to Skyshield
and Blanton for which no labor was rendered or materials furnished;4
$267,779.62 for amounts expended by RLB to complete the repairs;
$60,403.93 to remedy defective workmanship by Skyshield and Blanton; and
$40,000 for the value of personalty converted by Skyshield and Blanton.
The current action against Seiller Waterman
On May 31, 2016, RLB filed a verified complaint against Seiller
Waterman, LLC; Pamela M. Greenwell; Gordon C. Rose; and Paul J. Hershberg
(collectively “Seiller Waterman”) based upon their legal representation of
Skyshield and Blanton in the underlying building repair dispute and the
preparation of the materialman’s and mechanic’s lien. The complaint alleged
the statements contained in the lien to the effect RLB owed Skyshield
$1,500,000 for labor rendered and materials actually furnished were
groundless, were material misstatements of fact and were false, with all of this
being information which Seiller Waterman either knew or should have known.
RLB claimed wrongful use of civil proceedings (WUCP) and abuse of civil
3 All awards were to bear interest at the rate of 12% compounded annually until
paid. ,
4 This included $47,809.65 prejudgment interest.
6
process; civil conspiracy in filing the mechanic’s lien and the verified third-
party complaint;5 slander of title; filing of an illegal lien in violation of KRS
434.155(1) (supporting a statutory action pursuant to KRS 446.070);
negligence; and negligent supervision. Seiller Waterman moved the trial court
to dismiss all of RLB’s claims pursuant to CR6 12.02 and CR 12.03. The trial
court granted Seiller Waterman’s motion in a detailed Opinion and Order
entered on November 30, 2016. The trial court dismissed RLB’s claims for
negligence and negligent supervision because a client’s adversary in litigation is
not in the class of nonclient intended beneficiaries who may bring a negligence
claim against an attorney; RLB’s claim for WUCP because RLB failed to allege
the required improper purpose; and RLB’s other claims as being time barred by
KRS 413.245.7
As noted, the Court of Appeals affirmed the trial court in part and
reversed and remanded in part. The Court of Appeals found the trial court
erred by dismissing the claims revolving around the filing of the mechanic’s
lien, i.e., the slander of title, the filing of an illegal lien, and the civil conspiracy
claims, but affirmed the trial court’s dismissal of the other claims.8
5 RLB alleges that the conspiracy between Seiller Waterman and Skyshield and
Blanton was designed to extort money from RLB.
6 Kentucky Rule of Civil Procedure.
7 Having concluded that the slander of title claim was barred due to the one-
year statute of limitations, the trial court concluded that the civil conspiracy claim,
which was premised on a valid slander of title claim, could not survive.
8 The trial court’s dismissal of RLB’s abuse of process and negligent supervision
claims, affirmed by the Court of Appeals, is not before this Court.
7
Both Seiller Waterman and RLB petitioned this Court for discretionary
review. We granted Seiller Waterman’s motion to consider whether the Court of
Appeals erred by concluding an allegation of malice removes a claim involving
the rendering of legal services from the one-year limitation period set forth in
KRS 413.245. We granted RLB’s motion to address whether the trial court and
the Court of Appeals erred by concluding a) that a litigant may not assert a
negligence claim against the attorney who represented that litigant’s former
adversary and b) that as to the wrongful use of civil proceedings claim, RLB did
not plead facts regarding the improper purpose element sufficient to survive a
motion to dismiss. We begin with the issues raised by RLB.
ANALYSIS
CR 8.01 requires a complaint to have a short and plain statement of the
claim showing that the pleader is entitled to relief. The purpose of the
complaint is to give the defendant adequate notice of the claims and the factual
grounds upon which they rest. Cincinnati, Newport & Covington Transp. Co. v.
Fischer, 357 S.W.2d 870, 872 (Ky. 1962); Nat. Res. & Envtl. Prot. Cabinet v.
Williams, 768 S.W.2d 47, 51 (Ky. 1989). “[T]he general rule of pleading [is] that
facts and not conclusions should be pleaded, and that, if only the latter is
contained in the pleading, it will not authorize the granting of relief, unless
waived or cured ... by some recognized method . . . .” Begley v. Jones, 37
S.W.2d 44, 45 (Ky. 1931); see Rose v. Davis, 157 S.W.2d 284, 284 (Ky. 1941).
In lieu of filing an answer, CR 12.02 allows a defendant to file a motion
to dismiss the complaint for failure to state a claim upon which relief can be
8
granted. That motion admits as true the material facts of the complaint.
