print page

Kentucky Federal Court Finds Jurisdiction Over Minnesota Attorney in Legal Malpractice Lawsuit

Wadlington v. Rolshouse

W.D.Ky.,2008.

Only the Westlaw citation is currently available.

United States District Court, W.D. Kentucky,

at Louisiville.

Agnes WADLINGTON, as Administratrix of the Estate of Lavonda Torain, deceased, etc., Plaintiff

v.

James ROLSHOUSE and James Rolshouse & Associates, PLLC, Defendants.

Civil Action No. 3:05CV-558-H.

April 9, 2008.

James M. Bolus, Jr., Bolus Law Office, Michael A. Augustus, Louisville, KY, for Plaintiffs.

Gregory L. Smith, Kristie Babbitt Walker, Smith & Hoskins, Louisville, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN, II, Chief Judge.

*1 This is a legal malpractice case originally filed in Jefferson Circuit Court and removed to federal court on the grounds of diversity. Plaintiffs are Agnes Wadlington (“Wadlington”), in her capacity as Administratrix of the Estate of Lavonda Torain (“Torain”), deceased, and J.D.D., Torain's minor son, by and through his Next Friend and Legal Guardian, James Day (“Day”). In their complaint, Wadlington and Day claim that Defendant James Rolshouse (“Rolshouse”) who is an attorney acted negligently in undertaking legal representation of the Estate of Lavonda Torain, specifically by failing to keep Wadlington updated regarding the status of the case and failing to inform her of the applicable statute of limitations.

Rolshouse has moved to dismiss on the grounds that he is not subject to the personal jurisdiction of Kentucky courts. No Kentucky or federal court has looked at circumstances such as ours. Consequently, no such court has found jurisdiction on the limited facts existing here. This is a difficult and close case. This Court can decide the jurisdictional issue only on a tentative basis at this time.

I.

The Court has not conducted an evidentiary hearing to determine jurisdiction. Therefore, the following factual summary derives from the pleadings and affidavits taken in the light most favorable to Wadlington and Day, and without considering Rolshouse's version of disputed facts. See Papa John's Int'l, Inc. v. Entm't Mktg. & Commc'n Int'l, Ltd., 381 F.Supp.2d 638, 639-40 (W.D.Ky.2005)(citing Dean v. Motel 6 Operating L.P., 134 F.3d 1269 (6th Cir.1998)).

In August 2003, Wadlington's daughter, Torain, died in Hopkinsville, Kentucky where Torain resided. On September 15, 2003, Wadlington, an Indiana resident, was appointed Administratrix of the Estate of Lavonda Torain in Christian County District Court, Kentucky. Torain was survived by her minor son, J.D.D., a Kentucky resident. In March 2004, Wadlington, in her capacity as administratrix, contacted Minnesota resident and attorney Rolshouse regarding potential claims against the medical providers who treated Torain prior to her death. By letter dated March 16, 2004, Rolshouse mailed a proposed contractual retainer agreement, medical malpractice questionnaire, and patient authorization for release of information to Wadlington's residence in Indiana. Wadlington signed and dated the retainer agreement, and completed the medical release and questionnaire in Indiana and returned the documents to Rolshouse's Minnesota law office. Rolshouse did not sign the retainer agreement. According to Wadlington, despite her numerous attempts to contact Rolshouse for an update on the status of the case, she did not receive communication from him or his office. The statute of limitations for any wrongful death claim in Kentucky ran on September 15, 2004, the one-year anniversary of the creation of the Estate. On November 19, 2004, Rolshouse sent Wadlington a letter declining representation.

*2 In considering a 12(b)(2) motion to dismiss, where the disputed jurisdictional facts are “intimately intertwined” with the dispute on the merits, a district court may find it more efficient and fair to rule on the basis of the parties' written submissions and reserve ultimate factual determinations on the jurisdictional issue for trial. Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214-15 (6th Cir.1989). Here, the jurisdictional facts, most notably the disputed existence of an attorney-client relationship with a Kentucky party, are intimately intertwined with resolution of the parties' underlying dispute. Thus, the Court will consider whether Wadlington and Day's written submissions make a prima facie showing of jurisdiction at this time. The Court reserves the option of finally resolving the jurisdictional dispute after discovery or at trial. See id. at 1212, 1215.

II.

