O'Bryan v. Cave, Nos. 2005-SC-000118-DG, 2004-SC-000407-DG (Ky. 9/21/2006)
| Decision Date | 21 September 2006 |
| Docket Number | Nos. 2005-SC-000118-DG, 2004-SC-000407-DG.,s. 2005-SC-000118-DG, 2004-SC-000407-DG. |
| Parties | George R. O'BRYAN, Appellant/Cross-Appellee v. Dwight V. CAVE, Appellee/Cross-Appellant |
| Court | United States State Supreme Court — District of Kentucky |
Appellant, George R. O'Bryan, appeals from a judgment of the Court of Appeals, which reversed the judgment of the Jefferson Circuit Court and remanded the summary judgment entered therein. The Jefferson Circuit Court had held, inter alia, that beneficiaries of a will, prepared by O'Bryan at his client's request, failed to offer any proof to refute the defendant attorney's testimony that he advised the client of the possibility that his surviving wife may renounce the will. Finding that summary judgment was appropriate in this instance and for the reasons set forth herein, we reverse the judgment of the Court of Appeals and reinstate the judgment of the Jefferson Circuit Court with regard to the motion for summary judgment.
In July 1997, Claude Cave ("Claude") and his wife of fifteen years, Doris, met with Appellant, George R. O'Bryan, an attorney, in regard to a will and a deed. This July meeting was the first of only two meetings between Claude and O'Bryan. During the initial meeting, Claude requested that O'Bryan prepare a will and a deed, which would give Doris a joint interest with the right of survivorship in Claude's home in Louisville, Kentucky. O'Bryan contends that he advised Claude that execution of the deed with the right of survivorship would cause the property to pass directly to Doris without having to go through the will, and thus, Doris could later renounce her interest in the will and take other interests there under pursuant to her dower rights. According to O'Bryan's testimony, Claude acknowledged this advice, but insisted that O'Bryan go ahead and draw both the will and deed because he wanted there to be no question concerning Doris's ownership of the home when he died.
A month later, on August 12, 1997, Claude returned to O'Bryan's office and executed the deed and will prepared by O'Bryan at Claude's request. On its face, the deed set forth Claude's "love and affection" for Doris as consideration for the survivorship interest in his home. Claude also executed the will, which devised and bequeathed all of his real estate to Doris, but the residuary of his estate to his sisters, Dorothy Ming, Della Burress and Dora Landrum, and his nephews, Leroy Kilby and the Appellee, Dwight Cave, "to be divided equally among them, to share and share alike."
Claude died in August 1999, and on August 30, 1999, the will was submitted to probate. Doris, however, on January 28, 2000, executed and recorded a release under KRS 392.080, renouncing her interest in Claude's will and claiming her dower interest. O'Bryan claims he never represented Doris, nor advised her of her renunciation right. O'Bryan did, however, prepare the renunciation.
On October 10, 2002, Cave filed a legal malpractice suit against O'Bryan, alleging that O'Bryan was negligent in drafting the will and deed in that the conveyance created the opportunity to thwart the stated intention of the will. In support of his complaint, Cave asserted that O'Bryan failed to advise Claude of Doris's right to renounce the will and the effect of the survivorship deed, the results of which Cave claims deprived him of approximately $14,000.
O'Bryan then filed a motion for summary judgment on July 17, 2002, arguing that (1) the record contained no evidence of any failure on his part to advise Claude of Doris's possible renunciation rights, and (2) that Cave provided no expert testimony that O'Bryan breached any standard of care. In fact, in granting O'Bryan's motion for summary judgment, the Jefferson Circuit Court found, in pertinent part, that Cave presented no evidence to refute O'Bryan's assertion that he gave such advice but it was ignored. Cave's motion to set aside the summary judgment was denied by the trial court, and he subsequently appealed to the Court of Appeals.
In its opinion, the Court of Appeals, believing that the facts of the transactions themselves provided sufficient circumstantial evidence to create a material issue of fact as to whether the appropriate advice was given, reversed the circuit court, despite the fact that the Cave was unable to produce any direct evidence in support of his claim that O'Bryan did not advise Claude of the fact that Doris could renounce the will. We granted O'Bryan's motion for discretionary review to address his claims of error by the Court of Appeals. We now reverse the Court of Appeals.
Although O'Bryan alleges several errors on the part of the Court of Appeals, we find only one dispositive of this case, viz.: whether summary judgment was appropriate in this instance. We find it was.
The standard for summary judgments in Kentucky is well-known. Summary judgment is appropriate 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 Service...
To continue reading
Request your trial