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Stephens v. Denison11/5/2004
AFFIRMING
Thomas Stephens was convicted of obtaining a controlled substance by fraud and of being a first-degree persistent felony offender (PFO I) and was sentenced to twenty years in prison following a jury trial in the Bullitt Circuit Court. He claims that his predicament was caused by the legal malpractice of the attorney representing him, Timothy Denison. Stephens filed a malpractice claim against Denison in the Jefferson Circuit Court, but the court granted Denison's summary judgment motion. We affirm.
A Bullitt County grand jury initially indicted Stephens for the offense of obtaining a controlled substance by fraud. It later indicted him for PFO I. He retained Denison to represent him on the charges. Stephens was convicted on both counts after a jury trial in October 1997 and was sentenced to an enhanced term of twenty years in prison. His conviction was upheld on direct appeal by the Kentucky Supreme Court in an unpublished opinion.
While Stephens's direct appeal was pending before the supreme court, he filed a civil suit in the Jefferson Circuit Court against Denison claiming malpractice. Stephens asserted that Denison failed to notify him that the Commonwealth had made a plea offer under which he could have pled guilty to the obtaining a controlled substance by fraud charge and received a two-year sentence, with the Commonwealth agreeing not to bring the PFO charge. Stephens alleged that he was not informed of this offer until it was too late to accept it. Further, he claimed that Denison was under the influence of cocaine during the trial.
The circuit court awarded summary judgment in Denison's favor in an opinion and order entered on July 19, 2000. The court reasoned that Stephens's claim was barred by the applicable statute of limitation. However, this court reversed the judgment and remanded the case to the circuit court. See Stephens v. Denison, Ky. App., 64 S.W.3d 297 (2001).
Denison subsequently filed a renewed motion for summary judgment. He argued that Stephens's failure to identify an expert witness to support his claim and his failure to obtain post-conviction relief barred any claim of legal malpractice. Stephens filed a response arguing that no expert testimony was necessary to support his claim and that his failure to obtain post-conviction relief did not bar his claim because the issue was the length of his sentence, not his innocence.
On September 9, 2003, the circuit court entered an order granting Denison's renewed summary judgment motion. The court reasoned that expert testimony was necessary to prove Stephens's claim of legal malpractice and that Stephens had failed to identify any expert witness. The court did not address Denison's argument that Stephens's failure to obtain post-conviction relief also barred the claim. This appeal by Stephens followed.
Stephens argues on appeal that the circuit court erred in granting Denison's renewed summary judgment motion based on Stephens's lack of an expert witness to support his claim. He maintains that expert witness testimony was not necessary in order for a jury to determine whether Denison failed to inform him of the plea offer while it was still in effect and whether such alleged failure helped prove the elements necessary to support a legal malpractice claim. Thus, he contends that this court should reverse the judgment and remand the case for trial.
In order to support a claim of legal malpractice, a plaintiff must prove "1) that there was an employment relationship with the defendant/attorney; 2) that the attorney neglected his duty to exercise the ordinary care of a reasonably competent attorney acting in the same or sim
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