For purposes of conducting the personal jurisdiction analysis, the Court must address whether an attorney-client relationship existed, and if so, it must identify the parties to that relationship.^FN1Indeed the existence of an employment relationship with an attorney is also an element of a legal malpractice claim in Kentucky. Marrs v. Kelly, 95 S.W.3d 856, 860 (Ky.2003) (citations omitted).

FN1.“A pretrial ruling denying a 12(b)(2) motion to dismiss ‘does not purport to settle any disputed factual issues germane to the underlying substantive claim.’ “ Serras, 875 F.2d at 1214 (internal citation omitted).

Rolshouse says he “never undertook to represent” Wadlington or Day in the underlying medical malpractice case. Wadlington and Day counter that Rolshouse “contracted with the Administratrix to pursue a Kentucky wrongful death claim against Kentucky doctors on behalf of Kentucky residents” and that “at the time he received the retainer agreement and completed questionnaire,” he knew or should have known that he was acting in Kentucky and practicing Kentucky law. Neither side supports their arguments on the existence (or lack thereof) of an attorney-client relationship with citation to relevant law. However, by reference to Kentucky law, the Court observes that:

[t]he lawyer/client relationship can arise not only by contract but also from the conduct of the parties. Courts have found that the relationship is created as a result of the client's reasonable belief or expectation that the lawyer is undertaking the representation. Such a belief is based on the conduct of the parties. The key element in making such a determination is whether confidential information has been disclosed to the lawyer.

Lovell v. Winchester, 941 S.W.2d 466, 468 (Ky.1997)(concluding that a person's initial consultation with an attorney prevented the attorney from later declining representation and representing the adverse party); see also Jackson v. Law Firm of O'Hara, Ruberg, Osborne, and Taylor, 875 F.2d 1224, 1230 (6th Cir.1989)(noting (before Lovell) the absence of “Kentucky case determining what constitutes an attorney-client relationship for malpractice purposes” but observing that “courts generally base their conclusions on whether a contract of representation has been executed on whether the alleged client is reasonably justified in believing that the attorney represents him.”). Those factors which courts in a variety of jurisdictions have found to support such a belief include: a consultation with an attorney, the consulting party's intent to seek legal advice, making an express contract, and an attorney's receipt of, or attempt to receive confidential information or records. See 48 AM.JUR. PROOF OF FACTS 2D Existence of Attorney-Client Relationship § 525 (2007)(collecting and summarizing factors that courts in other jurisdictions have considered in determining whether an attorney-client relationship exists).

*3 Here, after contacting Rolshouse concerning a potential claim arising out of her daughter's death in Kentucky, Wadlington promptly executed and returned the retainer agreement that Rolshouse had sent her. The cover letter, which Rolshouse had included with the retainer agreement, stated, “[o]nce the Retainer Agreement is received in our office we will begin to investigate your potential claim.”Wadlington also provided Rolshouse with her daughter's social security number and date of birth and authorized Rolshouse to seek release of her daughter's medical records which she indicated would be located, among other places, in Kentucky. In addition, she provided him with contact information for her daughter's medical providers. Wadlington attempted to contact Rolshouse regarding the status of her case on multiple occasions.

Rolshouse says there was no attorney-client contract because he never accepted or signed the retainer agreement that Wadlington returned to him and he never performed work under the alleged contract in Kentucky prior to declining representation via letter dated November 19, 2004. Rolshouse directs the Court's attention to language in the cover letter to the retainer agreement which states: “This firm does not representation [sic] you until we receive and accept your signed retainer agreement.”The retainer agreement itself provides: “If your claim, in Attorney's opinion, does not appear to have adequate merit, then attorney shall have the right at any time to cancel this Agreement by notifying client in writing by regular mail at Client's last known address. Attorney cannot, and therefore does not in any manner by entering this Agreement or otherwise, make any promises or guarantees with regard to the outcome of Client's claim.”