Upchurch v. Clinton Cnty., 330 S.W.2d 428, 429-30, 432 (Ky. 1959). If granted,
the motion serves to expediently terminate litigation, however, when ruling on a
motion to dismiss, the court’s “attention . . . should be directed only to the
sufficiency of the allegations in the complaint.” Ewell v. Central City, 340
S.W.2d 479, 480 (Ky. 1960). A “complaint should not be dismissed unless it
appears to a certainty that [the] plaintiff would not be entitled to relief under
any statement of facts which could be proved in support of the claim.”
Burkhart v. Community Med. Ctr., 432 S.W.2d 433, 434 (Ky. 1968). We review
the trial court’s dismissal, as a matter of law, de novo. Fox v. Grayson, 317
S.W.3d 1, 7 (Ky. 2010).
I. The trial court properly dismissed RLB’s wrongful use of civil
proceedings claim because it failed to allege an improper
purpose.
The trial court dismissed RLB’s wrongful use of civil proceedings claim
for failure to plead allegations sufficient to maintain a WUCP cause of action,
specifically failure to plead an improper purpose. In its complaint, RLB alleged
that Seiller Waterman acted with an improper purpose when it filed the third-
party complaint in the underlying building repair dispute because the law firm
intended to extort money from RLB by enriching itself through attorney fees
and by enriching its clients, presumably through an improper damage
recovery. We agree with the trial court and Court of Appeals that these
particular improper purpose allegations were not sufficient to survive the
motion to dismiss.
9
RLB’s wrongful use of civil proceedings claim alleged:
SW, Greenwell, and Hershberg knew or should have known
the Claims set forth in the Verified Third-Party Complaint in the
Lawsuit by Skyshield and/or Blanton were completely void of any
factual basis and/or support and were not supported by law or any
good faith argument for the extension of existing law. Indeed, said
Defendants knew or should have known at the time they filed the
Verified Third Party Complaint against RLB in the Lawsuit that not
only did RLB not owe Skyshield and Blanton any monies, but that
Skyshield and Blanton had received hundreds of thousands of
dollars from RLB for labor and materials never rendered or
furnished. In addition, during the litigation in the Lawsuit prior to
the withdrawal as counsel by Defendants, Skyshield and Blanton
admitted and acknowledged they did not render labor or perform
services to the Marmaduke Building for RLB in excess of the
amount of the money Skyshield had previously been paid by RLB.
The filing of the Third Party Complaint against RLB was
undertaken by SW, Greenwell and Hershberg for the improper and
unlawful purpose of extorting money from RLB such that said
Defendants could enrich themselves in the form of attorney fees,
and enrich their clients, Blanton and Skyshield as well. ... In
addition, the conduct of said Defendants was malicious, oppressive
and wanton and was designed to damage RLB ....
The purpose of a WUCP claim - or as it is sometimes referred to a
malicious prosecution claim9 - is to provide relief in cases in which a plaintiff
brings a groundless suit and has an improper motive for bringing it. Simply
put, a malicious prosecution or WUCP action protects “the interest in freedom
from unjustifiable litigation.” William L. Prosser, The Law of Torts, § 119, at
834 (4th ed. West 1971). However, to ensure that litigants with valid claims
will not be deterred from bringing their claims to court for fear of a subsequent
9 As explained more fully below, malicious prosecution has been used to
describe claims subsequent to wrongful criminal and civil proceedings but the more
precise terminology for cases such as this involving prior proceedings that are solely
civil is that used by RLB, wrongful use of civil proceedings.
10
lawsuit, the remedy is not favored, and its requirements are strictly construed
against the malicious prosecution or WUCP plaintiff. See Martin v. O’Daniel,
507 S.W.3d 1, 7 (Ky. 2016).
As this Court recently stated with regard to a claim brought subsequent
to a dismissed criminal action:
A malicious prosecution action may be established by showing
that:
1) the defendant initiated, continued, or procured a criminal or
civil judicial proceeding, or an administrative disciplinary
proceeding against the plaintiff;
2) the defendant acted without probable cause;
3) the defendant acted with malice, which, in the criminal context,
means seeking to achieve a purpose other than bringing an
offender to justice; and in the civil context, means seeking to
achieve a purpose other than the proper adjudication of the claim
upon which the underlying proceeding was based',
4) the proceeding, except in ex parte civil actions, terminated in
favor of the person against whom it was brought; and
5) the plaintiff suffered damages as a result of the proceeding.
Id. at 11-12 (emphasis added) (clarifying the elements of the cause of action as
discussed in Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981)).
