George Harrison v. Tucker Richardson

RENDERED: JULY 14, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0511-MR
GEORGE HARRISON APPELLANT
APPEAL FROM ESTILL CIRCUIT COURT
v. HONORABLE MICHAEL DEAN, JUDGE
ACTION NO. 21-CI-00168
TUCKER R. RICHARDSON AND
LAW FIRM OF TUCKER R.
RICHARDSON APPELLEES
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.
THOMPSON, CHIEF JUDGE: George Harrison (“Appellant”) appeals from an
order of the Estill Circuit Court entered on January 12, 2022, granting a motion to
dismiss in favor of Tucker Richardson and the Law Firm of Tucker R. Richardson
(“Appellees”). He also appeals from an April 12, 2022 order denying his motion
for partial summary judgment. Appellant argues that the circuit court erred in
dismissing the action and in improperly failing to grant partial summary judgment
in his favor. On September 30, 2022, we determined that Appellant is procedurally
barred from appealing the January 12, 2022 order granting the motion to dismiss in
favor of Appellees. After careful review, we affirm the April 12, 2022 order
denying Appellant’s motion for partial summary judgment.
FACTS AND PROCEDURAL HISTORY
On August 15, 2019, Appellant was indicted by a federal grand jury
on various drug and firearm charges. In 2020, Appellees undertook the
representation of Appellant to defend against the criminal charges, and to pursue a
civil action on an unrelated insurance claim. After about eight months, Appellees
withdrew as counsel in the criminal proceeding because Appellant engaged in ex
parte communication with the court. Appellant then engaged new defense counsel,
and Appellees continued to represent Appellant in the insurance claim until
Appellant instructed them to stop. The criminal matter proceeded to trial and
Appellant was convicted and sentenced to 180 months in federal prison. The
conviction and sentence were affirmed on appeal to the Sixth Circuit Court of
Appeals.
Thereafter, Appellant filed the instant action in Estill Circuit Court
setting forth claims of professional negligence and violation of Kentucky’s
Consumer Protection Act arising out of Appellees’ handling of the criminal action
and insurance claim. Appellees responded with a motion to dismiss based on the
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applicability of the “exoneration rule” and Appellant’s failure to assert a
cognizable claim.1 The circuit court treated the motion to dismiss as a motion for
summary judgment. It determined that the exoneration rule precluded Appellant’s
claims because Appellant was convicted, but not subsequently exonerated. The
circuit court granted summary judgment in Appellees’ favor by order dated
January 12, 2022, and Appellant’s motion for reconsideration was denied.
Appellant did not timely appeal the January 12, 2022 order, nor timely move to
suspend the time for taking an appeal.
On March 17, 2022, Appellant filed a motion with the circuit court
seeking partial summary judgment.2 On April 12, 2022, the circuit court
summarily denied Appellant’s motion because the underlying action was
previously dismissed, and Appellant’s motion for partial summary judgment was
not properly before the circuit court. This appeal followed.
Appellant, pro se, now argues that the Estill Circuit Court erred in
granting Appellees’ motion to dismiss, and in denying Appellant’s motion for
1
The exoneration rule is a defense to a legal malpractice action. It provides that a criminal
defendant who has been convicted at trial and whose conviction has not been overturned may not
maintain a legal malpractice action against his defense counsel for alleged negligence in the
presentation of the criminal defense. See Lawrence v. Bingham, Greenebaum, Doll, L.L.P., 567
S.W.3d 133 (Ky. 2018).
2
Appellant’s motion sought partial summary judgment on the Kentucky Consumer Protection
Act claim that the circuit court had previously dismissed, and for claims of theft by deception
and theft by unlawful taking that Appellant set forth in an untimely attempt to amend his
complaint.
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partial summary judgment.3 He argues that the exoneration rule is not applicable
and should not have been relied on by the circuit court to dismiss the underlying
action. He also asserts that the facts and the law entitle him to partial summary
judgment.
On May 25, 2022, this Court directed Appellant to show cause why
the issues on appeal should not be limited to the order entered on April 12, 2022.
The Court noted that the Notice of Appeal was untimely filed from the order
entered on January 12, 2022, and a motion under Kentucky Rules of Civil
Procedure (“CR”) 59.05 was not timely filed so as to suspend the appeal time.
Appellant filed a response to the show cause order, arguing that he intended to
suspend the appellate process by filing a motion under CR 52.02 for additional
findings of fact and a motion to reconsider under CR 59.05. He also claimed he
had issues receiving mail from the circuit court because he was incarcerated, but he
conceded he received the circuit court’s order entered on January 12, 2022.
On September 30, 2022, we entered an order finding that Appellant’s
Notice of Appeal was untimely filed from the order entered January 12, 2022. As
such, we determined that Appellant failed to invoke this Court’s jurisdiction over
the January 12, 2022 order. We ordered that the issues on appeal shall be limited
3
Appellant’s Notice of Appeal refers to orders dated January 12, 2022, and “on or about the 1st
day of April 2022[.]” It appears that the latter order to which Appellant refers is the order
denying his motion for partial summary judgment entered April 12, 2022.
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to the consideration of the circuit court’s April 12, 2022 order denying Appellant’s
motion for partial summary judgment. Accordingly, that is the sole issue now
before us.
In denying Appellant’s motion for partial summary judgment, the
Estill Circuit Court determined that the motion was not properly before the circuit
court because the underlying action was previously dismissed. This conclusion is
supported by the record. “[I]t is axiomatic that a court loses jurisdiction once its
judgment is final.” Mullins v. Hess, 131 S.W.3d 769, 774 (Ky. App. 2004). The
circuit court granted Appellees’ motion to dismiss on January 12, 2022. This order
became final when the circuit court denied Appellant’s motion to reconsider on
March 3, 2022. Appellant’s motion for partial summary judgment was filed on
March 17, 2022, about two weeks after the dismissal of his complaint had reached
finality. As such, the circuit court correctly determined that Appellant’s motion for
partial summary judgment was not properly before it. We find no error.
CONCLUSION
For the foregoing reasons, we affirm the April 12, 2022 order of the
Estill Circuit Court denying Appellant’s motion for partial summary judgment.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
George Harrison, pro se Patricia C. Le Meur
Irvine, Kentucky Katherine T. Watts
Louisville, Kentucky
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