Paolucci v. Render, Kamas Law Firm and all partners from 1995 to the present
Filing
62
MEMORANDUM AND ORDER granting 37 Motion for Summary Judgment. Signed by District Judge Monti L. Belot on 8/1/2013. (alm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BARBARA PAOLUCCI,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
RENDER KAMAS LAW FIRM,
Defendant.
CIVIL ACTION
No.
12-1253-MLB
MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion for
summary judgment.
(Doc. 37).
is ripe for decision.
The motion has been fully briefed and
(Docs. 38, 50, 59).
Defendant’s motion is
granted for the reasons herein.
I.
Facts
Defendant Render Kamas, a law firm in Kansas, represented
several hundred individuals, including plaintiff Barbara Paolucci, in
a
series
of
lawsuits
that
were
known
as
the
“Parade
of
Toys
Litigation.”
In April 1997, defendant filed the first lawsuit in the
litigation.
After a motion for class certification was denied,
defendant filed individual lawsuits on behalf of all plaintiffs.
Paolucci’s individual lawsuit was styled Paolucci v. Hillcrest Bank,
et al, Case No. 99-1643 (District Court of Johnson County, Kansas).
Prior to the cases proceeding to trial, six settlements were obtained
from various defendants totaling more than one million dollars.
In
November 2000 and November 2001, two trials were held involving
sixteen plaintiffs, but not Paolucci.
were unfavorable to the plaintiffs.
The results of the jury trials
In the sixteen cases that went
to trial, fourteen resulted in defense verdicts and the remaining two
plaintiffs were only awarded $5,064.
After the trials, defendant filed appeals on behalf of the
plaintiffs. The cases of the remaining plaintiffs were stayed pending
the outcome of the appeals.
The trial court’s rulings and the jury
verdicts were affirmed by the Kansas Court of Appeals.
On August 17,
2004, Albert Kamas sent an email to Paolucci and described defendant’s
attempts to contact her.
Kamas informed Paolucci that the case was
pending before the Kansas Supreme Court and, if the appeal was not
successful, defendant would seek to withdraw from the remaining cases
because the cost to prosecute could not be justified.
Defendant
informed Paolucci that there had been no payments to any plaintiffs
from the settlement proceeds.
On September 14, 2004, the Kansas Supreme Court denied review.
On November 2, 2004, defendant sent a letter to Paolucci informing her
of the unsuccessful appeal and notifying her that it would be moving
to withdraw from her case if it did not hear from her within two
weeks.
There is no evidence that Paolucci responded to defendant’s
November 2 letter.
On September 9, 2005, defendant filed a motion for leave to
withdraw as counsel from all remaining cases in the Parade of Toys
Litigation.
(Doc. 38, exh. A3).
On September 17, 2005, district
judge Steve Leben granted defendant’s motion to withdraw from all
cases and entered an order to show cause why the remaining cases
should not be dismissed.
(Doc. 38, exh. A4).
On October 21, 2005,
Paolucci filed an opposition to the motion to withdraw and moved for
sanctions. In her filing, Paolucci attached an affidavit in which she
-2-
stated as follows:
I, Barbara Paolucci, am a Plaintiff in all/various
cases against the Parade of Toys Defendants and I make
this sworn statement under the penalty of perjury.
***
3. To the best of my knowledge and belief, Render Kamas
obtained at least 3 settlements for sums they claimed
were $30,000.00 or less. And at least one settlement for
$150,000.00. I have recently learned that they also
obtained a settlement in the amount of $650,000.00 and
again, I have not received one penny; I have not received
notice of the majority of settlements they obtained or
any monies won at trial. To the best of my knowledge and
belief, none of the Plaintiffs represented by Render,
Kamas has received a dime.
***
5. More recently, I had another attorney in the Kansas
area start searching for information through court
records and was told that there was a $650,000.00
settlement. I was never informed of this settlement or
any others after the year 2000 and to date, have not
received one cent from any settlement monies.
***
15. I ask the Court to keep in mind that plaintiffs,
myself included, have been waiting for 10 years or more
for the return of the money they lost in this scam and
that having Render, Kamas as an attorney has resulted in
adding insult to injury. It can not be possible that
over $750,000.00 in settlements goes to the law firm and
$0.00 goes to the clients who were harmed.
16. I am respectfully requesting the Court issue a
written Order to all attorneys for them to submit to all
Plaintiffs, myself included, their malpractice insurance
policies in effect from the time they were retained as
attorney by each Plaintiff to the present and this
disclosure should include all pertinent information about
the policy such as the address of the insurance company,
the policy number, copies of the policies and any other
information that Plaintiff may need in order to pursue a
legal malpractice case against any/all of them.
(Doc. 38, exh. B at 10-15).
The court held a hearing on Paolucci’s motion on January 18,
-3-
2006.
The court ordered defendant to provide Paolucci with an
accounting of settlements and expenses and continued the hearing to
March 30.