Raine was a malicious prosecution case brought by two physicians
against two attorneys who had filed a baseless malpractice suit against them.
Addressing jury instructions that produced a verdict in favor of the plaintiff
physicians, this Court pronounced the elements of malicious prosecution for
use in both criminal and civil contexts. Id. A few years later the Court viewed
Raine as part of the developmental path of the tort flowing from wrongful use of
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civil proceedings. Prewitt v. Sexton, 777 S.W.2d 891, 894-95 (Ky. 1989) (stating
“(i)n Raine . . ., our Court referred to the Restatement (Second) of Torts as
authority; in Mapother & Mapother, P.S.C. v. Douglas, [750 S.W.2d 430, 431
(Ky. 1988)], we adopted it as law on this subject]]”).10
Mapother distinguished malicious prosecution claims based on prior
criminal proceedings from the more appropriately named tort of “wrongful use
of civil proceedings” invoked where the prior proceedings were solely civil.
More importantly, the Mapother Court relied on the Restatement (Second) of
Torts, Wrongful Use of Civil Proceedings, § 674 General Principle, § 675
Existence of Probable Cause, and § 676 Propriety of Purpose (1977) in outlining
the WUCP tort. The “probable cause” and “improper purpose” principles set
out in Mapother and subsequently expounded on in Prewitt are central to
resolution of this case.
The Restatement sections relied upon by the Mapother Court remain
unchanged. Pertinently, § 674 states that one is subject to liability to another
for wrongful civil proceedings if “he acts without probable cause, and primarily
for a purpose other than that of securing the proper adjudication of the claim
in which the proceedings are based.” Section 675 states that one has probable
cause for initiating a civil proceeding “if he reasonably believes in the existence
10 Although our expression of the elements makes no distinction, see Raine, 621
S.W.2d at 899, and Martin, 507 S.W.3d at 11-12, in both Mapother, 750 S.W.2d at
431, and Prewitt, 777 S.W.2d at 983-94, we noted a preference for “wrongful use of
civil proceedings” as more accurate terminology to be used in cases such as this which
do not involve prior criminal proceedings.
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of the facts upon which the claim is based, and . . . correctly or reasonably
believes that under these facts the claim may be valid under the applicable
law.” The “Propriety of Purpose” provision, § 676 reiterates: “To subject a
person to liability for wrongful civil proceedings, the proceedings must have
been initiated or continued primarily for a purpose other than that of securing
the proper adjudication of the claim on which they are based.” 750 S.W.2d at
431.
With those general principles identified, we turn to the Restatement
(Third) of the Law Governing Lawyers § 57 Nonclient Claims—Certain Defenses
and Exceptions to Liability (2000), which states the rule regarding malicious
prosecution or wrongful use of civil proceedings as applied to lawyers:
A lawyer representing a client in a civil proceeding or procuring the
institution of criminal proceedings by a client is not liable to a
nonclient for wrongful use of civil proceedings or for malicious
prosecution if the lawyer has probable cause for acting, or if the
lawyer acts primarily to help the client obtain a proper
adjudication of the client’s claim in that proceeding.
Both the Restatement (Second) of Torts and the Restatement (Third) of the
Law Governing Lawyers contain like commentary explaining the probable
cause and improper purpose elements as applied to attorneys, with both also
providing commentary stating that the collection of attorney fees is not an
improper purpose. The Restatement (Second) of Torts § 674 cmt. d (1977)
states:
An attorney who initiates a civil proceeding on behalf of his client
or one who takes any steps in the proceeding is not liable if he has
probable cause for his action (see § 675); and even if he has no
probable cause and is convinced that his client’s claim is
13
unfounded, he is still not liable if he acts primarily for the purpose
of aiding his client in obtaining a proper adjudication of his claim.
(See § 676). An attorney is not required or expected to prejudge his
client’s claim, and although he is fully aware that its chances of
success are comparatively slight, it is his responsibility to present
it to the court for adjudication if his client so insists after he has
explained to the client the nature of the chances.
If, however, the attorney acts without probable cause for belief in the
possibility that the claim will succeed, and for an improper purpose,
as, for example, to put pressure upon the person proceeded against
in order to compel payment of another claim of his own or solely to
harass the person proceeded against by bringing a claim known to
be invalid, he is subject to the same liability as any other person.
There is one situation that sometimes arises in civil proceedings
but does not occur in criminal proceedings. An attorney who
initiates civil proceedings on a contingent-fee basis with his client
is not for that reason to be charged with an improper motive or
purpose, since the contingent fee is a legitimate arrangement and
the interest of the attorney in receiving it is merely the ordinary
interest of a professional man in being paid for his services. But
by obtaining the authority of the client to bring the action he
procures its initiation; and if he does so without probable cause
and for an improper purpose other than the fee, he is subject to
liability under the rule stated in this Section. . . .
