Doe v. Golden & Walters, Pllc

• Decision Date: 09 September 2005
• Docket Number: No. 2004-CA-000639-MR.,2004-CA-000639-MR.
• Citation: 173 S.W.3d 260
• Parties: John DOE # 1-77; Jane Doe # 1-19, and all other Similarly-Situated, but as yet Unknown John Doe and Jane Doe Victims, as a Class, Appellants, v. GOLDEN & WALTERS, PLLC; J. Dale Golden; Eugene Goss; Mark David Goss; Fernandez Friedman Grossman & Kohn, PLLC; David A. Friedman; Robert E. Reeves; Reeves & Associates; Barry Lynn Demus, Jr.; Octavius Gillis; Christopher Andre Williams; Craig Johnson; David T. Jones; and John Doe Nos. 1-16, Appellees.
• Court: United States State Supreme Court — District of Kentucky

173 S.W.3d 260

John DOE # 1-77; Jane Doe # 1-19, and all other Similarly-Situated, but as yet Unknown John Doe and Jane Doe Victims, as a Class, Appellants, v. GOLDEN & WALTERS, PLLC; J. Dale Golden; Eugene Goss; Mark David Goss; Fernandez Friedman Grossman & Kohn, PLLC; David A. Friedman; Robert E. Reeves; Reeves & Associates; Barry Lynn Demus, Jr.; Octavius Gillis; Christopher Andre Williams; Craig Johnson; David T. Jones; and John Doe Nos. 1-16, Appellees.

No. 2004-CA-000639-MR.

Court of Appeals of Kentucky.

September 9, 2005.

COPYRIGHT MATERIAL OMITTED

James M. Morris, Lexington, KY, for Appellant.

Guy R. Colson, Ellen Arvin Kennedy, Lexington, KY, for Appellees Golden & Walters, PLLC, and J. Dale Golden.

Calvin R. Fulkerson, Melanie S. Marrs, Lexington, KY, for Appellees Eugene Goss and Mark David Goss.

John M. Famularo, Alex L. Scutchfield, Lexington, KY, for Appellees Fernandez Friedman Grossman & Kohn, PLLC, and David A. Friedman.

Linda B. Sullivan, Lexington, KY, for Appellee Craig Johnson.

Before HENRY and MINTON, Judges; HUDDLESTON, Senior Judges.¹

OPINION

MINTON, Judge.

I. INTRODUCTION.

This case arises out of a series of federal class actions filed in the United States District Court for the Eastern District of Kentucky: Guy v. Lexington-Fayette Urban County Government² (Guy); Doe # 1-9 v. Miller³ (Doe I); Doe # 1-33 v. Lexington-Fayette Urban County Government⁴ (Doe II); Doe # 1-44 v. Lexington-Fayette Urban County Government⁵ (Doe III); and Doe v. Miller.⁶ Each was filed on behalf of the same class of plaintiffs, discussed below, and alleged civil rights violations by the Lexington-Fayette Urban County Government (LFUCG).⁷ The instant case was filed as a class action case in Fayette Circuit Court, ostensibly by some or all of the named plaintiffs⁸ of Doe II and Doe III.⁹ The Appellants allege that they are members of the class of plaintiffs on whose behalf Guy and Doe I were filed. They brought this suit against the named plaintiffs of Guy and Doe I,¹⁰ the named plaintiffs' attorneys,¹¹ and the attorneys' corresponding law firms¹² after the Appellants' claims against LFUCG were dismissed as time-barred in Doe II and Doe III. The Appellants allege that they would not have lost the opportunity to pursue their otherwise viable claims against LFUCG if not for certain acts and omissions committed by the Appellees during the litigation of Guy and Doe I. The Appellants have asserted claims for attorney malpractice (breach of duty based on attorney-client relationship), breach of fiduciary duty, and fraudulent misrepresentation.

The Appellants appeal from two orders of the trial court that had the combined effect of granting summary judgment in favor of each of the Appellees on all claims. After these summary judgment orders were issued and this appeal was filed, the United States Court of Appeals for the Sixth Circuit issued an opinion on May 5, 2005, in Doe v. Lexington-Fayette Urban County Government (Doe v. LFUCG), a consolidated appeal of Guy, Doe I, Doe II, Doe III, and Doe v. Miller. Therefore, we also must consider the effect of this federal consolidated appeal on this matter.

We hold that the Fayette Circuit Court lacked subject matter jurisdiction of the instant case because it was filed prematurely before any of the causes of action asserted ever accrued. Accordingly, we reverse the trial court's summary judgment orders, which dismissed all of the claims against the Appellees, with prejudice; and we remand with instructions to dismiss these unripe claims, without prejudice. The Sixth Circuit's opinion in the consolidated appeal, Doe v. LFUCG, 407 F.3d 755 (C.A.6 2005) has no effect on our holding as it could not and did not resolve the Fayette Circuit Court's lack of subject matter jurisdiction in the instant case.