On April 11, 2006, the court denied Paolucci’s motion for
sanctions and granted defendant’s motion to withdraw, stating that
“Paolucci’s complaints concerning Mr. Kamas clearly establish that the
attorney-client relationship has deteriorated to such a point that
withdrawal is appropriate.” (Doc. 38, exh. A5). Other than providing
Paolucci with an accounting on February 6, 2006, defendant did not do
anything on Paolucci’s behalf after filing the motion to withdraw in
September 2005.
On December 27, 2007, Paolucci filed a legal malpractice suit
against defendant in the Supreme Court of the State of New York.
On
May 5, 2009, the suit was dismissed after the court determined that
it lacked personal jurisdiction over defendant. Paolucci appealed the
decision and it was affirmed by the appellate court on May 3, 2011.
Paolucci appealed to the Court of Appeals of New York, the highest
state court, and it denied her motion for leave to appeal on January
10, 2012.
On
June
14,
2012,
Paolucci
filed
this
defendant alleging a claim of legal malpractice.
complaint
against
Defendant moves for
summary judgment on the basis that Paolucci’s claim is barred by the
statute of limitations or, in the alternative, that she cannot prove
her claim of malpractice because she has not retained an expert.
II.
Summary Judgment Standard
The rules applicable to the resolution of this case, now at the
summary judgment stage, are well-known and are only briefly outlined
here.
Federal Rule of Civil Procedure 56(c) directs the entry of
-4-
summary judgment in favor of a party who "show[s] that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c).
An issue is “genuine” if sufficient evidence exists so that a rational
trier of fact could resolve the issue either way and an issue is
“material” if under the substantive law it is essential to the proper
disposition of the claim.
Adamson v. Multi Community Diversified
Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).
When confronted
with a fully briefed motion for summary judgment, the court must
ultimately determine "whether there is the need for a trial–whether,
in other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party."
477 U.S. 242, 250 (1986).
judgment.
III.
Anderson v. Liberty Lobby, Inc.,
If so, the court cannot grant summary
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Pro Se Status
Before analyzing defendants’ motion for summary judgment, the
court notes plaintiff is not represented by counsel. It has long been
the rule that pro se pleadings, including complaints and pleadings
connected with summary judgment, must be liberally construed.
See
Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991); Hill v.
Corrections Corp. of America, 14 F. Supp.2d 1235, 1237 (D. Kan. 1998).
This rule requires the court to look beyond a failure to cite proper
legal authority, confusion of legal theories, and poor syntax or
sentence
construction.
See
Hall,
935
F.2d
at
1110.
Liberal
construction does not, however, require this court to assume the role
of advocate for the pro se litigant.
-5-
See id.
Plaintiff is expected
to construct his own arguments or theories and adhere to the same
rules of procedure that govern any other litigant in this district.
See id.; Hill, 14 F. Supp.2d at 1237.
Additionally, the court need
not accept as true plaintiff’s conclusory allegations because no
special legal training is required to recount the facts surrounding
alleged injuries.
Hill, 14 F. Supp.2d at 1237.
Thus, the court is
required to accept as true only plaintiff’s well-pleaded and supported
factual contentions.
Id.
In the end, plaintiff’s pro se status, in
and of itself, does not prevent this court from granting summary
Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.
judgment.
1992).
IV.
Analysis
A.
Statute of Limitations
Because an action for negligence against an attorney relies on
a
contract
for
employment,
a
legal
malpractice
claim
generally
contains elements of both tort and breach of contract. Pancake House,
Inc. v. Redmond, 239 Kan. 83, 85–86, 716 P.2d 575 (1986).
As a
result, a legal malpractice claim can be brought as a breach of
contract claim when “the act complained of is a breach of specific
terms of the contract without any reference to the legal duties
imposed by law upon the relationship created thereby.”
Id. at 86.
Nevertheless, when “the essential claim of the action is a breach of
duty imposed by law upon the relationship of attorney/client and not
of the contract itself, the action is in tort.”
Id.
In this case, the allegations are that defendant wrongfully
obtained
settlement
plaintiffs.
funds
that
were
due
to
These allegations sound in tort.
-6-
Paolucci
and
other
See Jeanes v. Bank of
Am., N.A., 40 Kan. App.2d 281,
286-288 (Kan. Ct. App. 2008)(a
malpractice action is one in tort when the actions complained of do
not relate to duties contained in the contract).
In Pancake House, the Kansas Supreme Court set out the main
theories used to determine when a cause of action accrues in an
attorney malpractice case sounding in tort:
Depending upon the facts and circumstances of each
case, there are at least four theories which can apply to
attorney malpractice in Kansas as to when the accrual of
a cause of action occurs and the statute of limitations
begins to run. These include:
(1) The occurrence rule-the statute begins to run at the
occurrence of the lawyer's negligent act or omission.
(2) The damage rule-the client does not accrue a cause of
action for malpractice until he suffers appreciable harm
or actual damage as a consequence of his lawyer's
conduct.
(3) The discovery rule-the statute does not begin to run
until the client discovers, or reasonably should have
discovered, the material facts essential to his cause of
action against the attorney.