(Emphasis added.) Accord Restatement (Third) of the Law Governing Lawyers §
57 cmt. d (2000) (citing Restatement (Second) of Torts §§ 674, 675) (also stating,
“A desire to earn a contingent or other fee does not constitute an improper
motive.”); see also cmt. g discussing attorney fees in the context of a lawyer
advising or assisting a client to break a contract (“So long as the lawyer acts or
advises with the purpose of promoting the client’s welfare, it is immaterial that
the lawyer hopes that the action will increase the lawyer’s fees or reputation as
a lawyer or takes satisfaction in the consequences to a nonclient.”).
When addressing wrongful use of civil proceedings actions against
attorneys, we are mindful of an attorney’s many responsibilities, including
14
promoting access to the legal system and administration of justice. See Ky.
Supreme Court Rule (SCR) 3.130, Rules of Professional Conduct; Hill v.
Willmott, 561 S.W.2d 331, 334 (Ky. App. 1978) (quoting Norton v. Hines, 123
Cal. Rptr. 237 (Cal. App. 1975)). Moreover, an attorney is required under our
ethical and civil rules to avoid filing a suit for any improper purpose, such as to
harass or to cause needless increase in the cost of litigation, and if the attorney
does so in violation of the rules then sanctions may be imposed. SCR 3.130,
CR 11. When balancing the attorney’s role to assist with a client’s access to
courts and the impact of meritless lawsuits, the attorney’s duty to loyally and
zealously represent his client must outweigh an adversary’s desire to avoid
legal action. In short, we find no reason to disfavor an attorney incidentally
earning fees while representing a client even if the client’s cause cannot and
ultimately does not prevail.
Thus, we agree with the philosophy represented in the Restatement
(Second) of Torts and the Restatement (Third) of the Law Governing Lawyers that
an attorney seeking to collect an attorney fee in the usual course of
representing a client is not acting for an improper purpose, a necessary
element of the wrongful use of civil proceedings claim. Even if the attorney
acts without probable cause to believe the client’s claim will succeed, the
improper purpose which may subject an attorney to liability to a nonclient
must be something other than simply earning a fee.11 Here, then, RLB’s
11 Courts in other jurisdictions faced with similar WUCP claims against
attorneys have adhered to this rule. See, e.g., LoBiondo v. Schwartz, 970 A.2d 1007,
1033-37 (N.J. 2009) (outlining the circumstances in which an attorney may be liable
15
allegation that Seiller Waterman initiated the underlying lawsuit for Skyshield
against RLB to earn fees may not be viewed as the statement of an improper
purpose which satisfies the WUCP element. Furthermore, merely describing
the law firm’s earning of fees as “extorting” money - a verb freighted with
criminal connotations - adds nothing because the allegation is still factually
insufficient. Other factual allegations beyond the customary, aspects of client
representation, i.e., performing legal services for a fee, are necessary to support
the improper purpose element; without those additional facts the claim stated
is an inappropriate pleading of a legal conclusion upon which relief may not be
granted. Begley, 37 S.W.2d at 45.
In response to these clear legal principles regarding improper purpose in
the context of a WUCP claim against a former adversary’s attorney, RLB argues
that its improper purpose pleading also includes allegations that Seiller
Waterman filed the lien without performing any background research and
similarly filed a baseless, frivolous lawsuit. RLB’s argument is apparently
based on the premise that the same evidence which establishes lack of
probable cause may support a reasonable inference that a party or his attorney
acted for a primary purpose other than securing an adjudication of the party’s
for malicious use of process and explaining that an attorney’s improper purpose must
be something other than the motivation to earn a fee); Nave v. Newman, 140 A.3d
450, 456 (D.C. 2016) (explaining that only in rare circumstances will a party be
justified in suing his opponent’s lawyer and providing that as long as the lawyer acts
with the purpose of promoting the client’s welfare, it is immaterial that the lawyer
hopes the action will increase the lawyer’s fees).
16
claims when filing and pursuing the underlying action. This confluence of two
separate elements of a WUCP claim is legally incorrect.