Under Lovell, however, the question is whether Wadlington has a “reasonable belief or expectation” that Rolshouse had undertaken representation. The Court finds that during the nearly seven months that elapsed between Wadlington returning the retainer agreement and questionnaire to Rolshouse and the date he mailed her written notice of his decision to “decline” representation, it was reasonable for her to believe that there was an attorney-client relationship. The Court reaches this conclusion by considering Wadlington's clear intent to seek legal advice on behalf of her daughter's estate through her initial contact with Rolshouse, and by Rolshouse's indication of his desire to investigate the claim by sending Wadlington the retainer agreement and accompanying forms. In addition, Wadlington's signature on the retainer agreement drafted by Rolshouse (where she agreed to a forty-five percent contingency fee) and her provision of her daughter's social security number are evidence of her belief that Rolshouse was representing her. Indeed, it seems unlikely that Wadlington would have authorized Rolshouse to obtain her daughter's medical records unless she believed there was an attorney-client relationship. Although Rolshouse was not obligated initially to investigate or otherwise act in connection with the potential claim, his decision to wait seven months to inform Wadlington that he had declined the case made it reasonable for her to believe, in the meantime, that he had undertaken representation.

III.

*4 Upon finding, for purposes of this jurisdictional analysis, that an attorney-client relationship existed, the Court must properly identify the parties involved, their interests, and their connection to Kentucky. To do so, the Court briefly examines the nature of the underlying claim, which, undisputedly arises from the death of Torain and involves a claim for medical malpractice. Regardless of where a medical malpractice suit might have been filed, for purposes of federal diversity or removal, the residency of the personal representative is irrelevant because “the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent.”28 U.S.C. § 1332(c)(2) (2000). Thus for purposes of diversity jurisdiction, Wadlington, in her capacity as administratrix of a Kentucky estate would be deemed to be a citizen only of Kentucky. The Court offers this observation as evidence of how, in other contexts, federal courts consider the relationship between an administratrix and the estate she represents.

Although Rolshouse correctly points out that undertaking representation did not necessarily obligate him to file a complaint in Kentucky, it seems highly unlikely that a medical malpractice could have been filed in any other state. After all, Torain was a Kentucky resident who died in Kentucky and was under the treatment of Kentucky doctors at the time of her death. Her estate was created by operation of Kentucky law and for this reason, the Court will apply Kentucky law to analyze whose interest Rolshouse represented following his contact with Wadlington in her capacity as administratrix of the Kentucky estate. Under Kentucky law, the appropriate cause of action for medical malpractice would have been a wrongful death suit, Ky.Rev.Stat. Ann. § 411.130(1), which must be prosecuted by the personal representative of the deceased. Richardson v. Dodson, 832 S.W.2d 888, 889 (Ky.1992); Sparks v. Craft, 75 F.3d 257, 259 (6th Cir.1996). In such suits, the administratrix is “merely a nominal plaintiff,” and the real party interest is the beneficiary of the estate which the administratrix represents. See McCoy v. Carter, 323 S.W.2d 210, 218 (Ky.1959).^FN2 The Sixth Circuit has expressly rejected the argument that the personal representative, as opposed to the beneficiary, is the real party in interest in such claims. Sparks, 75 F.3d at 261. By operation of the wrongful death statute, Torain's minor son, J.D.D. would be the sole beneficiary of any recovery. SeeKy.Rev.Stat. Ann. § 411.130(2)(c)( “If the deceased leaves a child or children, but no widow or husband, then the whole to the child or children”). Thus, J.D.D., a Kentucky resident, is the real party in interest of Torain's Kentucky estate.

FN2. Even if a personal representative is also a beneficiary, she still does not have standing to sue in her individual capacity. Cf. Richardson, 832 S.W.2d at 889.

Therefore, the Court concludes that although Wadlington would have been the nominal plaintiff by express instruction of the wrongful death statute, the real party in interest for purposes of the wrongful death claim was a Kentucky resident. Rolshouse undertook legal representation of a Kentucky estate for the ultimate benefit of a Kentucky resident. This conclusion is bolstered by the fact that Rolshouse addressed correspondence to “Agnes Wadlington/On behalf of your daughter,” that Wadlington signed the retainer agreement and releases she returned to Rolshouse as “Agnes Wadlington for Lavonda Torain” and that even Rolshouse's letter declining representation referenced the “Lavonda Torain Medical Malpractice Claim.”

IV.

*5 Having addressed the nature of the alleged attorney-client relationship, the Court now proceeds to the personal jurisdiction analysis. To determine whether personal jurisdiction exists over a nonresident defendant, the Court applies the law of the forum state subject to the constitutional limits of due process. CompuServe v.. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996). Kentucky courts “have determined that the long-arm statute within this jurisdiction allows Kentucky courts to reach the full constitutional limits of due process.”Wilson v. Case, 85 S.W.3d 589, 592 (Ky.2002). Thus, the Court need only conduct a single due process inquiry.