(4) The continuous representation rule-the client's cause
of action does not accrue until the attorney-client
relationship is terminated.
239 Kan. at 85-86.
This action was originally filed on December 27, 2007. Thus, if
Paolucci’s legal malpractice claim accrued prior to December 27, 2005,
this action is barred by K.S.A. 60–513.1 Defendant contends that this
1
There is no dispute that Paolucci’s filing in this court on
June 14, 2012, exceeded the six months allowed by the Kansas Savings
Statute, K.S.A. 60-518, because it was filed within six months of the
decision issued by New York’s highest court.
Paolucci’s complaint could also be read to state a claim for
fraud.
A fraud claim must also be filed within two years of
discovering the injury. Evolution, Inc. v. SunTrust Bank, 342 F.
Supp. 2d 964, 972 (D. Kan. 2004).
-7-
action is barred under both the discovery rule and the continuous
representation rule.
Paolucci responds that her action is not barred
because defendant provided continuous representation until April 11,
2006.
The continuous representation rule is dependent upon the facts
set forth in each case.
In Gansert v. Corder, 26 Kan. App.2d 151,
153-156 (1999), the defendant attorney continued to represent the
plaintiff until he was formally granted leave to withdraw.
Eleven
months earlier, however, the plaintiff had informed the defendant that
she wanted new counsel, was going to file suit against him and file
a complaint with the disciplinary board.
The Kansas Court of Appeals
held that the continuous representation rule did not apply after the
plaintiff’s actions and statements made clear that she terminated the
defendant’s representation.
When the trust and confidence on which
the rule is based comes to an end, the continuous representation rule
will not apply to extend the statute of limitations.
Id. (citing
Morrison v. Watkins, 20 Kan. App.2d 411, 419, 889 P.2d 140 (1995)).
The court emphasized that the “true test to determine when an action
accrues is that point in time at which the plaintiff could first have
filed and prosecuted his action to a successful conclusion.” Gansert,
26 Kan. App.2d at 156 (citing Pancake House, 239 Kan. at 87)).
In
Gansert, the plaintiff had all of the evidence necessary to prosecute
a
claim
for
attorney
malpractice
at
the
time
she
stated
her
allegations against the defendant, prior to the court’s order granting
the defendant’s motion to withdraw.
The Tenth Circuit has taken a similar stance.
In Elder v.
Herlocker, No. 09-3210, 2010 WL 5157359, 2 (10th Cir. Dec. 21, 2010),
-8-
the Tenth Circuit explained that the Kansas Supreme Court does not
apply the principle of continuous representation, even when the
underlying litigation has not been resolved, “[i]f it is clear that
the plaintiff . . . has incurred injury and if it is reasonably
ascertainable
that
such
injury
was
the
result”
of
defendant's
negligence. (citing Dearborn Animal Clinic, P.A. v. Wilson, 248 Kan.
257, 271 (1991)).
In such cases, “the statute begins to run at the
time that it is reasonably ascertainable that the injury was caused
by the attorney's malpractice.”
Id.
Reviewing the facts in this case, defendant notified Paolucci
as early as November 2004 that it would seek to withdraw from her
case.
Defendant followed through with its plan and moved to withdraw
on September 9, 2005.
September 17.
That motion was granted by the court on
Paolucci filed an objection on October 21, which could
be construed as a motion for reconsideration, seeking sanctions
against
defendant
and
alleging
legal
malpractice.
Paolucci’s
allegations on October 21 clearly evidence a deteriorated relationship
between Paolucci and defendant. They also show that she had knowledge
of the alleged malpractice, i.e. embezzlement of the settlement
proceeds, on October 21, 2005.
Moreover, there is no evidence that
an attorney-client relationship existed after September 9, 2005.
The
only interaction between the parties after September 9 was a courtordered disclosure of expenses by defendant.
The court finds that Paolucci’s affidavit supports a finding
that on or before October 21, 2005, Paolucci had knowledge of her
alleged injury and that the injury was caused by defendant. Moreover,
the court finds that the attorney-client relationship was terminated
-9-
when the district court entered the first order granting defendant’s
motion for leave to withdraw on September 17, 2005.
Paolucci’s
objection to the court’s order did not revive the relationship as it
had already deteriorated and terminated on September 17, 2005.
Paolucci filed her complaint against defendant on December 27,
2007, more than two years after she had knowledge of her alleged
injury and defendant’s alleged malpractice.
Therefore, her claim is
barred by K.S.A. 60–513.
V.
Conclusion
Defendant’s motion for summary judgment is granted.2 (Doc. 37).
A motion for reconsideration of this order is not encouraged.
Any such motion shall not exceed 3 double-spaced pages and shall
strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).
The response to any motion
for reconsideration shall not exceed 3 double-spaced pages.
No reply
shall be filed.
IT IS SO ORDERED.
Dated this
1st
day of August 2013, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
2
Paolucci’s motion to amend (Doc. 48) is denied as futile. See
Schepp v. Fremont County, 900 F.2d 1448, 1451 (10th Cir. 1990).
-10-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?