RLB essentially posits that the inference of an improper purpose based on
its lack of probable cause allegation and the direct improper purpose allegation
as to Seiller Waterman’s earning legal fees combine to provide adequate
support for the improper purpose element of its WUCP claim. Having already
decided that RLB’s allegation that Seiller Waterman initiated the underlying
action to earn legal fees is insufficient to support the improper purpose
element, we consider whether an inference of an improper purpose arising from
a lack of probable cause allegation is sufficient for the WUCP claim to survive
the motion to dismiss.
In a traditional malicious prosecution action, the premise that malice
may be inferred from lack of probable cause has been part of our jurisprudence
for over a century. For example, Wood v. Weir, 44 Ky. 544, 546 (1845), a civil
malicious prosecution case against an attorney, states that “[mjalice may be
implied from the want of probable cause, but this implication may be explained
and repelled by facts and circumstances indicating a fair and legitimate
purpose, and honest pursuit of a claim believed to be just.” Mosier v.
McFarland provides a more complete expression of the rule:
In an action for malicious prosecution, both malice on the
part of the defendant and want of probable cause for his
prosecution of the plaintiff must be alleged and proved, although
malice may be inferred from proof of the absence of probable
cause. The jury, however, may not invariably imply malice from
the mere want of probable cause if all the facts disclosed lead to a
different conclusion. If malice was to be inferred from want of
17
probable cause alone, then there would be no necessity for having
a distinct requirement that malice be proven, for want of probable
cause would then be the only element necessary to be established.
106 S.W.2d 641, 642 (Ky. 1937) (internal citations omitted).
Thus, in a malicious prosecution or WUCP action, lack of probable cause
alone cannot support a legally sufficient inference that the attorney acted with
an improper purpose. Independent evidence of malice is required. In this
instance, because the earning of attorney fees may not be considered
independent evidence of an improper purpose, any inference of malice from
RLB’s lack of probable cause allegations is not sufficient to support the WUCP
improper purpose element.12
RLB also argues before this Court that the source of payment from which
Seiller Waterman sought attorney fees is a distinguishing factor in the WUCP
analysis. Specifically, RLB emphasizes that the law firm demanded in the
third-party complaint filed on behalf of Skyshield/Blanton that its attorney fees
be paid by RLB. We find the argument unpersuasive. First, RLB did not make
that “source of payment” allegation within the statement of the WUCP claim in
its complaint. Second, even if Seiller Waterman’s demand for attorney fees
from RLB were part of the factual allegations within RLB’s complaint, a source
of payment other than the law firm’s client does not change the underlying
premise that an attorney seeking payment for professional services rendered is
12 Indeed, after reviewing the allegations in this case the trial court, citing
Prewitt, 777 S.W.2d at 894, expressly noted that “improper purpose will not be
inferred from lack of probable cause.”
18
not acting with an improper purpose. Indeed, RLB itself references its
judgment for recovery of attorney fees from Skyshield and Blanton in the
underlying action, noting that “Quite often, opposing attorneys recover and are
the beneficiary of attorney fees from the opposing party.”
Finally, the preceding analysis also disposes of RLB’s allegation that
Seiller Waterman improperly sought to extort money to enrich its clients.
Without any factual allegations showing how Seiller Waterman sought to
“extort” money beyond the filing of the claim seeking damages (an ordinary part
of securing a proper adjudication of a claim), RLB’s allegation is not sufficient.
Begley, 37 S.W.2d at 45. Again, although RLB seeks to use the allegation that
Seiller Waterman filed a fraudulent lien to support its extortion claim, this
allegation, assuming it may support the inference of lack of probable cause in
filing the third-party complaint, cannot support the improper purpose element.
As explained supra, without a proper independent allegation of an improper
purpose, any improper purpose which may be inferred from a lack of probable
cause is not sufficient to maintain the malicious prosecution claim.
In summary, neither the desire to earn attorney fees nor the filing of a
claim seeking damages on behalf of a client constitutes an improper purpose
sufficient to sustain a WUCP action against an attorney who represented a
former adversary. Additionally, the record in this case contains no factual
allegations to support the claim that Seiller Waterman was “extorting money”
in some fashion beyond filing what was eventually established as a meritless
claim against RLB. Under these circumstances, the trial court properly
19
concluded that RLB’s complaint did not allege any facts, which when taken as
true under our CR 12.02 standard, would be sufficient to establish the
improper purpose element of a wrongful use of civil proceedings claim.
Consequently, the trial court did not err when it dismissed RLB’s WUCP claim
for failure to state a claim upon which relief can be granted, and the Court of
Appeals properly affirmed on that issue.
II. The trial court properly dismissed the negligence claim
because Seiller Waterman did not owe RLB a duty.