II. BACKGROUND.

A. Judicial Notice.

Any attempt to address the case at hand must begin with an understanding of the underlying federal class actions. However, the record before us is incomplete with regard to the procedural history of these federal cases. So, in the interest of judicial economy, we must resort to judicial notice to fill in the gaps in the chronology of the federal litigation.

The concept of judicial notice has been codified in Kentucky Rules of Evidence (KRE) 201. A court may take judicial notice sua sponte.¹³ Moreover, "[j]udicial notice may be taken at any stage of the proceeding."¹⁴ In his highly respected treatise on Kentucky evidence law, Professor Robert G. Lawson notes that this provision merely codified the common law of Kentucky which recognized the authority of an appellate court to take judicial notice of an appropriate fact.¹⁵ This is consistent with language in the Kentucky Rules of Civil Procedure (CR) concerning what information must be included in the appendix of an appellate brief. CR 76.12(4)(c)(vii) creates an exception for "matters of which the appellate court may take judicial notice" to the general rule that materials and documents not in the record may not be introduced or used as exhibits in an appendix in support of an appellate brief. But Lawson warns that judicial notice should be used cautiously on appeal so as not to subvert the rules concerning preservation of error.¹⁶

KRE 201(b) states in relevant part that "[a] judicially noticed fact must be one not subject to reasonable dispute. . . ." One type of judicially noticed fact that is not subject to reasonable dispute is a fact "[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."¹⁷ Lawson provides helpful guidance regarding how KRE 201 should be interpreted with respect to taking judicial notice of court records. He writes that the critical inquiry is focused not "upon the general noticeability of court records" but, rather, "upon the noticeability of indisputable facts that happen to be verified by court records."¹⁸ Lawson elaborates as follows:

The propriety of taking notice in a given situation would depend first of all upon whether the fact in question is indisputable and secondly upon whether the fact is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." It is not critical that that fact is contained in a court record, but rather that it is capable of verification by resort to a readily available and accurate source of information (which just happens to be court records).¹⁹

We take judicial notice of the content of the federal clerk's docket sheets for Guy, Doe I, Doe II, and Doe III. All of the information contained in these docket sheets is available through the Public Access to Court Electronic Records (PACER) database, which may be accessed via the internet.²⁰ Specifically, we take judicial notice of the chronology of dates of case events, the nature of these events, and the case status for each of these four federal cases as contained in the docket sheets.

We are cognizant that judicial notice should be used cautiously on appeal, but the noticed information is necessary to determine whether the Fayette Circuit Court had subject matter jurisdiction in the instant case. The noticed information is capable of accurate and ready determination through PACER or by obtaining the information from the federal clerk. And because the information in the docket sheets concerning the procedural history of Guy, Doe I, Doe II, and Doe III is controlled by the clerk of the United States District Court for the Eastern District of Kentucky, the accuracy of the information provided, such as the date a particular motion was filed or the date the federal district court denied certification, cannot reasonably be questioned. Therefore, the information contained in the docket sheets is a proper subject for judicial notice.

The Court also takes judicial notice of the opinion issued on May 5, 2005, by the Sixth Circuit in Doe v. LFUCG, a consolidated appeal of Guy, Doe I, Doe II, Doe III, and Doe v. Miller. Because this federal appeal was decided after the trial court entered the summary judgments in the instant case, the parties had no opportunity to include it in the record. As is explained in detail below, the opinion in Doe v. LFUCG was not yet final as of the date this opinion was written. Ordinarily this would preclude us from citing this opinion. Nevertheless, we take judicial notice of it to consider whether its effect or potential effect on the four underlying federal class actions has any bearing on the ripeness of the claims in the instant case and the question of whether the trial court had subject matter jurisdiction over the instant case.²¹ We do not seek to take notice of the propriety or correctness of the Sixth Circuit's decision but, rather, to take notice of the court's judicial act. Although not yet final, the fact of the Sixth Circuit's opinion in Doe v. LFUCG and its contents cannot reasonably be questioned. Moreover, this information is capable of ready determination as the opinion is available from the Sixth Circuit, the Federal Reporter,²² and Westlaw.

B. Procedural History.

1. Guy.

Guy was filed on October 15, 1998, by four named plaintiffs on behalf of themselves and a class of similarly-situated persons who were allegedly sexually abused as minors by Ron Berry through their involvement with Micro-City Government. Berry was the director of Micro-City Government, a nonprofit, community service program for disadvantaged youth²³ that was sponsored and funded, in part, by LFUCG. The action alleged that LFUCG violated the plaintiffs' civil rights because it continued to fund Micro-City Government, despite having knowledge that Berry was a sexual predator.

Before any ruling had been made on the issue of class certification, the named plaintiffs of Guy filed a joint motion with LFUCG to enter an agreed order of dismissal based on a tentative settlement agreement making no provisions for putative class members. Craig Johnson and ...