McCormick v. Wade
v.
Preston J. WADE, Attorney, Appellee.
Court of Appeals of Kentucky.
Damon McCormick, pro se, Eddyville, Kentucky, Brief for Appellant.
Preston J. Wade, Henderson, Kentucky, Brief for Appellee.
Before: COMBS, Chief Judge; THOMPSON, Judge; BUCKINGHAM,[1] Senior Judge.
Not to be Published
OPINION
BUCKINGHAM, SENIOR JUDGE:
Damon McCormick appeals from a summary judgment entered by the Henderson Circuit Court dismissing his legal malpractice claim against the attorney, Preston J. Wade, who had represented him in a civil suit. He also appeals from an order of the court denying his motion for the trial judge to recuse. We affirm.
Wade represented McCormick as the plaintiff in a circuit court civil suit filed against the administratrix of McCormick's mother's estate. The court dismissed the case, and a timely appeal was not filed. McCormick then filed a legal malpractice action against Wade in the circuit court alleging negligence by Wade in failing to promptly notify him of the order of dismissal so that a timely appeal could be filed.
McCormick filed a motion for the trial judge to recuse on the grounds that there was a "working relationship" between the judge and Wade because Wade was a county attorney and that the relationship "looks of impropriety." Wade was actually an assistant county attorney who prosecuted cases in the district court and not the circuit court. Finding no basis for disqualification, the judge denied the motion.
McCormick later filed a motion for summary judgment which the court denied. Wade then filed a motion for summary judgment which the court granted. In its order, the court assumed that Wade had not given McCormick prompt notice of the dismissal order so that McCormick could file a timely notice of appeal. Citing Marrs v. Kelly, 95 S.W.3d 856 (Ky. 2003), the court held, however, that McCormick was also required to prove that he would have fared better off or would have succeeded in the underlying case had a timely appeal been filed but that he failed to offer any evidence that such was the case. This appeal followed.
We will first address the court's denial of the recusal motion. In Webb v. Commonwealth, 904 S.W.2d 226 (Ky. 1995), the Kentucky Supreme Court held that "[a] party's mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds to require recusal." Id. at 230. We fail to see any reason why the judge should have recused herself. While McCormick alleged a close working relationship, we note that Wade served as an assistant county attorney in another court. Further, the fact that Wade may have occasionally practiced before the judge is insufficient to warrant recusal or disqualification. We find no error in the judge's denial of McCormick's motion to recuse.
Concerning the summary judgment dismissing McCormick's legal malpractice complaint, the Marrs case is applicable. To sustain his legal malpractice claim, McCormick was required to prove the following: 1) that there was an employment relationship between him and Wade; 2) that Wade neglected his duty to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances; 3) that Wade's negligence was the proximate cause of damage to McCormick. Id. at 860. "To prove that the negligence of the attorney caused the plaintiff harm, the plaintiff must show that he/she would have fared better in the underlying claim; that is, but for the attorney's negligence, the plaintiff would have been more likely successful." Id.
For purposes of summary judgment, the trial court assumed that Wade could prove the first two elements of the claim. Regarding the third element of the claim, McCormick argued to the court that his damage was the opportunity he lost to appeal the adverse ruling in the underlying case. The court held, however, that "[t]he plaintiff must prove that but for the defendant's negligence he would have won the appeal or somehow been better off." In awarding summary judgment to Wade, the court concluded that "McCormick has not offered any evidence to support the third essential element of his claim."
The movant bears the initial burden of convincing the court by evidence of record that no genuine issue of fact is in dispute, and then the burden shifts to the party opposing summary judgment to present "at least some affirmative evidence showing that there is a genuine issue of fact for trial." Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). "The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment." Wymer v. JHProperties, Inc., 50 S.W.3d 195, 199 (Ky. 2001). See also Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky. 2004).
Here, Wade presented sufficient evidence to shift the burden to McCormick to present at least some affirmative evidence showing that there was a genuine issue of material fact for trial. Rather than present affirmative evidence showing that but for Wade's negligence he would have fared better or would have been more likely successful on his underlying claim, McCormick asserted that the mere loss of his right to appeal was sufficient harm or damage to meet the third element of his legal malpractice claim. This argument is contrary to Marrs and is without merit. The trial court correctly granted Wade's summary judgment motion.
The judgment of the Henderson Circuit Court is affirmed.
COMBS, CHIEF JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY.
[1] Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