The trial court dismissed RLB’s negligence claim against Seiller
Waterman because RLB was not a client of the firm and was not an intended
third-party beneficiary of its legal work. As a matter of law, a party such as
RLB is not entitled to assert a negligence claim against the legal counsel who
represented an opposing party in prior litigation, because no duty flows from
that counsel to their client’s adversary. Thus, RLB’s negligence claim against
Seiller Waterman, former counsel for Skyshield and Blanton, clearly failed to
state a claim upon which relief could be granted.
In the negligence count of its complaint, RLB alleged that Seiller
Waterman “owed certain duties to Skyshield and Blanton which by operation of
law, extend to RLB, to act in a reasonably prudent manner with regard to their
conduct and actions.” Before the trial court, Seiller Waterman cited Hill v.
Willmott, 561 S.W.2d 331, in support of its argument that RLB’s negligence
20
claim must be dismissed because any duty owed to Seiller Waterman’s clients
did not extend to others and certainly not to their clients’ adversary. We agree.
In Hill, a medical doctor brought suit alleging that Willmott, opposing
counsel in an underlying malpractice action, failed to investigate the facts and
law prior to filing suit, id. at 335, and thereby violated his duty under the then-
Rules of Appellate Procedure to avoid the appearance of professional
impropriety, id. at 333. The Hill Court explained that the violation of the duty
set forth in the Rules - which embodied the principles enunciated in the
American Bar Association’s Code of Professional Responsibilities and
established the minimum level of competence for the protection of the public -
does not necessarily give rise to a cause of action. Id. at 333-34. Assuming an
attorney owes a duty independent of that set forth in the Rules and Code, the
Hill Court considered to whom that duty is owed and concluded: “An attorney
may be liable for damage caused by his negligence to a person intended to be
benefited by his performance irrespective of any lack of privity . . . .” Id. at 334
(quoting Donald v. Garry, 97 Cal. Rptr. 191, 192 (Cal. App. 1971); emphasis
added). Needless to say, an adverse party in a lawsuit is not the intended
beneficiary of the work an attorney performs on behalf of his or her own client.
As the Hill Court properly concluded, an adverse party’s action against an
attorney for negligence (or malpractice) in improperly initiating suit is limited to
one for malicious prosecution or wrongful use of civil proceedings. Id. at 334-
35 (citing Norton, 123 Cal. Rptr. 237; Rose v. Davis, 157 S.W.2d 284 (Ky.
1941)). Otherwise, “allow[ing| a party to bring a negligence action against the
21
adverse attorney would have a chilling effect on the number of meritorious
claims filed and this cannot be tolerated under our system.” Id. at 335.
RLB argues that whether a nonclient may sue prior opposing counsel is
unclear in our caselaw and cites Hill as standing for the proposition that under
the facts of this case Seiller Waterman could be held liable to RLB for
negligence. RLB emphasizes the portion of Hill quoting Rose, 157 S.W.2d 284:
An attorney is not ordinarily liable to third persons for his acts
committed in representing a client. It is only where his acts are
fraudulent or tortious and result in injury to third persons that he is
liable. To hold an attorney responsible for damages occasioned by
an erroneous judicial order, even though the error be induced by
him, would make the practice of law one of such financial hazard
that few men would care to incur the risk of its practice.
Hill, 561 S.W.2d at 334-35.
We must disagree with RLB. While the quoted language viewed in
isolation suggests that our predecessor Court did not limit nonclient suits
against attorneys to malicious prosecution or WUCP actions, a full reading of
the case dispels that notion. Furthermore, this Court noted in Mapother that
Rose and Hill (and Raine for that matter) are cases in which this Court and the
Court of Appeals have held that “ordinary elements of negligence do not apply
in cases involving suits by opposing litigants or non-parties against the
attorney in that suit.” 750 S.W.2d at 431. Upon review, we reiterate this time-
honored rule.
Although urged by RLB to adopt a rule allowing nonclient negligence
actions, we remain convinced that the existing approach is necessary to
maintain free access to our courts. See Hill, 561 S.W.2d at 334-35 (explaining
22
the public policy reasons for disallowing negligence actions against attorneys
by a prior adversary). Because Kentucky law does not recognize a negligence
action against the attorney for a prior adversary in litigation, the trial court
properly dismissed RLB’s negligence claim against Seiller Waterman.
Accordingly, we affirm the Court of Appeals on this issue as well.
III. The trial court properly dismissed RLB’s slander of title, civil
conspiracy, and filing an illegal lien claims as time barred.
The trial court dismissed three of RLB’s claims - the KRS 434.155 illegal
lien claim, the slander of title claim, and the dependent civil conspiracy claim13
- as being time barred by KRS 413.245, the statute of limitations applicable to
actions arising from the rendering of professional services. The Court of
Appeals reversed, holding that it would be unconscionable for an attorney to
escape slander of title Eability under the one-year limitation in KRS 413.245
through the pretense of providing professional services if indeed a
materialman’s and mechanic’s lien were filed for some malicious purpose. In
that court’s view, a slander of title claim is then outside the scope of negligent
performance of professional services, rendering KRS 413.245 inapplicable.
Because RLB’s slander of title claim against Gordon Rose and Seiller Waterman
alleged that the lien was filed without a factual basis and done maliciously to
damage RLB, and the claim was dismissed through a motion for judgment on
the pleadings, the Court of Appeals reversed the trial court and remanded for
discovery on the claim. Employing the same reasoning, the Court of Appeals
13 RLB does not argue that the civil conspiracy is an independent claim.
23
concluded RLB’s KRS 434.155(1) wrongful lien and civil conspiracy claims,
which also contained allegations that Seiller Waterman and its attorneys acted
maliciously, were not time barred.
On discretionary review to this Court, Seiller Waterman argues that
allegations of malice do not remove a claim from the reach of KRS 413.245.
RLB continues to insist that the one-year statute of limitations in KRS 413.245
cannot bar its slander of title claim because Seiller Waterman did not render
professional services either directly to or for the intended benefit of RLB.
Agreeing with the trial court’s analysis regarding the applicable statute of
limitations, we reverse the Court of Appeals on this point.
KRS 413.245 states in full:
Notwithstanding any other prescribed limitation of actions which
might otherwise appear applicable, except those provided in KRS
413.140, 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. Time shall not commence against a party under
legal disability until removal of the disability.
“Professional services” are defined as “any service rendered in a profession
required to be licensed, administered and regulated as professions in the
Commonwealth of Kentucky, except those professions governed by KRS
413.140.” KRS 413.243. Indisputably, the practice of law is such a profession
whose members’ services are covered by KRS 413.245." Abel v. Austin, 411
S.W.3d 728, 737 (Ky. 2013).
24
To address whether allegations that professional services were rendered
with malice would remove a claim against an attorney from the scope of KRS
413.245, we turn to principles of statutory construction.
In construing statutes, our goal, of course, is to give effect to
the intent of the General Assembly.1 We derive that intent, if at all
possible, from the language the General Assembly chose, either as
defined by the General Assembly or as generally understood in the
context of the matter under consideration. We presume that the
General Assembly intended for the statute to be construed as a
whole, for all of its parts to have meaning, and for it to harmonize
with related statutes. We also presume that the General Assembly
did not intend an absurd statute or an unconstitutional one. Only
if the statute is ambiguous or otherwise frustrates a plain reading,
do we resort to extrinsic aids such as the statute’s legislative
history; the canons of construction; or, especially in the case of
model or uniform statutes, interpretations by other courts.
Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (internal
citations omitted).
KRS 413.245, when read in conjunction with KRS 413.243 which makes
clear the referenced professional services include the practice of law, is
unambiguous. Pertinently, whether brought in tort or contract, a civil action
commenced against an attorney arising out of any act or omission in rendering,
or failing to render, professional services for others must be brought within one
year. The parties in this case do not dispute that Seiller Waterman was
practicing law when the attorneys at that law firm prepared and filed the
mechanic’s lien, the action on which RLB premises its claims that Seiller
Waterman slandered its title, engaged in a conspiracy with Skyshield, and
violated the illegal lien provisions of KRS 434.155. The Court of Appeals
nevertheless determined that RLB’s claims did not actually arise out of
25
professional services performed by Seiller Waterman if those otherwise
professional services were performed with malice.14
The Court of Appeals’ conclusion that KRS 413.245 is limited to claims
free from malice cannot be discerned from the plain language expressed in the
statute. The statute does not refer to malice or contain any language from
which the presence or absence of malice might be inferred as relevant to the
statute’s applicability. Without language restricting the application of KRS
413.245 to claims not involving malice, the plain language of the statute
directs that the one-year limitation applies to any claim against an attorney
arising out of any act or omission in rendering or failing to render professional
services. Obviously, the legislature was free to include a malice exception or
other limiting language, but it did not do so. A court may not “add or subtract
from the legislative enactment nor discover meaning not reasonably
ascertainable from the language used.” Beckham v. Board ofEduc., 873
S.W.2d 575, 577 (Ky. 1994). Under these time-honored statutory construction
principles, we must reject the interpretation of KRS 413.245 adopted by the
Court of Appeals. Regardless of whether malice is alleged, claims arising from
14 Like the Court of Appeals, RLB does not cite authority, within Kentucky or
from other jurisdictions, for the proposition that alleging an attorney, or any other
professional, acted with malice removes a claim from the ambit of the statute of
limitations applicable to all claims arising from professional services. If the mere
addition of “with malice” or “maliciously” could avoid the one-year statutory
limitations period adopted by our General Assembly, use of that language would likely
become a routine end-run around the statute at least at the pleadings stage in all
actions against professionals whose services are encompassed by KRS 413.245.
26
an act or omission in the rendering of, or failing to render, professional services
are governed by KRS 413.245 and must be brought within one year.
Alternatively, RLB contends that its slander of title claim is governed by
the five-year statute of limitations in KRS 413.120, citing Ballard v. 1400
Willow Counsel of Co-Owners, Inc., 430 S.W.3d 229, 236 (Ky. 2013). Ballard
states, “Although not specifically mentioned, slander of title claims are
governed by KRS 413.120(7), which applies to ‘[a]n action for an injury to the
rights of the plaintiff, not arising on contract and not otherwise enumerated.”’
Id. Seiller Waterman counters that when a slander of title claim is asserted
against attorneys and their law firm the controlling precedent is actually Abel
v. Austin.
In Abel, numerous clients brought an action against their former
attorneys alleging fraud, misrepresentation, and breach of fiduciary duty when
the clients did not receive funds from a settlement. 411 S.W.3d at 730. The
attorneys argued that the one-year limitation in KRS 413.245 applied to the
claims, rather than the general five-year limitation in KRS 413.120. Id. at 737.
Along with the statutory principles outlined above, the Abel Court was guided
by two other principles:
“The applicable rule of statutory construction where there is both a
specific statute and a general statute seemingly applicable to the
same subject is that the specific statute controls.” Parts Depot, Inc.
v. Beiswenger, 170 S.W.3d 354, 361 (Ky. 2005) (quoting Meyers v.
Chapman Printing Co., Inc., 840 S.W.2d 814, 819 (Ky. 1992)).
Additionally, where an apparent conflict in statutes exists, the
“later statute is given effect over an earlier statute.” Bowling v.
Kentucky Dep’t of Corr, 301 S.W.3d 478, 491 (Ky. 2009) (quoting
[Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky. 1987)]).
27
Id. at 738 (footnote omitted).
The Abel Court concluded that KRS 413.245 applied to the clients’
claims because it “relates exclusively to civil actions brought against providers
of professional services, such as attorneys, for injury arising out of that
service,” and is thus more specific (and more recently enacted) than KRS
413.120(7) or (12). Id. The Court ended the analysis with its contextual
conclusion: “We are compelled by our analysis to conclude that claims brought
by clients or former clients against attorneys for acts or omissions arising out
of the rendition of professional services are governed exclusively by the one-
year limitation periods established by KRS 413.245. The provisions of KRS
413.120 are not applicable.” Id. at 739. Citing this statement’s reference to
“claims brought by clients and former clients,” RLB contends that KRS 413.245
does not extend to claims brought against attorneys by nonclients. We must
disagree.
By its plain, unambiguous language, KRS 413.245 applies to civil actions
arising out of any act or omission in rendering or failing to render professional
services. Nothing in the statute limits its application to only those claims
brought by individuals or entities who engaged the professional to provide such
services. KRS 413.245 thus applies to any civil action against an attorney
arising out of any act or omission in rendering or failing to render professional
services without regard to the identity of the claimant. The trial court properly
concluded that a slander of title claim brought against Seiller Waterman by
28
2018-SC-0538-DG
2018-SC-0558-DG
SEILLER WATERMAN, LLC; PAMELA M. APPELLANTS\CROSS-APPELLEES
GREENWELL; GORDON C. ROSE; AND,
ALSO PAUL J. HERSHBERG
ON REVIEW FROM COURT OF APPEALS
CASE NO-2017-CA-0024-MR
V. JEFFERSON CIRCUIT COURT NO. 16-CI-002522
RLB PROPERTIES, LTD. APPELLEES/CROSS-APPELLANTS
ORDER DENYING PETITION FOR REHEARING
The Petition for Rehearing, filed by Appellant, RLB Properties, LTD of the
Opinion of the Court, rendered July 9th, 2020 is DENIED.
All sitting. All concur.
ENTERED: September 24, 2020.